2003-08-08 / Columnists

From the

By Howard Schwach
From the Editor’s Desk By Howard Schwach

Finally, some judges who understands the real world.

Justices Sondra Miller, Robert Schmidt, Sandra Townes, and Stephen Crane should have their names carved in stone, memorialized in song, awarded a prize.

What did those judges, all with the state’s Appellate Division, Second Department do to earn our thanks?

They overturned a $10 million verdict against New York City and they used common sense to do it.

Here is the scenario.

Back in 1994, Carmela Mero left her car parked in a no-standing zone. Sitting in the front passenger seat was her daughter, 19-year-old Maithe Mero.

Police Officer Francis Knowles, on traffic duty in the area, comes upon the car and sees the car parked illegally and the daughter in the car.

Knowles waved at the daughter to move the car from the illegal spot. Maithe did not respond to the officer, or tell him that she did not know how to drive, did not have a license.

In attempting to move the car, she hit a curb as she rounded the corner and hit Deodat Persaud, who was walking on the sidewalk.

Persaud suffered injuries and suffered the amputation of part of his leg.

The jury found that Mero was 25 percent at fault and that the city, through its agent, PO Knowles, was 75 percent at fault. It awarded Persaud the sum of $10 million in past and future pain and suffering.

What did the police officer do wrong that cost the city a cool $10 million from an ever-decreasing tax base?

Perhaps he would have been wrong had the young daughter indicated to him that she could not drive. He then would have had two options: to force her to move the car anyway or to have ticketed the car. Had he done the first, he would have indeed been guilty of both incompetence and causing Persaud’s injuries. Had he done the latter, he would have been doing his job.

In fact, he was doing his job when he waved at the daughter to move. The fact is that she did not tell him that she could not drive, and therefore, to my mind and to the justices as well, that removed the city’s liability in the case.

Prior to the trial, the city asked for a summary judgment, claiming that the accident was the fault of the driver and her mother, not of the city.

A retired police officer, named Henry Branche, who, according to the Office of the Corporate Council, "routinely testifies against the city," testified at a hearing on the city’s motion, that it is "standard police practice" that an officer directing a person to move a car check to see that the person has a license.

Because of his testimony, the court ruled that the case had to go to trial, where "the issue of fact" as to whether Branche’s testimony was a fact was something for a jury to decide.

Despite the fact that much of the testimony of those called by the city’s attorneys disputed that statement, the jury, as it often does in such cases, ruled against the city.

The Appellate Division, however, did not agree.

"Upon a full trial record, it is apparent that the plaintiff’s expert (Branche) lacked a sound basis for his opinion that Officer Knowles should have asked Maithe Maro whether she could drive, the expert’s opinion was overwhelmingly contradicted at the trial by the evidence adduced by the municipal defendants and by the training materials relied upon by the plaintiff’s themselves," the court ruling said. "As there was no other evidence tending to establish any negligence on the part of the municipal defendants, their motion to set aside the verdict as to them should have been granted and the case should have been dismissed."

Michael O’Looney, at one time a Channel 1 News reporter and now the Deputy Commissioner For Public Information (DCPI) for the police department, issued a statement that all judges should read and take to heart.

"This decision supported the need for police officers to take reasonable action in carrying out their duties," he said. "If a person sitting in an illegally parked vehicle is asked to move it and does not know how to drive, it is incumbent upon that person to inform the officer of that fact."

I can only hope that this translates to other cases as well.

How about the man who mugged an elderly woman on the subway and was chased by a police officer? You remember the case. In running from the cops after committing a crime, the man slipped and fell in front of a subway train, losing his leg. He sued the city and the jury held the cop who was chasing him (and, by extension, the city) responsible for his injuries.

Wasn’t he responsible for his own injuries by mugging a woman in the first place, and wasn’t the cop just doing his job by chasing him?

There are literally thousands of cases where the city bounced from callenging a resident suing the city for injuries that were not the fault of the city worker or, at the least, they were accidents that were caused by a city worker in the valid performance of his or her duty.

Should people who sue the city for damages get a free walk because the city has deep pockets as a self-insurer?

A jury did not think so, and it is nice to see that some of the justices in the Appellate Division are beginning to get the picture.

Had the $10 million verdict stood, the city would have been responsible for $750,000 and the Mero family $250,000. Under the "Joint and Several Liability Law, however, the city would have wound up paying the entire amount if the Mero family could have shown that they could not afford their share.

Now, the liability is where it should be. The reduced verdict of $5 million makes the family responsible for the entire nut.

The city has a tendency to settle lawsuits against it rather than fighting them out in court.

We face some of the draconian beach rules that have become so controversial because of the drownings of three young girls almost two years ago. The girls were swept away prior to the time that the lifeguards came on duty and there were signs all up and down the beach warning that it was dangerous to swim when the lifeguards were not on duty.

The city reportedly settled the case. If that is true, then the city’s lawyers are wrong. The only responsibility for that tragic accident lies with the girls who disobeyed the obvious signs and the uncle who let them do it.

Should the signs have been larger? Should they have been in various languages? Should they have been more emphatic? What’s the difference? We both know that the city could put up a fence around the beaches and somebody would climb it to get to the water.

The city has to stop lying down, being a patsy for anybody who wants money for perceived wrongs. The court in this case was dead right. The city has to go along and do what it needs to do without worrying about lawsuits and making repressive rules because of a fear of those suits.

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