UNITED
STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Virginia
L Bonsignore,
individually
and as Administratrix of the Estate of
Blase
A.Bonsignore, deceased,
Plaintiff-Appellee-Cross-Appellant,
v.
City
of New York,
Defendant-Appellant-Cross-Appellee
Docket
No. 81-7733,
No.
637 -- August Term, 1981
683
F.2d 635
1982 U.S. App. Lexis 18337
February
8, 1982, Argued
June
15, 1982, Decided
Oakes, Newman and
Pierce, Circuit Judges. [*636]
NEWMAN, Circuit Judge:
This diversity case requires consideration of both negligence
and proximate cause in the context of an unusual factual setting. Virginia
Bonsignore sued the City of New York for damages and wrongful death for its
negligence in requiring her husband, a member of the New York City Police
Department, to carry a gun at all times while within City limits. On December
20, 1976, Officer
Bonsignore, using his.32 caliber “off-duty” revolver, shot and seriously
wounded his wife and then committed suicide by shooting himself in the head; as
a result of the shooting, Mrs. Bonsignore sustained brain damage and serious
motor dysfunction. Although the jury rejected Mrs. Bonsignore’s claim against
the City for causing her husband’s wrongful death, it awarded her $300,000
compensatory damages and $125,000 punitive damages on her claim for negligently
causing her injuries. The City moved for a judgment n.o.v. or, in the
alternative, for a new trial, contending that the verdict was not supported by
the evidence and was unreasonable as a matter of law. The District Court for
the Southern District of New York (Abraham D. Sofaer, Judge) denied the City’s
motion, Bonsignore v. City of New York, 521 F. Supp. 394 (S.D.N.Y. 1981), and
the City appeals. [*637]
The City’s principal contention on appeal is that the jury erred
in finding it negligent. The evidence was submitted to the jury on two theories
of negligence: whether “under the circumstances [the City] reasonably should
have known that Mr. Bonsignore was dangerous and should not have been permitted
to carry a gun” or whether the City had failed to “adopt or implement a
sufficiently effective program of psychological screening and monitoring of
police officers,” Tr. at 808. With regard to the second theory, the Court instructed the jury that the City has broad
discretion in deciding “what institutional mechanisms to adopt to identify
officers unfit to carry guns,” id. at 809, and cannot be held liable because
the system it chose appears imperfect or insufficient or because the jury would
have chosen a different system. Rather, the jury must find that the City
“failed to address
itself with due diligence prior to December, 1976 to the problem of reasonably
ensuring that police officers are fit to carry guns without endangering
themselves or the public,” or if “the measures adopted for that purpose were so
deficient that no reasonable person could have accepted the City’s judgment.”
Bonsignore v. City of
New York, supra, 521 F. Supp. at 397 (quoting Tr. at 809).
The jury by special verdict found the City negligent based on
this second theory, and there was substantial evidence to support the jury’s
finding. The City had
instituted several programs in an effort to identify and counsel policemen
suffering from some mental or emotional disability. The “Early Warning System”
was intended to identify problem officers by the use of centrally maintained
files, on which such information as excessive sick leave, complaints, and poor
performance evaluations would be noted by placing colored dots manually on the
files. However, the jury could have found that the Early Warning System was
ineffectual for several reasons. First,
the characteristics monitored by the use of colored dots were never validated
as reliable indicators of mental or emotional problems in police officers. In addition,
the evidence indicated that a “code of silence” among policemen, which inhibits
an officer from reporting on or in any way causing harm to a fellow officer,
doomed the system, since it relied in great measure on affirmative reporting by
policemen. Finally, the Early Warning System did not work as a practical
matter. Bonsignore was never identified as a problem officer, despite
his displaying many of the signs that should have flagged him as having mental
or emotional problems, such as excessive sick leave, incomplete performance
reports, and assignment as the Nineteenth Precinct’s attendant (or “broom”), a
limited-duty assignment, for thirteen years.
Although
the City developed other programs to identify violence-prone officers, officers
who used excessive force, and officers who were involved in a large number of
auto accidents, the jury was entitled to find that the City either dropped
these programs or never fully implemented them. Moreover, there was no evidence that the City reviewed and evaluated
the adequacy of the programs that were implemented. The City did show that 1500
of the 25,240 Police Department members had been examined by a psychiatrist,
psychologist, or alcoholism counselor in 1976 and that 800 officers were
subjected to constant monitoring, but this evidence, while significant, did not
preclude the jury from reasonably concluding that the City was negligent
because of deficient procedures in regard to identifying police officers who
should not carry weapons.
The jury also could have reasonably found that the City’s
negligence was the proximate cause of Mrs. Bonsignore’s injuries. Proximate
cause, which reflects a judgment regarding the permissible extent of liability
for negligence, limits a defendant’s
liability to those foreseeable consequences that the defendant’s negligence was
a substantial factor in producing. [Note 1] See [*638] Derdiarian v. Felix
Contracting Corp., 51 N.Y. 2d 308, 314-15, 414 N.E.2d 666, 670, 434 N.Y.S.2d
166, 169 (1980). In this case the consequences of the City’s negligence were
foreseeable within a degree of acceptability recognized in New York law, see
Derdiarian v. Felix Contracting Corp., supra; Nallan v. Helmsley-Spear, Inc.,
50 N.Y.2d 507, 520-21, 407 N.E.2d 451, 459, 429 N.Y.S.2d 606, 614-15 (1980);
Pagan v. Goldberger, 51 A.D.2d 508, 382 N.Y.S.2d 549 (2d Dep’t 1976), and did
not approach that degree of attenuation condemned in Palsgraf v. Long Island
Railroad, 248 N.Y. 339, 162 N.E. 99 (1928). The fact that Mrs. Bonsignore’s injuries were immediately
caused by the affirmative act of Officer Bonsignore does not relieve the City
of responsibility. “Where the acts of a third person intervene between the
defendant’s conduct and the plaintiff’s injury, the causal connection is not
automatically severed. In such a case, liability turns upon whether the
intervening act is a normal and foreseeable consequence of the situation
created by the defendant’s negligence. . . .” Derdiarian v. Felix Contracting
Corp., supra, 51 N.Y.2d at 315, 414 N.E.2d at 670, 434 N.Y.S.2d at 169; see
Nallan v. Helmsley-Spear, Inc., supra, 50 N.Y.2d at 520-21, 407 N.E.2d at 459,
429 N.Y.S.2d at 614; Restatement (Second) of Torts §§ 448-449 (1965).
In this case both the type of harm that occurred and the person
on whom the injury was inflicted were foreseeable. The City could reasonably
have anticipated that its negligence in failing to identify officers who were
unfit to carry guns would result in an unfit officer injuring someone using the
gun he was required to carry. Furthermore, it was reasonably foreseeable that
such an officer would injure a member of his own family. “An intervening act may not serve as a
superseding cause, and relieve an actor of responsibility, where the risk of
the intervening act occurring is the very same risk which renders the actor
negligent.” Derdiarian v. Felix Contracting Corp., supra, 51 N.Y. 2d at 316,
414 N.E.2d at 671, 434 N.Y.S.2d at 170. Since the City was negligent precisely
because of the risk posed to other policemen and members of the public by
requiring all officers, without adequate screening, to be armed at all times,
the District Court did not err in denying the City’s motion for judgment
n.o.v. or a new trial.
The City also argues that the jury’s verdicts awarding Mrs.
Bonsignore damages on her negligence claim after denying recovery on her
wrongful death claim were so inconsistent that the District Court erred in
denying the City’s motion for judgment n.o.v. or, in the alternative, a new
trial. This claim is without merit.
While the jury could have concluded that the City’s failure to adopt a
reasonable program to screen violence-prone officers was the proximate cause of
Mrs. Bonsignore’s injuries, the jury also could have concluded that Officer
Bonsignore would have committed suicide even if the City had identified him as
a problem officer and had removed his gun.
We reject the City’s objection to the award of $125,000 punitive
damages. New York law on municipal liability for punitive damages is not clear,
compare Sharapata v. Town of Islip, 82 A.D.2d 350, 441 N.Y.S.2d 275 (2d Dep’t
1981) (punitive damages are not available against a municipality), cited with
approval in LaBelle v. County of St. Lawrence, A.D., 85 A.D.2d 759, 445
N.Y.S.2d 275 (3d Dep’t 1981), with Bevilacqua v. City of Niagara Falls, 66 A.D.2d
988, 411 N.Y.S.2d 779 (4th Dep’t 1978) (assuming that New York law allows
punitive damages against a municipality); see also, Williams v. City of New
York, 508 F.2d 356 (2d Cir. 1974) (same). In this diversity case, we decline to
anticipate the ultimate resolution of this issue, since the City failed to
object at trial to the jury instructions on punitive damages. See Fed. R. Civ.
P. 51.
Finally, Mrs. Bonsignore cross-appeals from the denial of her
motion to amend her complaint to include a claim under 42 U.S.C. § 1983. The
District Court was correct in denying this motion. Officer Bonsignore, who was
off-duty when he shot [*639] his wife, was not acting under color of state law
since his actions were not “committed in the performance of any actual or
pretended duty,” Johnson v. Hackett, 284 F. Supp. 933, 937 (E.D. Pa. 1968), but
were performed “in the ambit of [his] personal pursuits,” Screws v. United
States, 325 U.S. 91, 111, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945) (plurality
opinion); see Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975), cert.
dismissed, 429 U.S. 118, 97 S. Ct. 514, 50 L. Ed. 2d 269 (1976) (per curiam).
The judgment of the District Court is affirmed.
1 Even an unforeseeable
consequence can be the basis for liability when such a consequence “follow[s]
an impact upon the person of the plaintiff.” W. Prosser, The Law of Torts § 43,
at 261 (4th ed. 1971).