Montfort, Healy, McGuire & Salley LLP were of counsel to a police officer’s widow in a recent Eastern District decision of first impression in her favor. This is the first case in which it was decided that a retired police officer at the scene of a crime shouting “gun” assumed a duty and therefore, could be held liable for negligence.
The case concerned an action brought by a plainclothes Nassau County Police Officer’s widow for the wrongful death of her husband who was shot by friendly fire while responding to an incident involving a dangerous emotionally disturbed person. Police were responding to a call regarding a young man who was walking through the neighborhood of Massapequa Park with knives in both hands and appeared to be threatening to the safety of the public. At the scene, the young man was shot when he approached police officers with the weapons.
MTA officers patrolling the neighborhood at the time proceeded to the scene to offer assistance after hearing the call over their radio. Also at the scene was a retired New York City police officer. When two members of the Nassau County Police department SWAT team arrived in plain clothes with rifles, the retired officer shouted “gun,” and an MTA officer fatally shot one of the plainclothes officers.
The officer’s widow raised claims against the MTA for excessive use of force and liability for failure to train; against the retired police officer for negligence; as also stated a claim against the suspect’s parents on the theory that they owed a duty of care to the slain officer. The court held that the suspect’s parents did not owe a duty to the plainclothes officer, but found issues of fact that precluded summary judgment as to the excessive force claim and as to the cause of action against the retired officer. The Eastern District concluded that the retired officer created a duty of care when he shouted “gun!” He should have foreseen the risk of shooting that was created when he negligently interfered with police action and negligently misidentified a plainclothes officer.
Click here to read the court’s full decision.