Argued June 29, 1998
June 28, 1999
APPEAL by the defendants, in an action to recover damages for personal injuries, as limited by their brief, from so much of an order of the Supreme Court (Thomas V. Polizzi, J.).
Michael D. Hess, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Julian L. Kalkstein of counsel), for appellants-respondents.
Leahey Johnson, P.C., New York, N.Y. (Michael Conforti of counsel), for respondent-appellant.
THOMAS R. SULLIVAN, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, LEO F. McGINITY, DANIEL F. LUCIANO, JJ.
On this appeal, we are asked to determine whether, under the circumstances presented here, the Office of the Chief Medical Examiner of the City of New York (hereinafter the Medical Examiner's Office) owed the plaintiff a duty of reasonable care to timely correct its records when it learned that the plaintiff's three-year old son had died of natural causes rather than from a homicide, and when it knew or had reason to know that as a consequence of the original, mistaken autopsy findings, the plaintiff was unnecessarily the target of a murder investigation for 17 months. We conclude that on this record, the breach of a duty to perform a ministerial act resulted in direct and foreseeable damage to the plaintiff, for which he may recover on a theory of negligent infliction of emotional distress.
On Friday, August 6, 1993, the plaintiff's three-year old son Andrew became ill with nausea and dry heaves. The plaintiff and his wife took the boy, their only child, to the Emergency Room at St. John's Queens Hospital in Elmhurst, Queens, but the staff there could not find the source of the problem and sent Andrew home. On the following morning, the Lauers awoke to find their son dead.
At 1:15 that same afternoon, Medical Examiner Eddy Lilavois (hereinafter Dr. Lilavois or the Medical Examiner) conducted an autopsy of Andrew's body. Noting that there had been massive hemorrhaging in the lower brain and upper cervical spine, Dr. Lilavois concluded that Andrew had died of "blunt injuries of [the] neck and brain", and ruled the death a "homicide". More detailed examination of the cerebral tissue was postponed to an unspecified future date. Meantime, a death certificate was issued officially declaring that Andrew had been murdered.
The plaintiff became the immediate focus of the ensuing criminal investigation. On the day the child's body was discovered, the police subjected the plaintiff to a 12-hour interrogation, lasting into the early morning hours of August 8, 1993. According to witness affidavits, the police presence at the child's wake and funeral was oppressive, with officers visibly stalking the boy's father, and informing mourners in a stage whisper that they had "definite proof" that the plaintiff had murdered his son. In this atmosphere of grief, poisoned by insinuation, as Andrew's casket was being closed for burial, Mrs. Lauer's uncle was heard by all to declare that the plaintiff had killed his little boy by breaking his neck.
In the course of their investigation, the police interviewed the Lauers' relatives, friends, and neighbors about the plaintiff's relationship with his son, in frank pursuit of anecdotal support for the Medical Examiner's hypothesis of homicide. Many of those interviewed, influenced by the authorities' undisguised suspicions, became openly hostile toward the plaintiff. Those turning against the plaintiff included his young wife who, given no other plausible explanation for the death of her three-year old son, fled from her husband in fear and hatred. After suing the plaintiff for divorce, Mrs. Lauer moved to New Jersey, where she pursued her campaign to see her former spouse prosecuted for the murder of her child. The plaintiff, a subway motorman, was obliged to sell the marital home and move out of his old neighborhood, where he had become a "pariah". He has since lived alone in a small apartment in a different Queens community.
Meanwhile, on August 31, 1993, some three weeks after Andrew's death, unbeknownst to the plaintiff, his wife, their family, friends, and neighbors, as well as the Police Department of the City of New York (hereinafter the Police Department), Dr. Angeline Mastri, a neuropathologist, examined the child's brain and concluded in an "Office of Chief Medical Examiner" "Neuropathology Report" that he had suffered an intracranial hemorrhage from a ruptured aneurysm due to an apparently congenital dysplasia of a branch of his left posterior cerebral artery. In other words, the child had died of natural causes. Although Dr. Lilavois participated in the August 31, 1993, examination, he issued no correction of his original autopsy findings, either on this occasion or when Dr. Mastri's report was filed with the Medical Examiner's Office on October 14, 1993. Both the 104th Precinct, which was still investigating Andrew's "murder", and the plaintiff, who was the target of that investigation, therefore remained in ignorance of the revised cause of death.
As late as mid-February 1995 the Captain of the 104th Precinct wrote to Mrs. Lauer, in response to her continuing complaints of Police Department inaction in the apprehension of her son's killer, to advise her that although the police had "sufficient probable cause" to arrest her former husband for the murder, the District Attorney was reluctant to prosecute because "the level of proof is not sufficient to gain a conviction".
In March 1995 the Daily News began an inquiry into the status of the investigation, and was told that "coroners had long ago reclassified Andrew's death as natural". It was only upon the appearance of the Daily News's expose on March 6, 1995, that the police were informed that Andrew's death was no longer considered to be a homicide. Three days later, on March 9, 1995, a new amended autopsy report was prepared and filed, attributing Andrew's death to the "spontaneous rupture of an aneurysm". Dr. Lilavois resigned. It was not until April 27, 1995, 18 months after Andrew's death and 17 months after its true cause was discovered by Drs. Mastri and Lilavois, that an amended death certificate, identifying the cause of death as natural, was prepared. This amended death certificate was signed by another physician "for Eddy Lilavois" ( Lauer v. City of New York, 240 A.D.2d 543).
After the expose, the Daily News interviewed Mrs. Lauer and several of the plaintiff's former neighbors, all of whom indicated that, notwithstanding the recent disclosure of evidence exonerating the plaintiff, they had believed in his guilt for too long to put aside their suspicions of him at this late date.
The plaintiff commenced the instant lawsuit against the City, the Medical Examiner's Office, Dr. Lilavois, and the Police Department, asserting eight causes of action sounding in intentional and negligent infliction of emotional distress, defamation, and violations of his civil rights. In response to the defendants' motion to dismiss the complaint on various grounds, the court dismissed those claims that were based upon defamation and violations of civil rights, but otherwise denied the defendants' motion. The defendants appealed from so much of the order as denied those branches of their motion which were to dismiss the first through fifth causes of action and the seventh cause of action, and the plaintiff cross-appealed from so much of the order as granted those branches of the defendants' motion which were to dismiss the sixth and eighth causes of action.
ANALYSIS I. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The defendants take the position on this appeal that the instant matter is governed by the decision in Lauer v. City of New York ( supra), in which this court affirmed the dismissal of Mrs. Lauer's complaint, finding, inter alia, that she could not recover damages for negligent infliction of emotional distress because she did not fall within "any recognized orbit of duty upon which liability may be based" ( Lauer v. City of New York, supra, at 544, citing Johnson v. Jamaica Hosp., 62 N.Y.2d 523; see, Johnson v. State of New York, 37 N.Y.2d 378, 383; Hecht v. Kaplan, 221 A.D.2d 100, 105; Rivera v. Wyckoff Hgts. Hosp., 184 A.D.2d 558, 560). However, the damages claimed by Mrs. Lauer arose out of the emotional anguish that she endured as a result of being made to believe that her husband had killed their only child. Arguably the municipal defendants owe no duty to avoid distressing the spouses of persons who become targets, rightly or wrongly, of criminal investigations. In addition, they may not be made to answer in damages to a wife who loses faith in her husband because of a misguided police inquiry. Not only would it be unreasonable to impose such a vast and amorphous duty upon the City, but the chain of causation between the City's negligence and the wife's damages is extremely attenuated.
Here by contrast, the municipal authorities assumed a direct or special duty to the plaintiff when, because of the Medical Examiner's failure to correct his records to reflect that no crime had been committed, he remained for a year and a half the principal suspect in a homicide investigation, facing a potential prison sentence of 25 years to life. Moreover, the Medical Examiner's breach of his duty was the direct and proximate cause of the plaintiff's damages in that, "but for" such negligence, the police would have discontinued their pursuit of him within a mere three weeks.
A. The direct or special duty running from the City to this plaintiff
It is well established that a municipality may not be held responsible for injuries caused by the negligent exercise by a government official of his professional judgment or discretion in the performance of his duties ( see, e.g., Charles O. Desch, Inc. v. State of New York, 60 A.D.2d 678, affd 45 N.Y.2d 882; Burgundy Basin Inn v. State of New York, 47 A.D.2d 692; Van Buskirk v. Bleiler, 46 A.D.2d 707; Gross v. State of New York, 33 A.D.2d 868). Sovereign immunity is a policy-based rule. It is founded on the realization that it would be impracticable to hold a governmental agency liable in damages every time one of its employees failed to exercise his judgment ideally ( see, e.g., Rodriguez v. City of New York, 189 A.D.2d 166, 173, 177). When sovereign immunity is expressed in terms of duty, it is said that a civil servant owes a duty of reasonable job performance only to the general public, but not to any individual member of that undifferentiated pool of beneficiaries, unless the municipality has expressly undertaken a special duty towards a particular person ( see, e.g., McCormack v. City of New York, 80 N.Y.2d 808; Mon v. City of New York, 78 N.Y.2d 309). Because the Medical Examiner's Office did not assume a special duty with respect to the plaintiff at bar, Mr. Lauer, a member of the general public, cannot sue Dr. Lilavois for his first act of negligence, in too hastily concluding that Andrew had been murdered, because in issuing that diagnosis Dr. Lilavois was exercising his judgment as a Medical Examiner for the benefit of the general public only, and so was shielded by sovereign immunity.
In contrast, where the negligent act of a government official is not discretionary but purely ministerial, a municipality may be liable in damages, particularly where the instance of ministerial negligence represents a departure from a statutory command ( see, e.g., Haddock v. City of New York, 75 N.Y.2d 478; Arteaga v. State of New York, 72 N.Y.2d 212; Tango v. Tulevech, 61 N.Y.2d 34, 40; Kagan v. State of New York, 221 A.D.2d 7). "[T]he rule to be derived from the cases is that discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" ( Tango v. Tulevech, supra, at 41; see also, Public Officers Law § 73[d]).
Here, Dr. Lilavois' obligation to advise the prosecuting authorities of his error in the original autopsy diagnosis was purely ministerial. To perform the entirely mechanical task of sending copies of the August 31, 1993, neuropathology report to the proper law enforcement officials required no exercise of discretion or reasoned thinking. Indeed, in failing to do so, Dr. Lilavois violated New York City Charter 557(g), which provides:
"The chief medical examiner shall keep full and complete records in such form as may be required by law. He shall promptly deliver to the appropriate district attorney copies of all records relating to every death as to which there is, in the judgment of the medical examiner in charge, any indication of criminality".
In the instant case, criminality had been indicated by Dr. Lilavois in his original assessment of the causes of Andrew's death, with the result that the Medical Examiner was thereafter under a statutory compulsion to promptly deliver all records relating to that death to the prosecuting authorities ( see also, 8 NYCRR 29.1[a], [b]).
No one seriously disputes that Dr. Lilavois breached this ministerial duty to correct his records and to notify the investigating authorities once it was determined that no crime had taken place. Rather, what is alleged is that even this ministerial duty ran only to the public at large and not to the plaintiff individually, that even if some duty to the plaintiff were recognized, the Medical Examiner's negligence was not otherwise tortious, and that in any event, the plaintiff's injuries were not the direct consequence of Dr. Lilavois' dereliction. For the following reasons, we are not persuaded by these arguments.
As noted above, it is only in the context of exercises of judgment or discretion that a municipality is relieved of any duty to exercise reasonable care except to the "public" at large. Where, in contrast, a purely mechanical, "ministerial duty" has been breached, a more focused duty to one or more individual members of that general public may be created thereby.
Such a conclusion is supported by traditional common-law theories regarding the interplay between duty and foreseeability. It is well established that the foreseeability of injury, without more, does not create a duty on the part of a defendant to prevent that injury from occurring ( see, e.g., Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402; Johnson v. Jamaica Hosp., supra, at 528; Pulka v. Edelman, 40 N.Y.2d 781, 785). However, once a general duty is found to exist, the "foreseeability" of injury to a specific individual generally encompassed by that duty can refocus or redefine the duty's "scope" ( Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 584; see, Pulka v. Edelman, supra). Here, the Medical Examiner had a ministerial duty to the general public (of whom the plaintiff was a member) to maintain accurate records, but he breached that duty. In view of the kind of breach at issue, i.e., failing to correct a diagnosis of homicide to one of natural death, it was foreseeable that a very limited number of persons, which encompassed the few caretakers of the three-year old child, including the plaintiff, would become the targets of a murder inquiry. To these persons, therefore, the Medical Examiner acquired a "particular duty". In the words of Justice Cardozo: "The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension" ( Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 344, 345). Put somewhat differently: "[W]henever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger" ( Heaven v. Pender, 11 QBD 503, 509, Britt, MR ; see also, Havas v. Victory Paper, 49 N.Y.2d 381, 385-386).
Another duty-creating factor to be considered is the one described by Justice Cardozo in Moch Co. v. Rensselaer Water Co. ( 247 N.Y. 160, 167), as follows: "If [a defendant's] conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward". In other words, a defendant who undertakes to act, "even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all"; and liability "may result as well from acts of omission as of commission in the fulfillment of [this] duty" ( Moch Co. v. Rensselaer Water Co., supra, at 167). "The query always is whether the putative wrongdoer has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good" ( Moch Co. v. Rensselaer Water Co., supra, at 168; see also, Schuster v. City of New York, 5 N.Y.2d 75, 82 ["where the public authorities have made active use of a private citizen in some * * * capacity", e.g., as an informant in a criminal investigation, they have assumed a duty to protect him, because they have created a "relation out of which arises a duty to go forward" if that individual is threatened with injury as a result of his cooperation with police]).
To these factors, another may be added, namely: "[W]hile the determination of the existence of a duty and the concomitant scope of that duty involve a consideration not only of the wrongfulness of the defendant's action or inaction, they also necessitate an examination of plaintiff's reasonable expectations of the care owed him by others" ( Turcotte v. Fell, 68 N.Y.2d 432, 437; see also, De Angelis v. Lutheran Med. Ctr., 58 N.Y.2d 1053, 1055; Johnson v. Jamaica Hosp., supra; Pulka v. Edelman, supra, at 785-786; Gonzalez v. Pius, 138 A.D.2d 453, 453-454).
The definition of the existence and scope of an alleged tortfeasor's "duty" is traditionally a question of law to be decided by the courts, taking into account "the larger social consequences of imposing a duty, and tailor[ing] any duty to be imposed so as to limit the legal consequences of wrongs to a reasonable scope" ( Bodaness v. Staten Is. Aid, 170 A.D.2d 637, 638; see also, Palka v. Servicemaster Mgt. Servs. Corp., supra, at 585; Eiseman v. State of New York, 70 N.Y.2d 175, 187-188; Palsgraf v. Long Is. R.R. Co., supra, at 345). Here, when we consider the foreseeability of injury to the few people situated as the plaintiff was in this case because of the criminal investigation perpetuated by Dr. Lilavois' uncorrected report, as well as, inter alia, the plaintiff's reasonable expectation that the City would use ordinary care in amending its autopsy records to reflect a finding of "no criminality", we must conclude that a narrow and focused duty arose under the circumstances, running from the Medical Examiner's Office directly to the plaintiff.
The recognition of such a duty is entirely consistent with judicial precedent. For example, in Haddock v. City of New York ( supra), the court acknowledged a duty running from the municipality directly to a 9-year-old child who had been raped by a negligently-retained City employee because, according to its own personnel procedures, the City should not have permitted a convicted felon to work in its playground. Although the likelihood of injury and the identity of the victim were even more unforeseeable in Haddock than in the matter before us — and even though the City there raised a plausible claim that it had exercised its "discretion" in the job assignment — the court had no difficulty recognizing that there had been no exercise of discretion, and that the injured child could maintain her action because a "duty" running directly from the municipality to her had been breached. To similar effect are: Kagan v. State of New York ( supra) — failure of prison officials to follow mandated protocols regarding delivery of medical care to prison inmates was ministerial negligence exposing the State to liability when it resulted in the plaintiff's loss of hearing; Marx v. State of New York ( 169 A.D.2d 642) — State liable where Housing Court Clerks, upon locating a previously misplaced case file, failed to alert marshal that an eviction warrant he was about to execute was a nullity because the underlying dispossess petition had been dismissed; National Westminster Bank, USA v. State of New York ( 155 A.D.2d 261, affd 76 N.Y.2d 507) — State liable for consequences of Clerk's negligent failure to perform ministerial act of timely recording judgment; Ford Motor Credit Co. v. State of New York ( 133 A.D.2d 980) — State responsible when Department of Motor Vehicles employees failed to issue a certificate of title to the true owner of a vehicle in violation of the Commissioner's own regulations and the Vehicle and Traffic Law. In all of these cases, the plaintiff was originally only one of a multitude of persons to whom a general duty of care was owed, but when the defendant's negligence in discharging its ministerial obligations proximately injured him, the courts did not hesitate to find that a particular duty running directly to the plaintiff had been breached.
As the foregoing discussion suggests, conventional "special duty" analysis is not strictly applicable to the facts of this case. This is because, as noted, the failed municipal service complained of was ministerial rather than discretionary. In addition, at issue here is less the City's alleged breach of a duty to bestow some "benefit" on the plaintiff as a member of the public at large as its negligent breach of a duty not to cause an affirmative injury to the plaintiff whom it had specially targeted for its own purposes (i.e., as the suspect in a murder investigation). Moreover, this is not a situation where the plaintiff is complaining that he did not get as much of a particular public benefit (e.g., police protection) as he thought he should, so that the usual concerns underlying the allocation of community resources are not implicated here ( see, e.g., Kircher v. City of Jamestown, 74 N.Y.2d 251, 256; R.B. v. County of Orange, 220 A.D.2d 401; Rodriguez v. City of New York, supra, at 172).
Nevertheless, a fair examination of the elements creating a special duty leads to the conclusion that just such a special relationship between the City and the plaintiff existed. The requisite elements are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of (or with respect to) the party who was injured, (2) knowledge on the part of the municipality's agents that inaction could lead to harm, (3) some form of direct contact between the municipality's agents and the injured party, and (4) that party's justifiable reliance on the municipality's affirmative undertaking ( see, e.g., Kircher v. Town of Jamestown, supra; Cuffy v. City of New York, 69 N.Y.2d 255; O'Connor v. City of New York, 58 N.Y.2d 184). Here, the City affirmatively undertook to investigate the death of the plaintiff's child because the Medical Examiner's Office had declared it to be a homicide. The Medical Examiner knew or had reason to know that his inaction — i.e., his failure to correct his records to indicate that the child's death had been natural — could result in injury to the person(s) who remained the target(s) of police suspicion. Indeed, the municipality's agents, in the form of the police, had been in direct contact with the plaintiff. The plaintiff detrimentally relied in the only way a helpless citizen could under the circumstances: he trusted that the municipal authorities would competently perform their duties and would find the real murderer, or else that they would ascertain what had actually caused his child's death.
Finally, the plaintiff's claim should not be rejected because the injury complained of was merely emotional distress. The negligent infliction of emotional distress is an actionable wrong like any other recognized tort, provided that the elements of duty, breach, proximate causation, and damages are established. Recovery for emotional harm to one subjected directly to a tortious act may not be disallowed so long as the evidence is sufficient to show causation and substantiality of the harm suffered, together with a guarantee of genuineness ( see, Johnson v. State of New York, supra, at 383-384; see also, Battalla v. State of New York, 10 N.Y.2d 237, 242; Ferrara v. Galluchio, 5 N.Y.2d 16, 21-22; see also, Tobin v. Grossman, 24 N.Y.2d 609, 613). There is no question that these standards of substantiality and genuineness have been satisfied in the matter before us.
B. Dr. Lilavois' negligence directly injured the plaintiff:
Various arguments are raised on the City's behalf to suggest that the plaintiff was peripheral to the orbit of intersecting municipal duties, and that any injury to him was purely consequential and therefore not compensable ( see, e.g., Johnson v. Jamaica Hosp., supra; Kennedy v. McKesson Co., 58 N.Y.2d 500, 506; Johnson v. State of New York, supra). Thus, for example, it is submitted by the City that (1) the Medical Examiner's Office is not part of the law enforcement agency which pursued the plaintiff, (2) Dr. Lilavois did not know that the plaintiff was a suspect or did not expressly undertake to perform his job well for him, (3) Dr. Lilavois' duty was only to law enforcement officials and/or the general public, (4) Dr. Lilavois' breach of his duty to these entities hurt the District Attorney and the police directly, but the plaintiff only secondarily, and (5) Dr. Lilavois is not responsible for the behavior of the Police Department, while the Police Department cannot be held accountable for Dr. Lilavois' negligent perpetuation of his misdiagnosis of the cause of Andrew's death.
However, it is beyond dispute that the Police Department investigates death only when the Medical Examiner's Office declares it to be a homicide. This fact, which is known to the Medical Examiner's Office, contributes to the weighty responsibility of the office. There is thus, on the peculiar facts of this case, a direct chain of duty, and a comparably direct chain of causation, running from the seminal negligence of the Medical Examiner in failing to correct the autopsy records to the 17 unnecessary months of emotional distress suffered by the plaintiff. As noted above, had Dr. Lilavois revised his official report when the true cause of Andrew Lauer's death was known, the police would have, in all probability, discontinued their investigation on August 31, 1993. Dr. Lilavois' failure to perform the perfunctory ministerial task of amending his records was therefore directly responsible for the protracted police investigation, which was only the most proximate cause of the plaintiff's emotional distress ( see, e.g., Martinez v. Long Is. Jewish Hillside Med. Ctr., 70 N.Y.2d 697; Brown v. New York City Health Hosps. Corp., 225 A.D.2d 36, 44; Hecht v. Kaplan, supra).
II. THE REMAINING ISSUES ON THIS APPEAL
As we held in the companion case brought by Mrs. Lauer ( Lauer v. City of New York, 240 A.D.2d 543, supra), the plaintiff may not recover damages from the municipal defendants for intentional infliction of emotional distress ( see also, Wheeler v. State of New York, 104 A.D.2d 496, 498; DeLesline v. State of New York, 91 A.D.2d 785, 786; La Belle v. County of St. Lawrence, 85 A.D.2d 759, 761).
The defendants are entitled to dismissal of the plaintiff's eighth cause of action alleging a civil rights violation ( see, Creary v. Village of Mamaroneck, 110 A.D.2d 870, 871; see also, Howe v. Village of Trumansburg, 199 A.D.2d 749; Bryant v. City of New York, 188 A.D.2d 445, 446).
There is no merit to the plaintiff's remaining contention that the defendants may not raise arguments outside of the inaccurate description of the order appealed from in their notice of appeal, where, in any event, that notice of appeal goes on to specify that the defendants are "appealing from each and every part of said order as well as from the whole thereof" (CPLR 5520[c]; see also, Matter of Lust, 35 A.D.2d 997).
Accordingly, the order is modified by (1) deleting the provision thereof denying those branches of the defendants' motion which were to dismiss those causes of action which were to recover damages for intentional infliction of emotional distress and substituting therefor a provision granting those branches of the defendants' motion, and (2) deleting the provision thereof granting that branch of the defendants' motion which was to dismiss so much of the eighth cause of action as asserted a cause of action to recover damages for negligent infliction of emotional distress and substituting therefor a provision denying that branch of the defendants' motion.
McGINITY and LUCIANO, JJ., concur.
The plaintiff, Edward G. Lauer, was suspected by the police of having beaten his son to death based upon autopsy findings and an entry in a death certificate prepared by the defendant Eddy Lilavois, M.D., an employee in the Office of the Chief Medical Examiner of the City of New York, to the effect that the death was a homicide. It was subsequently determined that the child died from natural causes — to wit: a ruptured brain aneurysm. Dr. Lilavois delayed some 17 months in revising his autopsy report to reflect this fact, during which time the police actively pursued an investigation of the plaintiff as a homicide suspect. The plaintiff and his estranged wife, Lisa Lauer, subsequently commenced separate actions against, among others, Dr. Lilavois and the City of New York, seeking to recover for the emotional harm they suffered as a result of the incident. Lisa's action was dismissed ( see, Lauer v. City of New York, 240 A.D.2d 543). The plaintiff contends that his action should not meet a similar fate because he, unlike Lisa, was the actual focus of the criminal investigation. The question with which we are thus confronted is whether the ministerial duties of a Medical Examiner to maintain appropriate records and to provide them to the District Attorney should be extended to any member of the general public who becomes the subject of a criminal investigation into the death of a particular person. Since a reasoned and dispassionate review of relevant legal principles compels the conclusion that they should not, I must dissent from the majority's position on this appeal. Under my reading of the law, a former homicide suspect may not recover for the emotional harm resulting from a police investigation which is occasioned by a Medical Examiner's failure to properly perform a ministerial obligation.
Three-year-old Andrew Lauer died on August 7, 1993. Later that same day, Dr. Lilavois performed an autopsy on the body. The resulting autopsy report indicated that Dr. Lilavois observed bruises on the child's face and neck and internal hemorrhage in the neck, upper spine, and brain. Thus, Dr. Lilavois listed the cause of death as "[b]lunt injuries of neck and brain" and the manner of death as "[h]omicide", although the report also indicated that Andrew's brain would be preserved for further examination at a future date. On the following day, Dr. Lilavois signed a death certificate in accordance with his findings.
On August 31, 1993, Dr. Angeline R. Mastri, a neuropathologist, conducted a more detailed study of Andrew's brain in Dr. Lilavois' presence. In a report prepared on October 13, 1993, and signed by Dr. Mastri on the following day, the neuropathologist determined that Andrew had experienced the sudden rupture of a brain aneurysm. Despite this knowledge, Dr. Lilavois neglected to revise his autopsy report to reflect that the child died of natural causes until approximately 17 months later, on March 9, 1995, after a story about the case appeared in a newspaper. Once the autopsy findings were revised, the criminal investigation of the plaintiff, which had commenced on the date of Andrew's death, finally ceased. Dr. Lilavois resigned his position.
The plaintiff commenced this action against Dr. Lilavois, the Office of the Chief Medical Examiner of the City of New York, the City of New York, and the Police Department of the City of New York by filing a summons and complaint on November 3, 1995. The complaint contained eight causes of action. The first six causes of action sought to recover damages for negligent and intentional infliction of emotional distress and for defamation arising from the erroneous conclusions reached by Dr. Lilavois in his initial autopsy report and in the child's death certificate, and from statements made and actions taken by the investigating police detectives in the first few days following Andrew's death. The seventh cause of action sought to recover for the emotional distress experienced by the plaintiff as a result of the failure to correct the autopsy records and death certificate and the failure to communicate the neuropathology findings set forth in the October 1993 report to law enforcement authorities. The eighth cause of action alleged, inter alia, a violation of the plaintiff's civil rights as a consequence of the initial erroneous autopsy report, the failure to correct it in timely fashion, and the criminal investigation of the plaintiff.
As previously noted, the plaintiff's estranged wife separately commenced a similar action against Dr. Lilavois and the City of New York, asserting causes of action for negligent and intentional infliction of emotional distress. That action was dismissed, inter alia, for failure to state a cause of action, in a judgment dated August 8, 1996.
On or about August 13, 1996, the defendants in this action likewise moved to dismiss the plaintiff's complaint on the ground, among others, that it failed to state a cause of action. The Supreme Court granted the motion only to the extent of dismissing the sixth cause of action, sounding in defamation, as untimely, and the eighth cause of action, inter alia, to recover damages for violation of the plaintiff's civil rights, for failure to state a cognizable claim. The defendants have appealed from so much of the order as denied those branches of their motion which were to dismiss the first through fifth causes of action and the seventh cause of action. The plaintiff cross-appeals from so much of the order as granted that branch of the defendants' motion which was to dismiss the eighth cause of action. For the reasons which follow, I would dismiss the remaining causes of action.
Addressing the plaintiff's cross appeal first, I find that the dismissal of the eighth cause of action was proper. The mere allegation that the plaintiff was harmed in his reputation as a result of the defendants' conduct does not rise to the level of a constitutionally-protected liberty interest ( see, Valmonte v. Bane, 18 F.3d 992, 999-1001), nor may the municipal defendants be held liable solely on the theory of respondeat superior and in the absence of an official policy or custom which transgressed the plaintiff's rights ( see, Howe v. Village of Trumansburg, 199 A.D.2d 749; Bryant v. City of New York, 188 A.D.2d 445; Creary v. Village of Mamaroneck, 110 A.D.2d 870). Moreover, to the extent that the plaintiff claims that he was defamed by the entries in the initial autopsy report and death certificate, the Supreme Court correctly determined that these statements constituted medical findings regarding the child which did not necessarily implicate any particular individual and certainly were not directly defamatory of the plaintiff.
An analysis of the defendants' appeal requires greater discussion. At the outset, the plaintiff contends that the language employed in the defendants' notice of appeal limits their appeal to only that portion of the order which denied that branch of their motion which was to dismiss the complaint as against Dr. Lilavois. Like the majority, I find this contention to be without merit. While the notice of appeal did specifically refer to that aspect of the order, it also expressly stated that "this appeal is taken from each and every part of said order as well as from the whole thereof". Although the plaintiff glosses over this language in arguing that the appeal is strictly limited to the defendant Dr. Lilavois, it is clear that no such limitation exists and that the defendants have expressly appealed from the entire order ( see, CPLR 5515; Seligsberg v. Schepp, 79 App. Div. 626; cf., City of Mount Vernon v. Mount Vernon Hous. Auth., 235 A.D.2d 516). Accordingly, on this appeal the defendants are entitled to challenge any aspect of the order by which they are aggrieved.
Turning to the merits, I find that the first five causes of action must be dismissed, since the recovery they seek is premised exclusively upon Dr. Lilavois' erroneous judgments as to the cause and manner of death in the initial autopsy report and death certificate. In fact, all of the examples of emotional trauma cited by the plaintiff relate to incidents occurring within the first few days following the autopsy, before the neuropathology study had been performed and Dr. Lilavois had reason to amend his findings. Dr. Lilavois' initial, discretionary determination, involving the exercise of reasoned judgment in the performance of official duties, is immune from suit ( see, e.g., McCormack v. City of New York, 80 N.Y.2d 808; Mon v. City of New York, 78 N.Y.2d 309). Indeed, "discretionary * * * acts involve the exercise of reasoned judgment which could typically produce different acceptable results" ( Tango v. Tulevech, 61 N.Y.2d 34, 41), and "when official action involves the exercise of discretion, the [public] officer is not liable for the injurious consequences of that action even if resulting from negligence or malice" ( Tango v. Tulevech, supra, at 40). Simply put, Dr. Lilavois performed an autopsy on the child's body, made various objective scientific observations, and applied his own knowledge and experience to those observations to conclude, albeit erroneously, that Andrew died from blunt injuries to the neck and brain. This exercise of professional judgment simply is not actionable, a fact which the majority readily acknowledges at the same time that it makes highly dramatic and inflammatory references to Andrew's funeral and to other events which preceded the discovery of Dr. Lilavois' error and which therefore are not compensable. In any event, even if the erroneous judgment of Dr. Lilavois was actionable, the following analysis, which I believe mandates the dismissal of the seventh cause of action, would in my estimation similarly require that the first five causes of action be dismissed.
The seventh cause of action is the only claim which seeks to impose liability upon the defendants for intentional and negligent infliction of emotional distress based on Dr. Lilavois' failure to promptly revise the initial erroneous autopsy report and death certificate and to advise law enforcement authorities of the neuropathology findings. To the extent that this cause of action (or any other portion of the complaint) alleges an intentional infliction of emotional distress, the principle of stare decisis dictates that the claim must be dismissed. Indeed, in our prior decision affirming the dismissal of Lisa Lauer's complaint based on the same allegations of wrongdoing, we observed as follows:
"The complaint failed to state a cause of action for * * * intentional * * * infliction of emotional distress. It is well settled that public policy bars claims sounding in intentional infliction of emotional distress against a governmental entity ( see, Wheeler v. State of New York, 104 A.D.2d 496, 498; LaBelle v. County of St. Lawrence, 85 A.D.2d 759, 761; Van Buskirk v. Bleiler, 46 A.D.2d 707; see also, Adams v. New York City Tr. Auth., 211 A.D.2d 285, 294, affd 88 N.Y.2d 116). Moreover, none of the allegations in the complaint can serve as the basis for this cause of action. Specifically, the acts alleged in the complaint, including the failure to amend the death certificate in a timely fashion, are not so extreme, outrageous, utterly reprehensible, and intolerable in a civilized society so as to sustain a cause of action for intentional infliction of emotional distress ( see, Howell v. New York Post Co., 81 N.Y.2d 115, 121-122; Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143-144). Nor can it be said that any acts alleged satisfy the scienter element of the tort ( see, Howell v. New York Post Co., supra)" ( Lauer v. City of New York, 240 A.D.2d 543, 544, supra [emphasis added]).
By parity of reasoning, the plaintiff's current allegations that Dr. Lilavois unduly delayed in correcting the official records and in communicating those corrections to the District Attorney and to the police fail to state a viable claim for intentional infliction of emotional distress.
A similar result obtains with regard to the plaintiff's claim of negligent infliction of emotional distress premised on the same allegations. Indeed, in Lisa Lauer's appeal, we rejected that claim as follows:
"Similarly, the plaintiff failed to allege a cause of action for negligent infliction of emotional distress. The plaintiff's allegations do not establish that she fell within any recognized orbit of duty upon which liability may be based ( see, Rivera v. Wyckoff Hgts. Hosp., 184 A.D.2d 558, 560; see also, Johnson v. State of New York, 37 N.Y.2d 378, 383; Johnson v. Jamaica Hosp., 62 N.Y.2d 523; Hecht v. Kaplan, 221 A.D.2d 100, 105)" ( Lauer v. City of New York, supra, at 544).
Notwithstanding the foregoing, the plaintiff maintains that, owing to his status as a criminal suspect in the death of his son, he may pursue a negligent infliction of emotional distress claim based on the Medical Examiner's failure to keep accurate records and to notify the authorities of amendments thereto. Contrary to the conclusion reached by the majority, this argument is at odds with the established law applicable to ministerial duty and to negligent infliction of emotional distress.
Unlike a discretionary act, which involves the exercise of reasoned judgment, "a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" ( Tango v. Tulevech, 61 N.Y.2d 34, 41, supra). The distinction is not without consequence, for while a discretionary official act enjoys governmental immunity with regard to any injurious results which it produces, "when the action is exclusively ministerial, the [public] officer will be liable [for the injurious consequences thereof], if it is otherwise tortious and not justifiable pursuant to statutory command" ( Tango v. Tulevech, supra, at 40).
To be sure, the Office of the Chief Medical Examiner of the City of New York has the ministerial obligation to correct its records when warranted, and to advise prosecuting authorities of relevant information pertaining to evidence of criminality. Indeed, these duties are set forth in New York City Charter § 557(g), which reads as follows:
"The chief medical examiner shall keep full and complete records in such form as may be provided by law. The chief medical examiner shall promptly deliver to the appropriate district attorney copies of all records relating to every death as to which there is, in the judgment of the medical examiner in charge, any indication of criminality. Such records shall not be open to public inspection".
There can be no genuine dispute that the actions of Dr. Lilavois in this case violated the foregoing provision, since he failed to promptly correct the records of the Office of the Chief Medical Examiner and to notify the District Attorney's Office when he learned, as a result of the October 1993 neuropathology report, that Andrew had died from natural causes. In fact, as the plaintiff argues, Dr. Lilavois' neglect may well have constituted professional misconduct within the meaning of 8 NYCRR 29.1(a), (b)(6). However, it does not follow that the plaintiff may maintain a claim for damages arising from Dr. Lilavois' neglect. The concept of ministerial negligence merely removes the issue of governmental immunity from a given case — it does not provide a basis for tort liability where none would otherwise exist. Rather, once it is established, ministerial negligence simply permits a plaintiff to pursue a remedy for the breach of a duty of care which was already owed to him. For this reason, the plaintiff can draw no solace from the "ministerial neglect" cases upon which he relies. Unlike the matter before us, each of those cases involved a ministerial obligation which included a recognized duty of care owed directly to the suing plaintiff, such that the failure to comply with the obligation also constituted a breach of the duty of care ( see, e.g., Haddock v. City of New York, 75 N.Y.2d 478 — failure of City to follow ministerial obligation of complying with its own personnel procedures for employees with criminal records resulted in tort of negligent retention of a dangerous employee; Kagan v. State of New York, 221 A.D.2d 7 — failure of prison personnel to follow own ministerial health care protocols resulted in breach of State's recognized duty to provide reasonable and adequate medical care to inmates; National Westminster Bank, USA v. State of New York, 155 A.D.2d 261, affd 76 N.Y.2d 507 — clerk's failure to comply with ministerial obligation of timely docketing claimant's judgment breached duty of care owed to claimant by permitting judgment debtor to convey land free of claimant's encumbrance, thereby frustrating claimant's ability to execute on the judgment; Ford Motor Credit Co. v. State of New York, 133 A.D.2d 980, 981 — issuance of motor vehicle title to lessee of vehicle rather than to owner, as expressly required by governing regulation, constituted ministerial neglect for which owner could sue).
No such recognized duty of care has been alleged or established in this case. The failure of Dr. Lilavois to promptly correct documents and advise the authorities of the new findings does not constitute the breach of any duty owed to the plaintiff. The recordkeeping obligations of the Office of the Chief Medical Examiner create nothing more than a generalized duty owed to the public at large. Likewise, the obligation to turn over autopsy and related records in cases where criminal conduct is suspected runs expressly, and exclusively, to the appropriate District Attorney ( see, New York City Charter § 557[g], supra). The execution of duties by the Office of the Chief Medical Examiner is not intended to benefit any particular member or group of the general public. The fact that the plaintiff, as the subject of a homicide investigation, indirectly suffered emotional harm from Lilavois' ministerial omission does not transform that omission into a breach of duty which would support a claim for negligent infliction of emotional distress. Indeed, relevant decisional law strongly militates against the expansion of this tort to recognize such a duty.
The courts of New York have repeatedly expressed reluctance to broaden the very limited group of situations which will support claims for negligent infliction of emotional distress. Hence, as observed in Johnson v. State of New York ( supra, at 381), "[i]n the absence of contemporaneous or consequential physical injury, courts have been reluctant to permit recovery for negligently caused psychological trauma, with ensuing emotional harm alone". The reason for such reticence is twofold — to prevent the proliferation of trivial and/or fraudulent claims ( see, Johnson v. State of New York, supra), and to keep liability for emotional injury within reasonable and manageable parameters ( see, Tobin v. Grossman, 24 N.Y.2d 609, 619). Hence, "[w]hile physical injury is no longer a necessary element, a cause of action to recover damages for negligent infliction of emotional distress must generally be premised upon conduct which `unreasonably endangers' the plaintiff's physical safety" ( De Rosa v. Stanley B. Michelman, P. C., 184 A.D.2d 490, 491; see, Impastato v. Hellman Enters., 147 A.D.2d 788). There has been no claim of physical endangerment in this case. More to the point, the plaintiff has completely failed to establish the existence of a duty of care owed directly to him, or a breach thereof which directly injured him. Both of these elements consistently have been required by the courts in order to state a valid claim for negligent infliction of emotional distress ( see, Martinez v. Long Is. Jewish Hillside Med. Ctr., 70 N.Y.2d 697, 699 — claim upheld where emotional injury complained of is not a consequential harm occasioned by the breach of a duty owed to another, but where "[the plaintiff's] mental anguish and depression are the direct result of defendants' breach of a duty owed directly to her"; Johnson v. Jamaica Hosp., 62 N.Y.2d 523, 526 — "parents may not recover damages from defendant hospital for any mental distress or emotional disturbances they may have suffered as a result of the direct injury inflicted upon their daughter by defendant's breach of its duty of care to her"; Kennedy v. McKesson Co., 58 N.Y.2d 500, 506 — "there is no duty to protect from emotional injury a bystander to whom there is otherwise owed no duty, and, even as to a participant to whom a duty is owed, such injury is compensable only when a direct, rather than a consequential, result of the breach"; Johnson v. State of New York, supra, at 383 — claim for emotional harm resulting from hospital erroneously advising the claimant that her mother had died was upheld where "the hospital owed claimant a duty to refrain from such conduct" and "the injury was inflicted by the hospital directly on claimant by its negligent sending of a false message announcing her mother's death"; Brown v. New York City Health Hosps. Corp., 225 A.D.2d 36, 44 — "[w]here a duty is owed, the breach of that duty resulting directly in emotional harm is compensable"; Hecht v. Kaplan, 221 A.D.2d 100, 105 — "a cause of action to recover damages for the negligent infliction of emotional distress * * * must be premised upon a breach of duty owed directly to the plaintiff").
There is simply no basis in this case upon which the majority may conclude that the duty of Dr. Lilavois to report information to law enforcement authorities also constitutes a duty owed directly to the plaintiff as a homicide suspect. The record contains no indication that Dr. Lilavois even knew of the plaintiff's existence, let alone that the plaintiff had become the chief suspect in Andrew's death. Nevertheless, even if Dr. Lilavois could reasonably have foreseen that the plaintiff might suffer emotional harm as a result of a failure to perform his reporting obligations, such foreseeability alone is not sufficient to create a duty of care where none otherwise exists. It is well settled that "[d]uty in negligence cases is [not] defined * * * by foreseeability of injury" ( Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402; see, e.g., Johnson v. Jamaica Hosp., 62 N.Y.2d 523, 528, supra — where a newborn infant was abducted from a hospital nursery, the foreseeable emotional harm suffered by the parents was not compensable because "[t]he foreseeability that such psychic injuries would result from the [abduction] does not serve to establish a duty running from [the hospital to the parents]").
Moreover, it must be remembered that the Office of the Chief Medical Examiner "cannot bring criminal charges against anyone. Its sole purpose is to give an impartial scientific determination of the cause of a person's death and not to determine whether an individual is guilty, or not guilty, of a crime" ( People v. Washington, 196 A.D.2d 346, 350, affd 86 N.Y.2d 189). In fact, our Court of Appeals has pointedly stated that the Office of the Chief Medical Examiner "is not a law enforcement agency" ( People v. Washington, 86 N.Y.2d 189, supra, at 192). Thus, while the police may have acted in reliance upon the findings of Dr. Lilavois as reported to the District Attorney's Office, the connection between Dr. Lilavois' negligence and the plaintiff's injuries is far too remote and consequential to constitute the "direct" harm required by relevant case law for a viable claim of negligent infliction of emotional distress.
Similarly, liability in this case cannot be premised upon the majority's vague theory of an implied "special relationship" or "special duty", a theory rejected by our court in Lisa Lauer's appeal ( see, Lauer v. City of New York, 240 A.D.2d 543, supra). Where, as here, a governmental entity has a duty to perform some obligation for the benefit of the public at large, an individual member of the public cannot maintain an action for a breach of that duty unless he establishes the existence of a "special relationship" by demonstrating "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" ( Cuffy v. City of New York, 69 N.Y.2d 255, 260). Here, the Office of the Chief Medical Examiner never promised or affirmatively undertook any special efforts on behalf of the plaintiff. Thus, the plaintiff perforce could not have justifiably relied upon such a promise or undertaking. Moreover, there is no suggestion that Dr. Lilavois or any of his fellow employees had any direct contact with the plaintiff out of which a "special relationship" could arise. Hence, the requisite elements for a "special duty" clearly are not met in this case, and the majority's emphasis on the status of the plaintiff as a foreseeable homicide suspect does not constitute an adequate substitute for these requirements so as to create a duty which ran specifically to him ( see generally, Kircher v. City of Jamestown, 74 N.Y.2d 251; O'Connor v. City of New York, 58 N.Y.2d 184). Indeed, the majority now extends the "special relationship" concept discussed in Cuffy far beyond its previous boundaries, dispensing with the requirements of affirmative duty, direct contact, and justifiable reliance and substituting in their place mere foreseeability. I submit that the question of whether such a dramatic departure from established principles is appropriate should be left up to the Court of Appeals which, after all, is the body which established those principles in the first place.
Extension of the reporting duties of the Office of the Chief Medical Examiner to criminal suspects in homicide investigations opens up an entirely new and potentially limitless area of municipal tort liability. By their very nature, criminal investigations depend upon the ongoing collection and analysis of information, a process which often results in a constantly evolving list of suspects in any given case. By the plaintiff's reasoning, adopted by the majority, any stress or emotional harm experienced by an individual in the context of such an investigation as the indirect result of a ministerial error by an employee of the Chief Medical Examiner would be compensable. The defendants would thus be answerable in damages to an unlimited number of potential plaintiffs, expanding the scope of liability far beyond what is reasonable and consistent with the duties and function of the Office of the Chief Medical Examiner. Curiously, while the majority applauds the dismissal of Lisa Lauer's complaint because "it would be unreasonable to impose such a vast and amorphous duty upon the City" and because "the chain of causation between the City's negligence and the wife's damages is extremely attenuated", it perpetuates those very same defects by upholding the plaintiff's claim for negligent infliction of emotional distress in this case. Such a result thwarts the very policy of controlling the limits of liability which our courts have strived to observe ( see generally, Hutt v. Lumbermens Mut. Cas. Co., 130 A.D.2d 546). Indeed, "[w]hile it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree" ( Tobin v. Grossman, 24 N.Y.2d 609, 619, supra). Accordingly, "[e]veryone who has been damaged by an interruption in the expected tenor of his life does not have a cause of action. The law demands that the equation be balanced; that the damaged plaintiff be able to point the finger of responsibility at a defendant owing, not a general duty to society, but a specific duty to him" ( Johnson v. Jamaica Hosp., 62 N.Y.2d 523, 527, supra). The plaintiff in the case before us can point to no such duty of care owed directly to him. Therefore, while it is clear that he has suffered a real and substantial injury, he has not suffered a compensable one.
Accordingly, I would reverse the order insofar as appealed from, grant those branches of the motion which were to dismiss the first, second, third, fourth, fifth, and seventh causes of action, and affirm the order insofar as cross-appealed from.
McGINITY, J., and LUCIANO, J., concur with FRIEDMANN, J.; SULLIVAN, J.P., concurs in part and dissents in part in a separate opinion, in which ALTMAN, J., concurs.
ORDERED that the order is modified by (1) deleting the provision thereof denying those branches of the defendants' motion which were to dismiss those causes of action which were to recover damages for intentional infliction of emotional distress and substituting therefor a provision granting those branches of the defendants' motion, and (2) deleting the provision thereof granting that branch of the defendants' motion which was to dismiss so much of the eighth cause of action as asserted a cause of action to recover damages for negligent infliction of emotional distress and substituting therefor a provision denying that branch of the defendants' motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs payable to the plaintiff.