Santos v. City of New York , 522 N.Y.S.2d 538 ( 1987 )

Smith, J., dissents in a memorandum as follows:

I agree with the majority that the trial court abused its discretion in refusing to grant a mistrial because of the testimony of James Sharpe who falsely testified that he was a former police officer of the City of New York and gave his opinion that Police Officer Goodwin did not use correct procedures when he approached the decedent with his gun drawn. I believe, however, that the case should be remanded for a new trial on the issue of negligence.

In this case the jury was not asked to make specific findings of negligence and we do not know what the negligence was on which the verdict was based.

The pivotal fact in this case is that the decedent, an unarmed man who was 5-feet, 2-inches tall and weighed 150 pounds, was shot in the back. The testimony of the police officer who shot decedent, Michael Goodwin, and of two other officers who had joined in chasing the decedent (Officers Patrick O’Sullivan and Dennis Sullivan), was that the gun accidently discharged during a struggle. There was also testimony by a witness, Anthony Gennario, that prior to the shot, the decedent was surrounded by police officers. The jury was free to accept or reject this testimony. But even assuming the jury accepted as true the testimony of the police officers that the shooting was an accident and not deliberate, it could still find from the evidence that the defendant City of New York was negligent. The jury was free to conclude that Officer Goodwin was negligent in the handling of his gun during the chasing and subduing of an unarmed man who was being pursued by a number of police officers.

In Pfohl v Wipperman (41 AD2d 891, affd 34 NY2d 597 [1974]), decedent was shot while attempting to flee on foot after his car had allegedly gone through a stop sign and the police gave chase. There was testimony by a witness that the gun discharged when the decedent spun around and struck the gun as the police officer neared him. A jury found no cause of action but the trial court set aside the verdict and granted a new trial. The Appellate Division reversed, emphasizing that the issue of the decedent’s contributory negligence was one of fact for the jury. The Court of Appeals affirmed the Appellate Division. Here the very nature of the case, a person shot in the back, raises a question of fact as to negligence which a jury rather than a court must determine. This is particularly true in a death case where a plaintiffs burden of proof is not as great as that of an injured plaintiff who can describe the occurrence. (Noseworthy v City of New York, 298 NY 76 [1948].)

Moreover, it is clear that expert testimony is not essential to a finding of negligence. (Collins v City of New York, 11 Misc 2d 76, affd 8 AD2d 613, affd 7 NY2d 822 [1959].) In Collins the City of New York was found negligent where an off-duty policeman dropped his gun and it discharged, striking the plaintiff.