This was originally published on the SGR Blog.
Were City, Hospital and Police Officer Liable for Injury?
On August 25, 2017, while under arrest by the New York City Police Department, Joseph Curet was taken by ambulance from the precinct to St. Barnabas Hospital due to complaints of chest pain. He was accompanied to the Hospital by P.O. Joseph Keith. Curet’s left arm was cuffed to the stretcher and his legs were in shackles. Keith remained with Curet in the emergency room. While laying on the stretcher in the emergency room, Curet was suddenly approached by another patient, Tomas Berroa, and was stabbed in the chest and the right arm.
Curet testified that, on August 25, 2017, he took PCP and called 911 threatening to kill police officers, after having an argument with an officer in the 7-Eleven across the street from his home. As a result, NYPD officers responded to his home and he was arrested. He was taken to the 46th Precinct and began experiencing chest pains. An ambulance was called, and he was taken to the hospital. Keith went with Curet to the hospital. Curet was in the emergency room for five minutes when the incident occurred. Tthe entire time, Keith was standing with him. After five minutes passed, Berroa stabbed him. Curet had never seen Berroa prior to the incident. He did not notice him in the emergency room in the five minutes prior to the incident. He did not have any conversation with Berroa in the emergency room. He was never affiliated with a gang. Keith was standing next to Curet when he was stabbed. After the stabbing occurred Keith restrained Berroa.
According to Keith, Curet was arrested at approximately 3:30 am for terroristic threats. At approximately 5:00 am, Keith accompanied Curet to the hospital for complaints of chest pain. Keith remained with Curet while he was at the hospital. Curet was placed in a common area next to the nurse’s station upon arriving. The incident occurred approximately fifteen (15) minutes after their arrival at the hospital. Keith remained next to Curet the entire fifteen minutes. Keith testified that while the area was active with people, no one other than hospital staff approached Curet prior to the incident. Keith noticed Berroa when he entered the emergency room.
As he surveyed the room he noticed him sitting to the left. He was sitting in a chair and he appeared to just be waiting. Berroa was approximately twenty (20) feet from where Keith was standing. Keith did not speak to Berroa, did not notice him holding anything, and while Berroa stared at them, it did not seem unusual, given the situation. Keith did not feel there was cause for concern. Curet did not say anything to Keith regarding Berroa. Keith testified that that he did not see Berroa walk past him until after Curet was stabbed and that point he restrained Berroa, and that if he had seen Berroa with a knife, he would have stopped him from stabbing Curet.
Cedric Lopez, security supervisor at the hospital, was in the basement security office when he was summoned to the Emergency Department to render assistance. The hospital employed one security guard in each of its emergency departments on the date of the incident. Joseph Bailey was the security officer on duty in ED-1 at the time of the incident. There were no metal detectors in the emergency rooms, nor at the entrance of the Emergency Department. The hospital security guards were to search persons “under observation” as a potential threat to other patients. Berroa did not fit that criteria based on his intake assessment.
The Court reviewed the video of the incident. The video revealed that at 5:30 am, P.O. Keith and Curet could be seen in a common area of the Emergency Department. P.O. Keith was standing next to Curet’s stretcher. Curet could be seen handcuffed to the bed. At 5:36:48, Berroa could be seen coming into the frame and walking toward Curet and P.O. Keith from their left. At 5:36:48, Curet could be seen making a motion with his arm. At 5:36:52, Berroa stabbed Curet. At 5:36:53, P.O. Keith began moving towards Berroa. At 5:36:53, P.O. Keith began to attempt to restrain Berroa. Thereafter, P.O. Keith could be seen taking Berroa to the ground with the help of another individual at 5:36:59.
The City and P.O. Keith moved to dismiss and for summary judgment on the grounds that the assault was not reasonably foreseeable; reasonable and adequate care was exercised; an intervening criminal act unrelated to the City defendants was the proximate cause of the incident; P.O. Keith was acting within the scope of his employment and as such Curet’s negligent hiring and retention claim must be dismissed.
Curet opposed the motion and averred that P.O. Keith owed him a duty of care pursuant to the NYPD Patrol Guide, because the City assumed physical custody of Curet as he was under arrest when transported to a hospital that had an extensive history of violent criminal activity. P.O. Keith was negligent in failing to take measures to protect Curet and in allowing Berroa to approach him in violation of the NYPD Patrol Guide.
The Hospital moved for summary judgment submitting that Curet failed to establish the element of foreseeability; the Hospital conformed to its duty of care; the Hospital was not the proximate cause of Curet’s injuries; and the most intense supervision could not have prevented the incident from occurring.
Curet opposed the Hospital’s motion on the grounds that Berroa’s attack was foreseeable in light of the prior criminal activity at the Hospital and the Hospital’s failure to provide adequate security in the Emergency Department was a substantial factor in causing Curet’s assault.
The City met the prima facie burden and Curet failed to raise a triable issue of fact in opposition. There was approximately four (4) seconds from when Berroa began approaching Curet and when he was stabbed at 5:36:52. P.O. Keith reacted at 5:36:53. Prior to the attack, Curet and Berroa had no contact, exchanged no words, and Berroa caused no reason for concern. Curet did not say anything to P.O. Keith about Berroa prior to the attack. According to Curet, “everything happened fast” and his attacker “out of nowhere” stabbed him. The entire incident took 4 seconds and P.O. Keith reacted within one (1) second of the attack. As such, the Court found that the attack on Curet was unprovoked, spontaneous, and not reasonably foreseeable. As a result, liability could not attach to the City.
Curet contented that, regardless of foreseeability, the Patrol Guide imposed a separate, independent duty of care upon the City defendants that was unavailing. Curet cited to a Patrol Guide section that was mostly inapplicable. While the referenced section was is entitled “hospitalized prisoners,” it largely pertained to preventing the escape of the hospital prisoner and preventing the hospital prisoner from gaining access to contraband. While the patrol guide did outline approved visitors and authorized persons who may visit, to say that it imposed a duty on the officer to prevent an unforeseeable event from occurring was to impose a duty greater than that imposed by law.
The City could not be held liable for another individual’s “impulsive and spontaneous act,” for which reasonable supervision would not have guarded against. P.O. Keith did not leave Curet’s side while in the emergency department. Curet and P.O. Keith were situated in an active emergency room area. Many people were seen walking by and near both Curet and P.O. Keith. According to Curet’s own testimony, Berroa came out of nowhere. According to P.O. Keith, he surveyed the area and Berroa did not concern him. P.O. Keith did not see Berroa with a knife prior to the incident. As such, the City and P.O. Keith were not liable for Berroa’s impulsive and spontaneous act. Curet’s negligence cause of action as against the City and P.O. Keith was dismissed.
Property owners have a common-law duty to “minimal precautions” to protect visitors from foreseeable harm, including foreseeable criminal acts. Since, however, the owner or possessor is not an insurer of the safety of those who use the premises, he cannot, even in the background of a history of crime committed on the premises, be held to a duty to take protective measures unless it is shown that he knew or, from past experience, had reason to know, that there was likelihood of third-party conduct likely to endanger the safety of those using the premises. Pursuant to the evidence submitted by the Hospital, there had been no attacks in the emergency room involving weapons or serious injury in the three years prior to the incident occurring. Further, Berroa did not meet the criteria for search or for close observation based upon his initial assessment by the Hospital.
Curet contended that the Hospital had an extensive history of prior violent criminal activity regarding patients and visitors. While Curet pointed to calls of service to the Hospital, he submitted evidence of calls to any part of the hospital and by both patients and visitors. Additionally, there was no evidence submitted that all of the reported crime took place at or near the Hospital. It could have happened in any location and the reporting took place from the Hospital. Moreover, the Hospital had reporting requirements regarding certain crimes that did not take place at the Hospital that must be reported.
To establish foreseeability, the criminal conduct must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location. A review of the incident reports submitted for the Emergency Department showed that, while there were patient-on-patient assaults within the six-year period prior to Curet’s attack in the Emergency Department, none involved a weapon such as a knife. The three assaults that did involve the use of an object involved an IV pole, a chair, and an umbrella. The Court noted that the existence of a metal detector would not have prevented or affected any of those prior assaults. As such, the Court found that the incident was not foreseeable and Curet’s complaint as to the Hospital was dismissed.
The motions were granted and Curet’s complaint was dismissed.