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Appellate Division Holds that Liability May be Imposed on the City for Negligence in Hiring an Officer with Violent Propensities

Gonzales v. City of New York 2015 NY Slip Op 06869

Generally, when an off-duty police officer commits a crime outside the scope of his employment, it has been long held in New York that his employer cannot be held liable. However, a plaintiff recently raised a question to the New York Appellate Division, 1st Department concerning whether the city was liable for the death of the officer’s girlfriend, whom he killed. The plaintiff alleged that the City was negligent in hiring, retaining and supervising the officer because they had prior notice regarding his violent propensities.

The case concerned a young mother who had maintained a relationship with a New York City Police Officer 22 years her senior, since she was 16. In July 2007, he shot and killed her, then shot and killed himself. The victim was survived by her infant daughter. The administrator of the estate alleged that before the murder, numerous complaints were made to the City regarding the officer’s abusive conduct toward the victim and her daughter. However, the motion court dismissed the action and granted summary judgment in favor of the City on the grounds that failure to discharge an officer with violent propensities was not the proximate cause of the murder because the officer was not on duty at the time the incident took place.

The Appellate court analyzed the inherent tort questions concerning foreseeability, proximate cause, and whether a duty was owed to the plaintiff - in addition to looking to a line of cases concerning negligent hiring and training claims against the City. After determining that no bright line rule had been drawn to preclude recovery in a case like the one before the court, it was held that the questions of fact concerning the issues should be determined by a jury, and the order for summary judgment was reversed.

The court found that the officer’s employment by the City resulted in his having possession of a dangerous instrumentality, and therefore invoked a duty regarding the supervision of the officer. The court also held that “both the type of harm that occurred and the person on whom the injury was inflicted were foreseeable within a degree of acceptability recognized by New York law…. The City could reasonably have anticipated that its negligence in failing to discipline an officer who had violent propensities would result in the officer injuring someone with his gun.”

To read the full case, click here.

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