Ben v. United States of America et al
Filing
56
DECISION AND ORDER re 20 MOTION to Dismiss filed by Mary and/or John Roe, Ellen Phillips, Steven Acquilano, Lori Albright, United States of America, Federal Probation Office of the Syracuse Office of the Northern District of New York, Matthew Brown. Defendants application to dismiss is granted with regard to the negligent training and supervision claims, but is otherwise denied. Defendants alternative request for summary judgment is denied without prejudice to renew once discovery is completed. Signed by Senior Judge Charles J. Siragusa on 2/3/16. (kp, ) (Main Document 56 replaced on 2/4/2016) (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
SHEILA K. BEN, ESQ., as Court Appointed Guardian
of the Property of JANE DOE, (an infant proceeding
under an assumed name), an Infant under the age
of 14,
Plaintiff,
-vs-
DECISION AND ORDER
5:14-CV-0370 (CJS)
UNITED STATES OF AMERICA,
Defendant.
__________________________________________
SUSAN DOE (as Guardian and Executrix proceeding
under an assumed name) as the Court Appointed
Guardian of the Person and Property of JANE DOE,
Plaintiff,
-vs-
5:14-CV-0509 (CJS)
UNITED STATES OF AMERICA,
Defendant.
__________________________________________
INTRODUCTION
This is an action against the United States of America under the Federal Tort Claims
Act, 28 U.S.C. § 1346(b)(1) (“FTCA”), seeking damages, for personal injuries and wrongful
death, caused by a federal pre-trial releasee, David Renz (“Renz”), who, after being charged
with receiving and possessing child pornography, was released from custody under the
supervision of U.S. Probation and Pretrial Services Office for the Northern District of New
York (“Probation”), in Syracuse, New York. While on supervised release, Renz committed
crimes including kidnapping, rape and murder. Plaintiffs maintain that Renz was able to
commit those crimes because Probation was negligent in supervising him. Now before the
Court is Defendant’s motion to dismiss, or in the alternative, for summary judgment. The
application is granted as to the negligent training and supervision claims but is otherwise
denied.
1
BACKGROUND1
In the course of committing the criminal acts which led to this action, Renz randomly
kidnapped Lori Bresnahan (“Bresnahan”) and an eleven-year-old child (“the child”) from a
shopping mall in Syracuse. Renz proceeded to sexually assault the child in Bresnahan’s
presence, and then murdered Bresnahan in the child’s presence. Circumstances suggest
that Renz also intended to murder the child, but before Bresnahan succumbed to Renz’s
attack she enabled the child to escape from Renz. These events took place on March 14,
2013, beginning at approximately 7:45 p.m.2 However, the pertinent facts of this case begin
many years earlier.
In or about 1998, when Renz was fifteen years old, he had sexual contact3 with a
nine-year-old female child on multiple occasions. Renz was subsequently charged in Family
Court with committing acts which if committed by an adult would constitute Sexual Abuse
in the First Degree, Penal Law § 130.65, and Endangering the Welfare of a Child, Penal Law
§ 260.10.4 Renz was placed on probation, apparently after having been adjudicated a
juvenile delinquent. Significantly, it appears that Renz’s Family Court file was sealed
pursuant to New York’s Family Court Act (“FCA”) § 375.2.5 With regard to such sealing, the
1
Except as otherwise noted the following facts are taken from documents that were either
attached to, or incorporated by reference into, the Complaints in this action. The Court has also taken
judicial notice of certain publicly available court records. Apart from these sources, the Court has
briefly referred to information taken from an Onondaga County Family Court file, which is outside of the
pleadings, though the Court does not consider such information in connection with the 12(b)(6) aspect
of Defendant’s motion.
2
See, Complaint, 14-CV-0370, Docket No. [#1] at ¶ ¶ 53-61.
See, New York Penal Law § 130.00(3) (“‘Sexual contact’ means any touching of the sexual or
other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the
touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or
through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or
unclothed.”).
3
4
See, 5:14-CV-0370, Docket No. [#39-9], sealed Exhibit I at p. 14.
5
The portion of the Family Court file that is before this Court deals primarily with the details of the
sexual abuse. The documents contain no specific details about Renz’s subsequent juvenile delinquency
adjudication or how the matter came to be sealed, though it seems undisputed that he was adjudicated a
2
Court takes judicial notice that the FCA allows other courts to have access to such sealed
records in only one circumstance: when the former juvenile delinquent is later sentenced
as an adult following a conviction for a different crime. See, FCA § 381.2 (“[A]nother court,
in imposing sentence upon an adult after conviction may receive and consider the records
and information on file with the family court[.]”).6 Renz’s probation ended on March 17,
2001.
On June 3, 2012, the Federal Bureau of Investigation (“FBI”) notified Renz that it was
investigating him for child pornography. Approximately six months later, on January 9, 2013,
the Government arrested Renz and charged him with receipt and possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and 18 U.S.C. § 2252A(a)(5)(B).
The Court takes judicial notice of the fact that those crimes were felonies under Chapter
110, and were therefore classified as “crimes of violence” under the Bail Reform Act. See,
18 U.S.C. § 3156(a)(4)(c). Attached to the criminal complaint was a supporting affidavit of
an FBI agent indicating that at the time of Renz’s arrest, Renz admitted that he had been
downloading and viewing child pornography for six years. The FBI agent’s affidavit further
indicated that Renz possessed over 500 video files and 3,000 image files of child
pornography.
Renz’s case was assigned to the Honorable Andrew T. Baxter, United States
Magistrate Judge. The Government moved to detain Renz, and Judge Baxter scheduled
a detention hearing for January 14, 2013. On January 10, 2013, prior to such hearing,
Senior U.S. Probation Officer Ellen Phillips (“Phillips”), prepared a Pretrial Services Report
juvenile delinquent and placed on probation, and that his case was sealed.
6
See also, People v. Campbell, 98 A.D.3d 5, 12, 946 N.Y.S.2d 587, 592 (2012) (“[T]he sole
statutory exception to the confidentiality provisions of Family Court Act § 381.2 permits consideration of
records and information relating to a juvenile delinquency adjudication by a court in imposing sentence
upon an adult.”), leave to appeal denied, 20 N.Y.3d 853 (2012).
3
(“PSR”). The PSR asserted that Renz “pose[d] a risk of danger,” in part because he had a
“History/Charge Involving a Child.” In that regard, the PSR stated:
The defendant’s rap sheet indicates he was on probation which ended on
March 17, 2001. His mother explains when he was about 15 years old, he
was ‘implicated’ in a sex offense. She states a friend of the defendant’s
engaged in sexual intercourse with a female child. She does not believe Renz
had any contact with the minor, but he was implicated and was placed on
probation supervision.
Apart from referencing the conversation with Renz’s mother, the PSR does not detail any
efforts that Phillips made to investigate the reason why Renz had been on probation.7 The
Court observes, though, that Probation Officers have an ongoing duty to investigate, verify
and supplement information about a defendant’s criminal history.8
In any event, despite indicating Renz posed a risk of danger, the PSR indicated that
there were conditions of release which the Court could impose that would help to mitigate
any risk of danger to the community, including “a curfew monitored by electronic monitoring.”
Based upon the PSR, the U.S. Attorney’s Office withdrew its request to have Renz
detained, and agreed that he could be released on conditions.9 Judge Baxter similarly
agreed that he would follow the PSR’s recommendation and release Renz on various
conditions, including a prohibition on using any computer or other device with online
capability, and a curfew with electronic monitoring.10 The electronic monitoring condition
7
Outside of the pleadings, Phillips has provided an affidavit indicating that in connection with
preparing the PSR, she “emailed the Onondaga County Probation Office in an attempt to learn more,”
but a “representative there informed [her] that Renz was on probation due to a juvenile offense [and]
that more information could not be disclosed because it was a sealed Family Court file.”Case No. 14CV-0370, Docket No. [#22]. Plaintiffs dispute whether Phillips made such an inquiry, though as yet
they have not had an opportunity to conduct discovery on that point.
8
Guide to Judiciary Policy Vol. 8C, § 420.10.40.
9
Case No. 14-CV-0370, Docket No. [#39-7] at p. 6.
10
Because of the nature of Renz’s crime against the minor child, a curfew and electronic
monitoring were both required by law. 18 U.S.C. § 3142(c)(1)(B).
4
required Renz to wear an electronic ankle bracelet that sent out at least two types of alerts:
tamper alerts and no-motion alerts. The bracelet issued a tamper alert when it was jarred
with sufficient force11 or when the clasp was tampered with, and issued no-motion alerts
when the bracelet remained motion-less for a specified period of time. With regard to the
curfew and electronic monitoring, Judge Baxter told Renz:
[Y]ou’re going to have a curfew that will require you to be home between 9
p.m. and 7 a.m. . . . Your curfew is going to be monitored by electronic
monitoring and you need to make sure that you don’t do anything to try to
tamper or interfere with that pretrial monitoring[.]12
Judge Baxter further cautioned Renz, by stating: “Trust me, I am deadly serious that any
deviations of any of these conditions, you’re going to find yourself back here and likely be
back in jail.”13
It thereupon became Probation’s responsibility to supervise Renz and to monitor his
compliance with the conditions of release in accordance with written policies established by
the Judicial Conference of the United States, as set forth in the Guide to Judicial Policies
and Procedures.
Renz’s case was assigned to Probation Officer Steven Acquilano
(“Acquilano”), who was supervised by Supervisory Probation Officer Lori Albright (“Albright”)
and Chief Probation Officer Matthew Brown (“Brown”).
In pertinent part, the Guide to Judicial Policies and Procedures required Probation
to do the following: develop a written supervision case plan for each defendant;14 inspect
electronic monitoring equipment at least once per month;15 conduct daily review of electronic
11
See, 14-CV-0370, Docket No. [#39-10] at p. 8
12
Case No. 14-CV-0370, Docket No. [#39-7] at p. 9.
13
Case No. 14-CV-0370, Docket No. [#39-7] at p. 11.
14
Judiciary Policy Vol. 8C,
15
Judiciary Policy Vol. 8F § 563.
§ § 420.40.50 - 420.40.60
5
monitoring activity reports for each defendant;16 receive immediate notification of electronic
monitoring tamper alerts;17 conduct immediate investigation of tamper alerts;18 and provide
a report to the court concerning any violation of the court-imposed conditions.19 Overall,
probation officers conducting pretrial supervision were required to “respond immediately to
any conduct or condition of the defendant that relates to nonappearance or danger,
regardless of when it occurs.”20
However, Probation did not follow those procedures in Renz’s case.
More
specifically, Probation did not develop a supervision plan for Renz, did not inspect Renz’s
electronic monitoring equipment (except perhaps on one occasion), and did not monitor
Renz’s tamper alerts as required21 even though tampering with “location monitoring”
equipment is considered a “higher-risk violation.”22
At all relevant times, tamper alerts were transmitted by a defendant’s bracelet to the
vendor of the electronic monitoring equipment, which then provided notification to Probation
in two ways: by direct notification and by notification on a website. More than two years prior
to Renz’s arrest, Probation had waived direct notification of tamper alerts lasting less than
five minutes, at the suggestion of the vendor of the electronic monitoring equipment,
16
Judiciary Policy Vol. 8F § 536.
17
Judiciary Policy Vol. 8F § 543(c).
18
Judiciary Policy Vol 8C
19
Judiciary Policy Vol. 8C § § 710.10(d) & 740.10, Vol. 8F,
20
Judiciary Policy Vol. 8C,
§ 730.10, Vol. 8F § 546.
§ 546(e).
§ 410(e).
21
See, 14-CV-0370, Docket No. [#39-10], at pp. 1-4, report of Chief Judge Gary L. Sharpe.
Renz testified at deposition that Probation Officer Acquilano inspected the ankle bracelet briefly on one
occasion after receiving a tamper alert, but he failed to detect any problem because Renz had
reassembled the device.
22
Guide to Judiciary Policy, Vol. 8C § 730.10(b).
6
ostensibly to cut down on the number of false alarms.23 Consequently, Probation and the
vendor agreed that Probation would not receive direct notification of tamper alerts lasting
less than five minutes, though notice of such alerts was still available to Probation on the
vendor’s website. In Renz’s case, though, Probation never checked the website, and
consequently it was unaware of tamper alerts lasting less than five minutes.
As a result, Probation, and more importantly, Judge Baxter, was unaware that,
beginning on January 15, 2013, Renz’s ankle bracelet sent out a series of approximately
forty (40) tamper alerts lasting less than five minutes.24 Renz’s ankle bracelet also sent out
several tamper alerts lasting more than five minutes, about which Probation received
notification. Specifically, between February 14, 2013 and March 15, 2013, Probation
received seven tamper alerts lasting more than five minutes.25 However, despite receiving
such notifications, Probation did not inspect Renz’s ankle bracelet or notify Judge Baxter.
Instead, on one occasion Acquilano verbally directed Renz to leave the bracelet alone.
On the evening of March 14, 2013, while Renz was supposed to be at home pursuant
to his curfew, he instead removed the electronic bracelet, traveled to a nearby shopping
mall, kidnapped Bresnahan and the child using a knife and a BB gun pistol, and, after tying
up Bresnahan, proceeded to rape the child and stab Bresnahan to death. All of the acts of
sexual assault and murder occurred inside Bresnahan’s automobile. A subsequent search
of Renz’s home indicated that while on supervised release he had continued to amass a
collection of child pornography, in violation of the law and the conditions of his supervised
23
Probation and the vendor agreed that the Syracuse Probation Office would temporarily waive
notification of tamper alerts lasting less than five minutes, with the understanding that they would revisit
the issue when that office received new electronic monitoring equipment, which was scheduled to occur
within a few months. However, it appears that Probation and the vendor never revisited the issue even
after the new equipment arrived. See, Case No. 14-CV-0370, Docket No. [#39-10] at p. 4 (AO Report)
24
See, Case No. 14-CV-0370, Docket No. [#39-10] at p. 9 (AO Report).
25
See, Case No. 14-CV-0370, Docket No. [#39-10] at p. 9 (AO Report).
7
release.26 It also became apparent that the manner in which Renz carried out the sexual
assault on the child closely mimicked a depiction of a sexual assault of a child in his
pornography collection.27
PROCEDURAL HISTORY
Upon Bresnahan’s death, Onondaga County Surrogate’s Court appointed Plaintiff
Susan Doe (“Executrix Doe”) as Executrix of Bresnahan’s estate and guardian of the child.
Surrogate’s Court also appointed Plaintiff Sheila K. Ben (“Ben”) as guardian of the child’s
property. Subsequently, Ben, as Guardian of the child’s property, and Executrix Doe, as
both Executrix of Bresnahan’s estate and Guardian of the person and property of the child,
commenced the two subject essentially-identical actions, seeking to recover damages under
the FTCA and 42 U.S.C. § 1983 for injuries to the child and Bresnahan, and for Bresnahan’s
wrongful death. Plaintiffs commenced the action in the United States District Court for the
Northern District of New York. However, the undersigned, a Senior District Judge of the
U.S. District Court for the Western District of New York, was assigned to preside over the
actions after all of the District Judges in the Northern District recused themselves.
Initially, Plaintiffs sued the United States, the U.S. Probation and Pretrial Services
Office for the Northern District of New York, Brown, Albright, Phillips and Acquilano. Now,
pursuant to a stipulated Order, the two actions are consolidated for purposes of discovery
and trial, and claims against all defendants except the United States are discontinued.28
Additionally, upon further clarification from Onondaga County Surrogate’s Court, the
parties have stipulated to the amendment of the pleadings, such that Ben is pursuing claims
relating only to the child’s injuries, and Executrix Doe is only pursuing claims for Bresnahan’s
26
See, Case No. 14-CV-0370 Docket No. [#1], Complaint
0143, Docket No. [#61] at p. 5.
27
See, Case No. 13-CR-0143, Docket No. [#61] at p. 4
28
See, case no. 5:14-CV-0370 (CJS) docket no. [#35].
8
¶ 133; see also, Case No. 13-CR-
wrongful death and for her conscious pain and suffering prior to her death. Executrix Doe
has also discontinued her Section 1983 claims,29 and consequently, the only claims
remaining in this action are under the FTCA. More specifically, Plaintiffs are asserting the
following claims: 1) negligence resulting in injuries to the child; 2) negligent infliction of
emotional distress (“NIED”) resulting in injuries to the child; 3) wrongful death as to
Bresnahan; 4) negligence resulting in conscious pain and suffering by Bresnahan prior to
her death; and 5) NIED resulting in injuries to Bresnahan.
It is undisputed that in
accordance with the FTCA, the substantive claims are governed by the law of the State of
New York, since the claims arose in New York. 18 U.S.C. § 1346(b)(1).
In lieu of answering the Complaint, Defendant filed the subject motion to dismiss, or,
in the alternative, for summary judgment. Defendant’s memorandum of law consists of
points I-VII. Now, however, as a result of the aforementioned stipulations, certain aspects
of Defendant’s motion are moot. Namely, points I, II, and VII of Defendant’s brief are moot.
The remaining four points of Defendant’s motion are as follows: III) the Court’s jurisdiction
over the claims for negligent supervision and training is barred by the FTCA’s “discretionary
function exception”; IV) the Court lacks jurisdiction over the negligence claims and/or the
claims lack merit because Defendant owed no duty to the child or Bresnahan, or, if such a
duty was owed, the injuries to Bresnahan and the child fall outside the scope of such duty;
V) the claims for negligent supervision and training lack merit under New York State law,
since it is undisputed that the individual Probation employees were acting within the scope
of their employment; and VI) the NIED claims lack merit under New York State law, since
the alleged misconduct was not sufficiently extreme or outrageous. The motion to dismiss
as to Point III is based on Rule 12(b)(1); the motion to dismiss as to Point IV is based on
Rule 12(b)(1) and Rule 12(b)(6); and the motion to dismiss as to Points V and VI is based
29
See, case no. 5:14-CV-509, Docket no. [#40] at ¶ 10.
9
on Rule 12(b)(6). See, Def. Memo of Law [#24] at pp. 10-11.
Plaintiffs counter that they have sufficiently pleaded claims for negligence, including
negligent training and supervision, wrongful death, and NIED. Plaintiffs also request, with
regard to Defendant’s alternative motion for summary judgment, that the Court deny the
application pursuant to Fed.R.Civ.P. 56(d), since no discovery has taken place in this action.
DISCUSSION
Defendant’s motion is made pursuant to Rule 12(b)(1), Rule 12(b)(6) and,
alternatively, Rule 56. At the outset, though, the Court denies Defendant’s alternative Rule
56 application as premature, since no discovery has taken place. In that regard, while
Plaintiffs and Defendant each submitted some materials outside of the pleadings, Plaintiffs
have also asked the Court to deny the summary-judgment aspect of Defendant’s motion
pursuant to Rule 56(d). Although Plaintiffs have not submitted a separate Rule 56(d)
affidavit,30 they have specified certain types of discovery that they believe would establish
that Defendant owed a duty to the victims. See, Pl. Memo of Law at p. 46. Further, it is wellsettled that “[o]nly in the rarest of cases may summary judgment be granted against a
plaintiff who has not been afforded the opportunity to conduct discovery.” Hellstrom v. U.S.
Dept. of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000) (citations omitted) ; but see, Young
v. Benjamin Dev. Inc., No. 09–1320–cv, 395 Fed.Appx. 721, 722–723, 2010 WL 3860498
(2d Cir. Oct.5, 2010) (“Only in the rarest of cases may summary judgment be granted
against a plaintiff who has not been afforded the opportunity to conduct discovery.
Nonetheless, we conclude that the district court committed no error in this case because
Young failed to file an affidavit setting forth the essential facts he sought to discover.”)
30
Ordinarily, to avoid summary judgment under Rule 56(d) the nonmoving party must submit an
affidavit or declaration explaining what discovery he needs, and how such discovery will create a triable
issue of fact. See, FRCP 56(d) (Formerly 56(f), requiring the nonmovant to show “by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its opposition” to the
motion)
10
(citation omitted). Since this action is in its earliest stage, the Court denies Defendant’s
alternative request for relief under Rule 56 as premature, and will only consider the
sufficiency of the Complaint under Rules 12(b)(1) and 12(b)(6).
With regard to the 12(b)(1) application, the standard to be applied in pertinent part
is as follows:
In resolving a motion to dismiss under Rule 12(b)(1), the district court must
take all uncontroverted facts in the complaint (or petition) as true, and draw all
reasonable inferences in favor of the party asserting jurisdiction. But where
jurisdictional facts are placed in dispute, the court has the power and
obligation to decide issues of fact by reference to evidence outside the
pleadings, such as affidavits. In that case, the party asserting subject matter
jurisdiction “has the burden of proving by a preponderance of the evidence
that it exists.
Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)
(citations and internal quotation marks omitted). In the instant case, Defendant is not
challenging Plaintiffs’ factual assertions pertaining to subject-matter jurisdiction, but rather,
is challenging the legal sufficiency of those allegations.31 In other words, Defendant
maintains that even assuming the truth of Plaintiffs’ factual allegations, this Court lacks
jurisdiction. Consequently, when evaluating Defendant’s 12(b)(1) motion, the Court must
accept the allegations in Plaintiff’s complaint and draw all reasonable inferences in Plaintiffs’
favor.
With regard to Defendant’s motion to dismiss for failure to state a claim, the general
legal principles concerning motions under FRCP 12(b)(6) are well settled:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order to
give the defendant fair notice of what the claim is and the grounds upon which
31
“In a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), the defendant may challenge either
the legal or factual sufficiency of the plaintiff's assertion of jurisdiction, or both.” Robinson v. Gov't of
Malaysia, 269 F.3d 133, 140 (2d Cir. 2001) (citations omitted).
11
it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.
Factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929
(2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007) (“To survive dismissal, the plaintiff must provide the grounds upon which his claim
rests through factual allegations sufficient ‘to raise a right to relief above the speculative
level.’ ”) (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted).32
When applying this “plausibility standard,” the Court is guided by “two working
principles”:
First, although a court must accept as true all of the allegations contained in
a complaint,33 that tenet is inapplicable to legal conclusions, and threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss, and determining whether a
complaint states a plausible claim for relief will be a context-specific task that
requires the reviewing court to draw on its judicial experience and common
sense.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations and internal quotation marks
omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere
32
It is of course well-settled that in resolving a 12(b)(6) motion, the Court is limited as to what it
can consider. See, Vasquez v. City of New York, No. 10 Civ. 6277(LBS), 2012 WL 4377774 at *1
(S.D.N.Y. Sep.24, 2012). (On a 12(b)(6) motion, “a court may consider ‘documents attached to the
complaint as an exhibit or incorporated in it by reference, ... matters of which judicial notice may be taken,
or ... documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in
bringing suit.’ “ Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (quoting Brass v. Am.
Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993)).”).
33
The Court must accept the allegations contained in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d
Cir.1999), cert. den. 531 U.S. 1052, 121 S.Ct. 657 (2000).
12
possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader
is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950 (2009)
(citation omitted). “The application of this ‘plausibility’ standard to particular cases is
‘context-specific,’ and requires assessing the allegations of the complaint as a whole.”
Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Medical Centers Retirement Plan v.
Morgan Stanley Inv. Management Inc., 712 F.3d 705, 719 (2d Cir. 2013) (citation and
internal quotation marks omitted).
Negligent Training and Supervision
The Complaints do not assert discrete claims specifically designated as “negligent
training and supervision.” Instead, the Complaints maintain that Brown, Albright, Phillips and
Acquilano were negligent in various ways, and that such negligence included failures to
properly train and supervise the staff of the Syracuse Probation Office. Thus, the negligent
training and supervision claims are one aspect of Plaintiffs’ overall theory of negligence.
Defendant asserts that the negligent training and supervision aspects of Plaintiffs’ claims
must be dismissed for two reasons. First, Defendant maintains that this Court lacks subjectmatter jurisdiction over such claims, since they fall under the “discretionary function”
exception of the FTCA.34 Second, Defendant contends that even if the Court has jurisdiction
over such causes of action, New York State law does not permit negligent training and
supervision claims where a tort is committed by an employee acting within the scope of his
employment. Here, it is undisputed that Brown, Albright, Phillips and Acquilano were all
acting within the scope of their employment. The Court will consider each of these points
in turn.
The FTCA’s Discretionary Function Exception
34
Defendant does not assert that all of Plaintiffs’ claims are jurisdictionally barred by
the“discretionary function” exception; rather, Defendant only raises the “discretionary funciton” argument
with regard to the negligent training and supervision claims.
13
With regard to the jurisdictional claim, Plaintiffs are attempting to sue the United
States of America, which, of course, enjoys sovereign immunity from being sued, except
insofar as it consents to be sued. Moreover, even in situations in which the United States
consents to be sued, a court's jurisdiction is limited by the terms of the Government's
consent. See, Hercules Inc. v. U.S., 516 U.S. 417, 422, 116 S.Ct. 981, 985, 134 L.Ed.2d 47
(1996) (“The United States, as sovereign, is immune from suit save as it consents to be
sued and the terms of its consent to be sued in any court define that court's jurisdiction to
entertain the suit.”) (citations and internal quotation marks omitted). In other words, the
United States decides when and how it can be sued.
Under the FTCA, the United States has consented to be sued under certain
conditions, but has expressly declined to be sued “based upon the exercise or performance
or the failure to exercise or perform a discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or not the discretion involved [was]
abused.” 28 U.S.C.A. § 2680(a) (Westlaw 2015). This “discretionary function exception”
is a form of retained sovereign immunity. As a result, the FTCA's waiver of
federal sovereign immunity does not encompass actions based upon the
performance of, or failure to perform, discretionary functions. Because the
FTCA is structured as a grant of subject matter jurisdiction to the federal
courts, a finding that the discretionary function exception applies is tantamount
to holding that the court lacks jurisdiction.35 The exception applies only if two
conditions are met: (1) the acts alleged to be negligent must be discretionary,
in that they involve an ‘element of judgment or choice’ and are not compelled
by statute or regulation and (2) the judgment or choice in question must be
grounded in considerations of public policy or susceptible to policy analysis.
Reichhart v. U.S., 408 Fed.Appx. 441, 443, 2011 WL 286190 at *1 (2d Cir. Jan. 31, 2011)
(citations and internal quotation marks omitted). A plaintiff “bear[s] the initial burden to state
35
See also, Molchatsky v. United States, 713 F.3d 159, 161-163 (2d Cir. 2013) (Indicating that if
the discretionary function exception applies, the Court lacks subject matter jurisdiction..
14
a claim that is not barred by the [discretionary function exception].” Molchatsky v. U.S., 713
F.3d at 162.
In determining whether the allegedly-negligent acts “involved an element of judgment
or choice,”
it is the nature of the conduct, rather than the status of the actor that governs
whether the exception applies. The requirement of judgment or choice is not
satisfied if a federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow, because the employee has no
rightful option but to adhere to the directive.
U.S. v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273 (1991) (citations and internal
quotation marks omitted); see also, Berkovitz v. U.S., 486 U.S. 531, 544, 108 S.Ct. 1954,
1963 (1991) (“When a suit charges an agency with failing to act in accord with a specific
mandatory directive, the discretionary function exception does not apply.”).
The
aforementioned reference to “statute, regulation or policy” includes internal “agency
guidelines.” U.S. v. Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273.
Furthermore, even assuming the challenged conduct involves an element of
judgment, it [must then be] decided whether that judgment is of the kind that
the discretionary function exception was designed to shield. Because the
purpose of the exception is to prevent judicial ‘second-guessing’ of legislative
and administrative decisions grounded in social, economic, and political policy
through the medium of an action in tort, when properly construed, the
exception protects only governmental actions and decisions based on
considerations of public policy.
U.S. v. Gaubert, 499 U.S. at 322-323, 111 S.Ct. at 1273-1274 (citations and internal
quotation marks omitted). Where the alleged “type of negligence” arises from factors such
as inattentiveness, laziness, absentmindedness or other such “conduct unrelated to any
plausible policy objectives,” it is not shielded by the discretionary function exception.
Coulthurst v. U.S., 214 F.3d 106, 110-111 (2d Cir. 2000); see also, Id., 214 F.3d at 109
15
(“Such negligent acts neither involve an element of judgment or choice within the meaning
of Gaubert nor are grounded in considerations of governmental policy.’).
In the instant case, the alleged negligent acts involve failures by Probation to properly
supervise and monitor Renz. In that regard, Plaintiffs’ pleadings specifically allege that
Probation not only violated Judge Baxter’s Order setting conditions of release, but acted “in
total disregard of the rules, regulations, procedures, policies and guidelines . . . provided
by The Guide to Judiciary Policy and the relevant Government Monographs that speak to
the proper methods of pre-trial electronic monitoring, supervision and control of criminal
defendants.” Complaint (Case No. 5:14-cv-00370, Docket No. [#1]) ¶ 12. For example, the
Complaint contends that
the Probation Office’s practice of waiving affirmative notice of tamper alerts
(under the five minute rule) was a departure from the rules, regulations,
policies and procedures set forth in The Guide to Judiciary Policy, Volume 8F,
§ 543(c), that requires immediate notification of all tamper alerts, regardless
of [the duration of the alert].
***
[T]he Probation Office’s failure to develop a case plan and to provide formal
supervisory oversight in the Renz case was inconsistent with, and a departure
from, a number of national policies, including The Guide to Judiciary Policy,
Volume 8C, § 420.40.60(b) and § 420.40.50(a). Additionally, the complete
lack of coordination or supervision with specialist officers within the USPO was
contrary to, and a departure from, the Guide to Judiciary Policy, Volume 8C,
§ 240[.]
Complaint ¶ ¶ 97, 113; see also, id. at ¶ 141 (reiterating all of the alleged violations of
Probations’s rules and procedures).
Further, Plaintiffs allege that Judge Baxter’s Order, as well as Probation’s own rules,
regulations, procedures, policies and guidelines, were mandatory in nature, and that the
subject employees therefore had no discretion to disobey them. See, e.g., Complaint ¶ 99
(“These actions/inactions . . . constituted a ministerial violation of the mandatory rules,
16
regulations, policies and procedures of the USPO.”); ¶ 123 (“Upon information and belief,
all of the [probation employees’] actions or inactions complained of herein were ministerial
in nature, and none involved the use of discretion, in that said actions clearly and
unequivocally violated the ministerial rules, regulations, policies and procedures of the
Federal Probation Office, The Guide to Judiciary Policy, and such other well established
rules, regulations, policies and procedures of the Federal Probation Office.”); ¶ 143 (“[T]he
acts/omissions of the [probation employees] were . . . not related, in any way to the use of
discretion concerning the monitoring of [Renz].”). Consequently, Plaintiffs contend that the
discretionary function exception does not apply.
Defendant disagrees and maintains that the discretionary function exception applies
to all of the alleged negligence involving the training and supervision of Probation
employees. Defendant, though, does not attempt to show that any particular action by
supervisory Probation employees, in connection with Renz’s supervision, falls under the
discretionary function exception. Defendant does not argue, for example, that probation
supervisors had discretion to allow their subordinates to violate the directives set forth in the
Guide to Judiciary Policy. Rather, Defendant broadly argues that courts have “regularly
held” that claims involving hiring, training and supervision fall under the discretionary
function exception, and that “[P]laintiff[s have] not alleged any facts suggesting that
defendant’s hiring, retention, training and supervision practices fall outside the exception.”36
The Court finds that it has jurisdiction over the negligent training and supervision
claims.
At the outset, to the extent Defendant contends that negligent training and
supervision claims are always covered by the discretionary function exception, the Court
disagrees. See, Riascos-Hurtados v. U.S., 2015 WL 3603965 at *6 (S.D.N.Y. Jun. 5, 2015)
(“Issues of employee hiring, training, supervision, and retention generally involve the
36
Def. Memo of Law [#24] at pp. 20-21.
17
permissible exercise of policy judgment and fall within the discretionary function exception.
However, it is not the case that all claims for negligent hiring or supervision are barred by
the discretionary function exception.”) (citations and internal quotation marks omitted); see
also, Diaz-Bernal v. Myers, 758 F. Supp. 2d 106, 121 (D. Conn. 2010) (In which the U.S.
acknowledged that negligent training and supervision claims could be actionable under the
FTCA in certain cases, but argued that the discretionary function exception applied based
on the particular facts of the case.).
The Court also finds that Plaintiffs have carried their burden of demonstrating that
their negligent training and supervision claims involve violations of rules that were
mandatory, not discretionary. Specifically, in response to Defendant’s motion, Plaintiff has
submitted, inter alia, portions of the Guide to Judiciary Policy, and most notably Volume 8,
Part C, Chapter 2, which discusses the roles of probation supervisors,37 and chapters 3,4,5,
and 7, which discuss the specific duties of probation officers. The Guide to Judiciary Policy
indicates, for example, that probation supervisors are required to train their staffs to perform
pretrial services supervision effectively, ensure that all staff are familiar with national and
local rules and policies, and oversee the work of their staffs. The Guide to Judiciary Policy
further indicates that probation officers are required to do certain things in every case,
including the following: prepare and obtain the approval of a supervision plan; respond
immediately to “all instances of noncompliance, no matter how minor”; investigate and
document all instances of noncompliance; and “immediately advise the court and the United
States attorney” if the defendant engages in a “higher risk” violations, including “repeated
location monitoring violation[s].”
Plaintiffs maintain that supervisors in the Syracuse
Probation office violated all of those rules. Plaintiffs have also submitted a report from the
Administrative Office of the United States Courts (“the AO”), which found that in connection
37
See, Docket No. [#39-5] at pp. 8-11.
18
with the pretrial supervision of Renz, and regarding the matters about which Plaintiffs are
complaining, supervisors in the Syracuse Probation Office violated a number of mandatory
rules, such as by waiving notification of tamper alerts lasting less than five minutes and
failing to “provide formal supervisory oversight.”
For all of the foregoing reasons the Court finds that Plaintiffs have demonstrated that
the discretionary function exception does not apply to the negligent training and supervision
claims. Defendant’s Rule 12(b)(1) application is therefore denied. Nevertheless, as will be
discussed below, the Court finds that those claims must be dismissed on the merits
pursuant to Rule 12(b)(6).
New York State Law Concerning Negligent Training and Supervision
Defendant has also moved to dismiss the negligent training and supervision claims
on the merits under Rule 12(b)(6), on the grounds that a private person in the Government’s
position would not be liable for such claims under New York State law. It is clear that under
the FTCA, for a claim arising in the State of New York, the Government will be liable only
to the extent that an individual would be liable under New York’s law of torts:
A complaint states a cause of action under the FTCA if it presents a claim that
is (1) against the United States, (2) for money damages, (3) for injury or loss
of property, or personal injury or death (4) caused by the negligent or wrongful
act or omission of any employee of the Government (5) while acting within the
scope of his office or employment, (6) under circumstances where the United
States, if a private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred. With regard to the
sixth requirement . . .[28 U.S.C.] § 1346(b)'s reference to the ‘law of the place’
means law of the State—the source of substantive liability under the FTCA.
Thus, the United States can be made a defendant under the FTCA only if its
actions would render it liable under relevant state law.
Shade v. Housing Authority of City of New Haven, 251 F.3d 307, 314 (2d Cir. 2001)
(citations and internal quotation marks omitted).
19
Defendant asserts that under New York law, claims for “negligent training and
supervision” are barred where employees are acting within the scope of their employment.
Defendant argues, therefore, that “to the extent that” Plaintiffs are attempting to assert
claims for “negligent training and supervision,” they cannot do so, since none of the subject
Probation employees were acting outside the scope of their employment.38
Plaintiffs counter that the FTCA allows lawsuits based on the negligence of “any
employee of the Government while acting within the scope of his office or employment,” 28
U.S.C. § 1346(b), and that, therefore, they should be able to maintain a claim based on the
negligence of all of the probation employees involved in Renz’s case, including negligence
in failing to train and supervise other employees.39
The Court finds that Defendants have accurately stated the pertinent principle of New
York State Law, which is that, “[w]here the acts of ‘employees’ are concerned, an employer
can be held vicariously liable under principles of respondeat superior for acts committed
within the scope of the employee's employment, or may be held directly liable for ‘negligent
hiring, retention, or supervision’ for acts committed outside that scope.” Williams v.
Boulevard Lines, Inc., No. 10 CIV. 2924 DF, 2013 WL 1180389, at *13, n. 10 (S.D.N.Y. Mar.
12, 2013) (citations omitted). Moreover, where a plaintiff is tortiously injured by an employee
acting within the scope of his employment, courts routinely dismiss claims for negligent
training and supervision as unnecessary, since the employer will be liable based on
respondeat superior regardless of whether there was negligent training or supervision. See,
e.g., Bouet v. City of New York, 125 A.D.3d 539, 541, 5 N.Y.S.3d 18, 20 (1st Dept. 2015)
38
See, Def. Memo of Law [#24] at p. 41.
39
See, Pl. Memo of Law at p. 47 (“Plaintiffs’ negligent supervision and training claims allege the
direct and independent negligence of USPO supervisors in failing to exercise due care in performing
their duties as required . . . including participating in the development of a supervision plan for Renz,
approving that plan, ensuring all alerts were responded to, and providing training to federal probation
officers regarding the correct and adequate manner for investigating tamper and motion alerts.”).
20
(“[S]ince it is undisputed that the officers were acting within the scope of their employment
when they failed to record the information regarding the vehicle that struck her and its
operator, the claim of negligent hiring, training and supervision must fail.”); see also, Ruiz
v. Cope, 119 A.D.3d 1333, 1335, 989 N.Y.S.2d 211 (4th Dept. 2014) (“[T]he undisputed fact
that defendant was acting within the scope of his employment should have precluded
plaintiff as a matter of law from bringing a claim that the City was liable for the negligent
training and supervision of defendant.”). The rule is intended to weed out superfluous
claims. See, Karoon v. New York City Tr. Auth., 241 A.D.2d 323, 324, 659 N.Y.S.2d 27 (1st
Dept. 1997) (“Generally, where an employee is acting within the scope of his or her
employment, thereby rendering the employer liable for any damages caused by the
employee's negligence under a theory of respondeat superior, no claim may proceed against
the employer for negligent hiring or retention. This is because if the employee was not
negligent, there is no basis for imposing liability on the employer, and if the employee was
negligent, the employer must pay the judgment regardless of the reasonableness of the
hiring or retention or the adequacy of the training.”) (citation omitted). Thus, the only time
a claim for negligent retention, training or supervision makes sense is when an employee
tortiously injures someone while acting outside the scope of his employment, and the injured
party cannot hold the employer vicariously liable in respondeat superior for the employee’s
tort, but may be able to hold the employer liable for its own negligence in retaining, training
or supervising the employee.
In the instant case, Plaintiffs allege that Phillips was negligent in preparing the pretrial
services report, and that Acquilano was negligent in supervising Renz. Plaintiffs further
contend that Brown and Albright were negligent in supervising and/or training Phillips and
Acquilano. However, it is evident that to the extent that Phillips or Acquilano was negligent,
21
they were acting within the scope of their employment and the United States will be liable
for their negligence in respondeat superior regardless of whether Brown or Albright were
negligent in supervising them. Accordingly, to the extent that Plaintiffs are asserting claims
for negligent training or supervision by Brown and Albright, such claims must be dismissed
as superfluous in accordance with New York State law.
Negligence
The central claim of these consolidated actions is that Federal Probation was
negligent in supervising Renz. Since Plaintiffs are suing under the federal government
under the FTCA, the Court must determine the closest private analog to Probation, and
determine whether such private person would be liable under like circumstances pursuant
to the law of New York State. Here, the parties agree that the closest private analog would
be a person responsible for controlling the acts of a third party as described in Section 319
of the Restatement (Second) of Torts (Ҥ 319").
The issue, therefore, is whether Plaintiffs have plausibly pleaded a claim under § 319.
The applicable legal principles are clear and undisputed:
To prevail on a claim of negligence under New York law, a plaintiff must prove
(1) a duty owed by the defendant to the plaintiff to use reasonable care, (2)
breach of that duty by the defendant, and (3) injury to the plaintiff. In general,
a defendant has no duty to control the conduct of a person to prevent him
from causing harm to others. In certain circumstances, however, the law does
impose such a duty. For example, a special relationship may exist between
the defendant and a third person such that the defendant is required to control
the third person to protect others. The Restatement of Torts provides some
guidance as to when a special relationship exists for these purposes. It states
that a person has a duty to control the conduct of a third person if:(a) a special
relation exists between the actor and the third person which imposes a duty
upon the actor to control the third person's conduct, or (b) a special relation
exists between the actor and the other which gives to the other a right to
protection. Restatement (Second) of Torts § 315 (1963–1964).
***
22
The Restatement also provides that “one who takes charge of a third person
whom he knows or should know to be likely to cause bodily harm to others if
not controlled is under a duty to exercise reasonable care to control the third
person to prevent him from doing such harm.” Restatement (Second) of Torts
at § 319 (1963–1964). New York courts adhere to these principles.
Rivera v. New York City Health & Hosps. Corp., 191 F. Supp. 2d 412, 417-18 (S.D.N.Y.
2002) (citations and footnotes omitted).
Defendant maintains that Plaintiffs’ negligence claims must be dismissed because
Probation had no duty to prevent Renz from harming his victims, and that even if Probation
had such a duty, the injuries to Bresnahan and the child were outside the scope of such
duty. The Court will consider each of these points in turn.
Duty
“The question of whether a defendant owes a duty to a plaintiff or the public at large
is a question of law for the court.” Rivera v. New York City Health & Hosps. Corp., 191 F.
Supp. 2d at 418. With regard to a claim under § 319 alleging a failure to control a third party
with known dangerous propensities, “the two requirements for triggering this duty are: (1)
sufficient knowledge of the danger posed by the third person; and (2) sufficient ability to
control the relevant conduct of the third person.” Saint-Guillen v. United States, 657 F. Supp.
2d 376, 384 (E.D.N.Y. 2009).
In order to find that duty exists to use reasonable care to prevent a third party from
injuring someone, the defendant must have some ability to control the third party:
As set forth in the Restatement (Second) of Torts, “[o]ne who takes charge of
a third person whom he knows or should know to be likely to cause bodily
harm to others if not controlled is under a duty to exercise reasonable care to
control the third person to prevent him from doing such harm.” (Restatement
[Second] of Torts § 319.).
...
The Restatement illustrations
themselves--relating to hospitals caring for contagious or violent
patients--suggest a relationship more closely akin to custody, as that section
has in fact been applied by lower courts. Whatever else may be required,
23
however, at the minimum such a duty requires an existing relationship
between the defendant and the third person over whom “charge” is asserted.
... By the same token, such a duty of necessity must be limited to conduct that
defendant may reasonably control.
D'Amico v. Christie, 71 N.Y.2d 76, 88-89, 518 N.E.2d 896 (1987) (citations omitted). As the
New York Court of Appeals has stated,
liability for the negligent acts of third persons generally arises when the
defendant has authority to control the actions of such third persons. . . .
[T]here exist special circumstances in which there is sufficient authority and
ability to control the conduct of third persons that we have identified a duty to
do so.
Purdy v. Public Adm’r of County of Westchester, 72 N.Y.2d 1, 8 (1988) (emphasis added).
Accordingly, the issue is whether Pretrial Services had “sufficient authority and ability to
control” Renz’s activities that it would be appropriate to find that a duty exists as a matter of
law.
The Court finds that because of the court-ordered relationship between Probation and
Renz, Probation had sufficient authority and ability to control those aspects of Renz’s
behavior upon which Plaintiffs are relying to establish their claim. In that regard, it is helpful
to review exactly what duty Plaintiffs are contending.
Particularly, in response to
Defendant’s motion, Plaintiffs have stated:
Here, Plaintiffs allege that the Government negligently failed to exercise any
care in supervising Renz’s pretrial release, resulting in [the child’s] and
Bresnahan’s injuries. . . . [Probation] owed a duty to [the child] and
[Bresnahan] to exercise reasonable care in supervising Renz’s conditional
pretrial release[.] . . . [Probation] had the authority and obligation to
investigate the alerts, meet with Renz in person and examine the equipment
to determine whether Renz ha[d] been tampering with it. . . . Upon
investigating and finding that Renz was tampering with or appearing to tamper
with his ankle bracelet in violation of his conditional release, all [Probation]
needed to do, and was obligated to do, was notify the United States Attorney
24
and the Court of the events. . . . Under the circumstances of this case,
[Probation] plainly had the ability to control Renz’s conduct by immediately
investigating the alerts it received and reporting Renz’s conduct to the Judge,
who would have taken further action to protect the community, whether
revoking Renz’s release or employing alternatives, such as home arrest.
Pl. Memo of Law [#39-15] at pp. 24, 32,33 (emphasis added).40 Therefore, Plaintiffs are
alleging that Probation had a duty by virtue of its control over Renz’s conduct, which
consisted of the ability to monitor Renz’s ankle bracelet, investigate any alerts, and report
any violations to the U.S. Attorney and/or the Court.41 In sum, Plaintiffs maintain that Pretrial
Services had a duty to exercise reasonable care in supervising Renz’s pretrial release,
especially with regard to monitoring Renz’s electronic ankle bracelet.42
Defendant contends, though, that Probation’s ability to simply monitor Renz was
insufficient to create a duty under Restatement § 319. Rather, Defendant maintains that in
order for a duty to exist, Probation would have needed the ability to arrest Renz.
Specifically, Defendant contends that in order to have “control” within the meaning of § 319,
“the defendant must have the unilateral ability to detain the third person to prevent him from
causing harm to others.”43 Defendant contends that Probation thus lacked such “control,”
since it did not have the ability to unilaterally arrest Renz. See, 18 U.S.C. § 3154 (describing
40
See also, Pl. Supplemental Brief at p. 8 (“[T]he specific duty that was breached was the
Probation Office’s duty to ensure that Renz complied with his pretrial release conditions, which included
responding to all tamper alerts received by meeting with Renz in person, inspecting the equipment,
documenting the alerts and notifying the judge of the alert[s].”).
41
As discussed further below, Plaintiff contends that the duty arises from this measure of control,
in combination with Pretrial Services’ knowledge of Renz’s dangerous propensities.
42
Plaintiff is not alleging that Pretrial Services breached a duty to arrest Renz or to otherwise
physically take him into custody. A defendant cannot establish the lack of duty by pointing to a duty other
than the one the Plaintiff actually pleaded. See, e.g., Splawnik v. Di Caprio, 146 A.D.2d 333, 335-36, 540
N.Y.S.2d 615, 617 (1989) (“Here, the pleadings adequately allege that defendant supplied a dangerous
instrumentality to someone he had reason to know was likely, because of her depressed mental state, to
use it in a manner involving unreasonable risk of physical harm to herself. The duty alleged to have been
breached by defendant is not, as defendant suggests, a specialized duty to prevent decedent's suicide.”).
43
Def. Memo of Law [#24] at p. 24.
25
the functions and powers of Pretrial Services).
Although the Court agrees that Probation lacked the ability to arrest Renz while he
was on preterial release,44 it does not agree that such fact means that Probation lacked
sufficient control over Renz to establish a duty under § 319. Defendant asserts that any duty
arising under Restatement § 319 must involve physically taking the third party into custody.
However, that is not correct, since the “duty to control” referred to under § 319 may take
different forms. See, Avins v. Federation Employment and Guidance Service, Inc., 67
A.D.3d 505, 506, 889 N.Y.S.2d 34, 35 (1st Dept. 2009) (“[T]he [prior] negligent supervision
claim was dismissed because it lacked allegations that FEGS had authority to prevent Derr
from leaving the facility or control his conduct while he was away from the facility, such
allegations being necessary to show a duty on the part of FEGS to protect members of the
general public, such as plaintiff's child, from harm caused by a potentially dangerous
resident of its facility. . . . [T]he present complaint does not allege that FEGS had the ability
to confine Derr to the facility or control his conduct while outside the facility, and thus fails
to correct the prior pleading deficiency.”) (emphasis added).45 For example, under § 319
there may a duty to warn others about the third party, a duty to keep the third person away
from children, or a duty to simply supervise the third person to prevent him from injuring
others.46 Where the defendant has less-than-complete control over the third person, the
duty may be more limited, but does not disappear completely. See, Rivera v. New York City
44
Plaintiff has made only a conclusory allegation to the contrary.
45
Notably, the emphasized language was taken from the Court of Appeals’ decision in Purdy,
wherein the Court indicated that the Defendant did not have the requisite power to control the third party
because it did not authority to either prevent her from “leaving the premises or to control her conduct
while she is off the premises.” If Defendant is correct in asserting that “control” under § 319 of the
Restatement must be custodial, then the Court of Appeals would not have needed to refer to any ability
to control the third party while she was “off the premises.”
46
See, Rausch v. McVeigh, 105 Misc.2d 163, 431 N.Y.S.2d 887 (Sup.Ct. Albany County 1980)
(Denying motion to dismiss § 319 claim for failure to supervise autistic adult who injured a visiting
therapist).
26
Health & Hosps. Corp., 191 F. Supp. 2d at 420-421(Observing that while a mental institution
has less control over an outpatient, “its duty to prevent the patient from harming others is
more limited,” but “does not disappear.”) (citation omitted) .
Defendant nevertheless contends that the instant case is analogous to cases
involving injuries caused by voluntary outpatients of medical/psychiatric facilities, in which
courts have found no duty under § 319. See, Wagshall v. Wagshall, 148 A.D.2d 445, 447,
538 N.Y.S.2d 597, 598 (2d Dept. 1989) (“In a voluntary outpatient treatment setting, a
defendant clinic has been held to have no duty to control its patient’s conduct.”) (citations
omitted); but see, Padula v. County of Tompkins, 303 A.D.2d 804, 805, 756 N.Y.S.2d 664
(3d Dept. 2003) (“[W]hile defendant’s duty to prevent Stagg from harming others was more
limited because of her status as a voluntary outpatient, as opposed to being confined to a
mental institution, it nonetheless was bound to properly monitor Stagg and take whatever
reasonable steps were available to prevent her from harming others.”). Defendant interprets
those cases as meaning that there is no duty under § 319 unless the defendant has actual
physical custody of the dangerous third person. However, the Court disagrees, since it
interprets those cases as holding that because the medical/psychiatric facilities did not have
actual custody of the third parties, they had no other way of controlling the third parties’
actions when they were away from the facilities.47 In other words, the medical/psychiatric
facilities had no “relationship” of control with the third parties when they were away from the
facilities. The instant case is clearly distinguishable, since Probation had a relationship of
control over Renz that did not require actual physical custody.
Specifically, Pretrial Services is an arm of the Court and had a court order authorizing
and directing it to monitor Renz’s activities. Moreover, the pertinent statute indicates that
47
See, e.g., Cartier v. Long Island College Hospital, 111 A.D.2d 894, 895, 490 N.Y.S.2d 602 (2d
Dept. 1985) (Hospital had no duty to control man who drove while intoxicated and injured the plaintiff,
where the driver “merely attended the hospital’s out-patient alcoholism clinic and had not been admitted
to the hospital.”).
27
defendants who are granted pretrial release are “released into [Pretrial Services’] custody.”
18 U.S.C. § 3154(3) & (5) (emphasis added). As part of such custody, Pretrial Services had
around-the-clock electronic monitoring of Renz’s whereabouts. Pretrial Services also had
the ability to receive instantaneous notice if Renz tampered with the electronic bracelet.
Further, if Pretrial Services had investigated the tamper alerts that it received, it could have
initiated the process to have Renz quickly taken into physical custody. See, 18 U.S.C. §
3154(5); see also, United States v. Brewster, No. 99 CR 16, 1999 WL 294784, at *1
(E.D.N.Y. Mar. 16, 1999) (“Upon request of the Pretrial Services Agency, the defendant was
ordered taken into custody.”); United States v. Hollender, 162 F. Supp. 2d 261, 269
(S.D.N.Y. 2001) (“Electronic monitoring is not the equivalent of having a camera trained on
an accused 24 hours a day. However, if . . . the monitoring works properly, Pretrial Services
would be notified immediately should [the defendant violates his curfew], and could obtain
a warrant within the hour.”) (emphasis added). In light of Judge Baxter’s warnings when he
released Renz, it is reasonable to infer, at the pleading stage, that he would have revoked
Renz’s pretrial release if he had been informed that Renz was repeatedly tampering with his
electronic monitoring bracelet.
In consideration of these facts, the Court finds, contrary to what Defendant has
argued, that Pretrial Services possessed at least as much authority to trigger the process
to have Renz detained as doctors in New York possess to have dangerous mental patients
involuntarily committed. See, Rivera, 191 F.Supp.2d at 422-423 (Discussing the pertinent
provision of the New York Mental Hygiene Law and concluding that, “New York law thus
establishes that mental health providers have a duty to their patients, and they have a duty
to third parties in certain circumstances, and they have mechanisms by which to seek to
control patients, including outpatients, who are a threat to themselves or others.”).
Having found that Defendant had sufficient control over Renz to support a duty under
28
§ 319, the Court will now consider whether, in addition, Defendant had sufficient notice of
Renz’s dangerous propensities. Section 319 of the Restatement (Second) of Torts applies
where the defendant has knowledge of the third party’s dangerous propensity. See, § 319
RESTATEMENT (SECOND) OF TORTS, Comment a. (Indicating that the section applies where
“the actor has charge of a third person . . . who has a peculiar tendency so to act of which
the actor from personal experience or otherwise knows or should know.”). Defendant
maintains that Probation did not have notice of Renz’s dangerous propensities, since at the
relevant time Renz had no criminal record and the crime for which he was charged did not
involve contact with a minor. Defendant also points out that while Probation knew that Renz
had been on probation for a family court matter involving a sexual offense against a minor,
it had no information that Renz personally had contact with the child.
However, the Court finds that Plaintiffs have plausibly pleaded that Probation had
sufficient notice of Renz’s dangerous propensities to establish a duty under § 319. As
already noted, Probation was aware that by law the crime with which Renz was charged was
considered a crime of violence. Additionally, although Probation did not have access to
Renz’s Family Court file, it had sufficient information to conclude, as part of the Pretrial
Services Report, that Renz posed a danger, due to a “History/Charge Involving a Child” and
a “History/Charge Involving Sex Offense/Abuse.” Additionally, Probation recommended in
the Pretrial Services Report that Renz be prohibited from being around minors.
In sum, Plaintiffs have sufficiently pleaded that Probation had enough knowledge and
control to establish a duty under § 319 to use reasonable care in supervising Renz.
Scope
Defendant alternatively argues that even if Probation had a duty to use reasonable
care in supervising Renz, the scope of such duty did not extend to the injuries caused to
Bresnahan and the child, because such injuries were not a foreseeable result of the failure
29
to monitor Renz. Instead, Defendant maintains that the foreseeable risk of failing to monitor
Renz was that he would abscond. See, Def. Memo of Law [#24] at p. 38 (“The foreseeable
risk of the Probation Office’s failure to respond to tamper alerts is that Renz would remove
his ankle bracelet and abscond from the district[.] . . . [N]othing in Renz’s background
made it reasonably foreseeable that he would commit a violent sexual assault.”). However,
the Court disagrees and finds that Defendant has not demonstrated as a matter of law that
the injuries to Bresnahan and the child were unforeseeable results of a failure to supervise
a pretrial releasee with Renz’s characteristics.
Under the law of New York State, “[t]he scope of the duty is limited to risks of harm
that are reasonably foreseeable. Foreseeability is defined by actual or constructive notice
[of the particular risk of harm].” Qin Chen v. U.S., 494 Fed.Appx. 108, 2012 WL 2752723 (2d
Cir. Jul. 10, 2012); see also, Pulka v. Edelman, 40 N.Y.2d 781, 783-784, 390 N.Y.S.2d 393
(1976) (“The principle expressed in Palsgraf v. Long. Is. R.R. Co. . . . is applicable to
determine the scope of duty — only after it has been determined that there is a duty. . . .
When a duty exists, nonliability in a particular case may be justified on the basis that an
injury is not foreseeable. In such a case, it can thus be said that foreseeability is a limitation
on duty.”).
“In determining whether a particular harm or hazard is within the scope of the risk
created by the actor’s conduct, ‘risk’ must be understood in the broader sense of including
all of those hazards and consequences which are to be regarded as normal and ordinary.”
Restatement (Second) of Torts § 281, Comment g.; see also, Pinero v. Rite Aid of New
York, 294 A.D.2d 251, 252, 743 N.Y.S.2d 21, 22 (1st Dept. 2002) (“[T]he risk of injury as a
result of defendant’s conduct must not be merely possible, it must be natural or probable.”).
“Although a plaintiff must show that the defendant reasonably could have foreseen the
danger against which the defendant allegedly failed to guard, the plaintiff need not
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demonstrate that the precise manner in which the accident happened, or the extent of
injuries, was foreseeable.” Mays v. City of Middletown, 70 A.D.3d 900, 902, 895 N.Y.S.2d
179, 182 (2d Dept. 2010) (citation and internal quotation marks omitted). On this point, the
Restatement (Second) of Torts states:
Where the harm which in fact results is caused by the intervention of factors
or forces which form no part of the recognizable risk involved in the actor’s
conduct, the actor ordinarily is not liable. This is subject, however, to the
qualification that where the harm which has resulted was itself within the risk
created, the fact that it has been brought about in a manner which was not to
be expected, or by the intervention of forces which were not within the risk,
does not necessarily prevent the actor’s liability.
Id., § 281, Comment f. (emphasis added).
Here, the Pretrial Services Report indicated that Renz was charged with receipt and
possession of child pornography, and that he “pose[d] a risk of danger” because of the
nature of that charge, and because he had a “history/charge involving sex offense/abuse.”
Even though Renz had not yet been convicted of the child pornography charge, and even
though Probation did not have an accurate understanding of the severity of Renz’s prior
sexual abuse of a child, Probation evidently understood that he posed a risk of sexually
assaulting a child, since the Pretrial Services Report recommended, inter alia, that Renz be
prohibited from “frequent[ing] places where persons under the age of 18 are likely to
congregate,” and from “hav[ing] any direct contact with a person under the age of 18.”
Based on these factors, Plaintiffs have plausibly alleged that Pretrial Services knew or
should have known that a failure to exercise ordinary care in enforcing Renz’s conditions of
supervised release could result in a sexual attack on a child. Moreover, with regard to the
injuries to Bresnahan, Plaintiffs point out that young children are usually accompanied by
an adult, who would be within the zone of danger created by such an attack. Accordingly,
the Court finds that Plaintiffs have plausibly pleaded that the injuries to Bresnahan and the
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child were within the scope of Probation’s duty under § 319 to exercise reasonable care in
supervising Renz.
Immunity for Preparing the Pretrial Services Report
Defendant also contends that it is immune from tort liability in connection with the
preparation of the pretrial services report. In that regard, Plaintiffs maintain that Phillips was
negligent in failing to investigate the details of Renz’s Family Court offense. However,
Defendant only raised this point for the first time in its reply brief, see, Def. Reply Memo
[#45] at pp. 12-14, and accordingly the Court declines to reach the issue.
Negligent Infliction of Emotional Distress
Defendant maintains that Plaintiffs have not pleaded claims for NIED, since such a
claim must allege “extreme and outrageous conduct,” while Plaintiffs have alleged only
negligence. There is ample case authority for Defendant’s contention. See, e.g., Deak v.
Bach Farms, LLC, 34 A.D.3d 1212, 825 N.Y.S.2d 852 (4th Dept. 2006) (“A cause of action
for either intentional or negligent infliction of emotional distress must be supported by proof
of conduct by a defendant that is so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.”) (emphasis added) (citing Dillon v. City of New York,
261 A.D.2d 34, 704 N.Y.S.2d 1 (1st Dept. 1999)). However, the New York State Supreme
Court, Appellate Division, Second Department, recently purported to clarify that “extreme
and outrageous conduct” is not a required element of an NIED claim. See, Taggart v.
Costabile, 14 N.Y.S.3d 388, 398 (2d Dept. Jun. 24, 2015) (“[W]e now clarify that,
notwithstanding case law to the contrary, extreme and outrageous conduct is not an
essential element of a cause of action to recover damages for negligent infliction of
emotional distress. ”) (Indicating that such ruling was consistent with both the decisions of
the New York Court of Appeals and the New York Pattern Jury Instructions). Since the
32
issuance of Taggart v. Costabile, federal district courts in this Circuit have issued conflicting
rulings as to whether New York NIED claim requires extreme and outrageous conduct.
Compare, Smith v. City of New York, No. 14–CV–4982, 2015 WL 4008642 at *2 (E.D.N.Y.
Jun. 30, 2015) (Weinstein, J.) (Indicating that “extreme and outrageous conduct” is an
element of a NY NIED claim), with Abdel-Karim v. EgyptAir Airlines, — F.Supp.3d — , 2015
WL 4597555 at *18 (S.D.N.Y. Jul. 31, 2015) (“A New York state appellate court has recently
clarified that ‘extreme and outrageous conduct is not an essential element of a cause of
action to recover damages for negligent infliction of emotional distress.’”) (Koeltl, J.) (citing
Taggart v. Costabile). This Court will follow the ruling in Taggart v. Costabile, since it
appears exhaustively researched, well-reasoned, and consistent with rulings of the New
York Court of Appeals. See, e.g., Kennedy v. McKesson Co., 58 N.Y.2d 500, 504, 448
N.E.2d 1332, 1334, fn. * (1983) (Indicating that “outrageous conduct causing mental
disturbance” pertains to “an intentional tort,” apparently referring to intentional infliction of
emotional distress); see also, Johnson v. State, 37 N.Y.2d 378, 381, 372 N.Y.S.2d 638,
(1975) (quoting PROSSER,TORTS 4th ed. as explaining that, unlike intentional infliction of
emotional distress, negligent infliction of emotional distress does not involve “extreme[ly]
outrage[ous]” conduct.); 86 C.J.S. Torts § 84 (“[U]nlike a claim for intentional infliction of
emotional distress, a claim for negligent infliction of emotional distress does not require
proof of outrageous conduct.”). Accordingly, Defendant’s motion to dismiss the NIED
claims, for failure to plead extreme and outrageous conduct, is denied.48
CONCLUSION
Defendant’s application to dismiss is granted with regard to the negligent training and
supervision claims, but is otherwise denied. Defendant’s alternative request for summary
48
Defendant’s reply brief raises additional points, including that NIED claims are “disfavored” by
New York courts, and that such claims should be dismissed as duplicative where the plaintiff can obtain
relief under a more traditional tort remedy. However, the Court does not consider these arguments since
they were not part of Defendant’s initial motion.
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judgment is denied without prejudice to renew once discovery is completed.
SO ORDERED.
Dated: Rochester, New York
February 3, 2016
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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