stating that the issue for the jury in such cases is whether the hiring or retention of the employee “involved danger to others reasonably to be foreseen”
How later courts described this case
- stating that the issue for the jury in such cases is whether the hiring or retention of the employee “involved danger to others reasonably to be foreseen”
- city had duty of reasonable care in retention of police officer who, while off-duty, shot and killed plaintiff's decedent with service revolver
Written by the judges who cited it.
The opinion
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Thachee, J.
(dissenting). Upon careful study of the record in this case I am confirmed in the view that the Appellate Division was right in concluding that the facts were insufficient to support the conclusion that the defendant should have anticipated, on December 11,1937, the assaults perpetrated by Anderson on January 2, 1943.
It is important to bear in mind the sequence of the only events disclosed by the record which show knowledge by his superiors of indulgence in alcohol by Anderson prior to the time when it is claimed that Commissioner Valentine was negligent in not dismissing him from the force in December, 1937. The first of these occurred on October 27, 1928, during prohibition days. While off duty and in civilian clothes, Anderson was intoxicated and unfit for police duty. This incident was not proof of any vicious or insane tendencies. He was placed upon probation for six months from December 1, 1928, by direction of the then Police Commissioner and restored to duty on June 4, 1929, his record having been clear while on probation. Nothing of the kind happened again until March 17, 1936, when he was intoxicated, off duty and in uniform. Again he was placed on probation for one year, with the warning that any kind of trouble while on probation would result in dismissal. The reports from his commanding officer and chaplain were that his conduct was satisfactory during the period of probation. The last incident before the final unfortunate and fatal occurrence on January 2, 1943, was on November 18, 1937. Anderson failed to report for assignment at 1 p.m. as directed, and when found at 1:20 p.m. was intoxicated and unfit for duty. He was again interviewed by the Police Commissioner, who, contrary to the usual rule, gave him another chance and again placed him upon probation for a year. There were no charges against Anderson during this period of probation nor any charges indicating indulgence in alcoholic beverages during the entire period of five years preceding the fatal shooting on January 2, 1943.
This is the record upon which the action of the Police Commissioner on December 11, 1937, in putting Anderson on probation for another year instead of dismissing him from the force, must be judged, and I can find in it no evidence upon which the jury could have predicated its finding that when this was done there was reason to anticipate the shooting which occurred over
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five years later. I believe the court has given undue weight to the psychiatric examination and the diagnosis of chronic alcoholism made in the hospital several.months after the shooting occurred. Certainly that is no evidence that the defendant knew, or should have known, that the man was a chronic alcoholic with paranoidal tendencies five years before the condition was discovered. The testimony of the doctor who made the diagnosis is in my judgment of importance only to show that the shooting occurred as a result of insanity which could not have been anticipated by the commissioner. Nor do I ‘think the commissioner was bound to give weight to the hearsay statement made by an unknown complainant that “ on Prospect Avenue there was a drunken officer with a gun ”. Taken at face value the statement was true, but there was no evidence that he had the gun in his hand or that he was threatening to use it; on the contrary, the testimony of the officer who went to the scene when the complaint was made was that he had no gun in his hand when he observed him. The record before the commissioner showed long periods of good behavior and. nothing in my judgment sufficient to show that he should have anticipated the acts of a madman which occurred on January 2, 1943. I cannot agree that the commissioner may not in the exercise of an honest discretion retain a man on the force who in a period of nine years had been intoxicated on two prior occasions, or that the city is liable for the con sequences of the shooting five years thereafter, when the man was not merely intoxicated but out of his mind.
I dissent and vote for affirmance.
Lotjghran, Ch. J., Conway, Desmond, Dye and Fuld, JJ., concur with Lewis, J.; Tttacheb, J., dissents in opinion.
Judgments reversed, etc.