
    Bernard McCummings, Respondent, v New York City Transit Authority, Appellant.
    Argued January 12, 1993;
    decided April 5, 1993
    
      APPEARANCES OF COUNSEL
    
      Lawrence Heisler, Brooklyn, Albert C. Cosenza and Lawrence A. Silver for appellant.
    
      Joel A. Brenner, New York City, and David Breitbart for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as it affirmed the judgment of Supreme Court should be affirmed, with costs.

A jury awarded a verdict for personal injuries sustained by plaintiff who was permanently paralyzed from the midchest down when his spinal cord was severed by a bullet fired by Officer Rodriguez, an employee of defendant. The theory of plaintiffs case as submitted to the jury was common-law negligence — i.e., that Officer Rodriguez, in employing deadly physical force in an effort to apprehend plaintiff, did not exercise that degree of care which would reasonably be required of a police officer under similar circumstances (see, e.g., Flamer v City of Yonkers, 309 NY 114; Herndon v City of Ithaca, 43 AD2d 634, 635; Prosser and Keeton, Torts § 26, at 155-156 [5th ed]; 2C Warren, Negligence, Policemen and Firemen, § 84.01 [1] [b] [4th ed 1990]). According to plaintiffs testimony and other proof, plaintiff was unarmed and running away from the scene of the attempted robbery when Officer Rodriguez shot him in the back. The Appellate Division affirmed, with one dissent, and granted defendant leave to appeal to this Court.

The principal question is a narrow one: whether the evidence in the record warrants the trial court’s denial of defendant’s dismissal motion made at the close of plaintiff’s case and renewed at the close of the evidence. In deciding whether plaintiff has made out a prima facie case for submission to the jury, of course, a court must be "guided by the rule that the facts adduced at the trial are to be considered in the aspect most favorable to [plaintiff] and that [plaintiff is] entitled to the benefit of every favorable inference which can reasonably be drawn from those facts” (Sagorsky v Malyon, 307 NY 584, 586). It is settled that negligence cases by their very nature do not lend themselves to summary dismissal "since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination” (Ugarriza v Schmieder, 46 NY2d 471, 474; see also, Andre v Pomeroy, 35 NY2d 361, 364-365).

Here the evidence presents sharp factual issues. The key question — whether Rodriguez saw a violent crime in progress —is disputed. Plaintiff testified that when he was shot he had fled down a flight of stairs and was already some distance away from the scene of the attempted robbery and from Officer Rodriguez who was at the top of the stairs. Plaintiff stated that he was running away from Officer Rodriguez when Officer Rodriguez fired and hit him twice in the back. Officer Rodriguez, on the other hand, testified that the shooting occurred at the top of the stairs. Plaintiff and his companion, according to Rodriguez, were lunging toward him and only four feet away when he fired. Corroborating plaintiff’s testimony are the following items of proof: plaintiff was shot in the back; blood was found only on the platform at the bottom of the stairs where plaintiff was lying; according to expert testimony plaintiff could not have run down the stairs after the bullet severed his spinal cord; both the victim and the officer accompanying Rodriguez testified that plaintiff did not lunge at Rodriguez. The victim himself testified that he was standing against the wall when the officers approached, and plaintiff fled down the stairs before shots were fired.

Defendant cites the Supreme Court’s decision in Tennessee v Garner (471 US 1) and argues that that case, in some way, entitles it to a dismissal. But the rule in Tennessee v Garner deals with the protections guaranteed by the Federal Constitution for the person being arrested — not for the arresting police officer or the municipality. It establishes the minimum standard of care which a police officer must exercise in making an arrest to avoid violation of the arrestee’s Fourth Amendment rights. Contrary to defendant’s contention, Tennessee v Garner does not create a limitation on plaintiff’s right to recover or a shield of immunity for a municipal defendant in a common-law negligence action. Even if the constitutional standard of care under Tennessee v Gamer were adopted as the precise standard for common-law negligence, there would still be factual issues requiring a trial including, most significantly, whether it was reasonable for Rodriguez to believe that the use of deadly force was appropriate and necessary under the circumstances.

Nor, again contrary to defendant’s contentions, is there any basis for dismissal under Penal Law § 35.30. Penal Law § 35.30 sets forth the circumstances when a police officer, charged with criminal conduct for using deadly physical force in making an arrest, can claim that the conduct was justified and, therefore, not criminal. The question of whether a police officer’s conduct is justified in a criminal case is, of course, a factual matter for the jury. Similarly, if Penal Law § 35.30 were used as the sole measure of the standard of care required of Officer Rodriguez here, there would be triable issues for the jury including whether Rodriguez could have reasonably believed that deadly force was appropriate and necessary under the circumstances.

Although the dissenters would have it otherwise, this is a negligence case governed not by Federal law but by the common law of this State. In deciding the case we must, of course, take the view of the evidence most favorable to the plaintiff. The factual issues were sharply defined: whether Officer Rodriguez came upon the scene during or after the mugging; whether Officer Rodriguez saw any evidence that plaintiff had committed a violent crime; whether, firing from the top of the stairs, Officer Rodriguez hit the unarmed plaintiff in the back and severed his spinal cord while he was running away at the bottom of the stairs or whether Rodriguez hit plaintiff while he was four feet away and lunging at Rodriguez. It was plaintiff’s right to have these factual issues decided by the jury.

The fatal flaw in both dissents is their failure to view the facts in the light most favorable to plaintiff, which the law requires us to do. Instead, the dissent of Judge Bellacosa states that a team of officers "witnessed plaintiff McCummings rummaging through [the victim’s] pockets as another mugger held him down in a choke hold” and that "[c]oncededly, [the victim] suffered serious bodily harm,” while Judge Titone’s dissent states the police officers "came upon what was clearly a mugging” with a scene that "left no room for doubt that a crime of violence * * * had just occurred.” The dissents neglect the crucial fact that the most favorable view of the evidence for plaintiff is that Officer Rodriguez did not see a mugging and did not know whether a violent crime had been threatened or committed. Deadly force of course may be appropriate in some circumstances to prevent the flight of a violent felon. However, this record does not support the conclusion, as a matter of law, that deadly force was used for this purpose.

To be sure, plaintiff committed a crime but it is the province of the criminal, not the civil, justice system to punish him for his wrong. He has been convicted and will be dealt with as the law requires. In fulfilling our judicial responsibilities, we may not, as is suggested, depart from established principles of law to avoid what may to some seem to be an unacceptable resolution of the factual disputes.

Defendant’s remaining contentions are either unpreserved or without merit.

Titone, J.

(dissenting). I dissent. It is undisputed that the law permits police officers to use physical force, and even deadly physical force, when reasonably necessary to prevent the escape of a fleeing felon who has committed a violent crime. Nothing in the recent Supreme Court case law contradicts that obvious legal precept, whose vitality is so critical to the preservation of an orderly society (see, Graham v Connor, 490 US 386; Tennessee v Garner, 471 US 1). Since the archetypal facts in this case fit squarely and neatly within the contours of this fundamental axiom governing law enforcement’s prerogatives, I would hold that the police officers’ actions in this case were, as a matter of law, reasonable and that, accordingly, plaintiff’s tort claim should not have been submitted to the jury.

Like my dissenting colleague Judge Bellacosa, I begin with the recognition that questions involving the reasonableness of a particular actor’s conduct are ordinarily reserved for resolution by a trier of fact (see, e.g., People v Harrison, 57 NY2d 470, 477-478; Ugarriza v Schmieder, 46 NY2d 471, 475-476; Andre v Pomeroy, 35 NY2d 361; Sadowski v Long Is. R. R. Co., 292 NY 448, 455). However, this "established” principle of procedural law (see, majority mem, at 928) does not provide an automatic entree to a jury (Andre v Pomeroy, supra). As we have noted on many occasions, the courts still have the duty to "make the threshold determination as to whether the plaintiff, by introducing adequate evidence on each element, has made out a case sufficient in law to support a favorable jury verdict” (Basso v Miller, 40 NY2d 233, 242). Where such a threshold showing has not been made, " 'the case should go no further’ ” and the claim should be dismissed "as a matter of law” (Akins v Glens Falls City School Dist., 53 NY2d 325, 332).

The need for thoughtful application of these principles with a view toward weeding out truly meritless claims is particularly acute in cases such as this involving claims of excessive force by the police. Confrontations between police officers and criminal suspects often — indeed, almost necessarily — involve an element of force. Thus, some clear boundaries for what does and does not constitute "reasonable” force must be delineated as a matter of law, lest every pursuit and arrest resulting in injury lead to a fully litigated tort case that must be submitted to a jury. The specter of civil juries regularly and routinely weighing the "reasonableness” of police conduct during the course of an arrest in much the same manner as they would weigh the reasonableness of an automobile driver’s responses to a traffic situation is an unacceptable outcome, particularly in light of the likely chilling effect that such an outcome would have on the efforts of law enforcement personnel. In the presence of such weighty policy considerations, we should not be hesitant to dismiss claims of excessive force where the police conduct in question can readily be characterized, as a matter of law, as reasonable.

This case provides a classic illustration of when such a disposition is appropriate. Responding promptly to the 72-year-old victim’s cry for help, the police in this case came upon what was clearly a mugging. What the officers saw and heard when they arrived at the scene left no room for doubt that a crime of violence involving at least two attackers and a "lookout” had just occurred. Further, as even plaintiff’s evidence indicated, the attackers attempted to flee down a flight of steps and through a subway passageway as soon as they were alerted to the presence of the police. Given the immediacy of the occurrence, the clear risk of an escape into the labyrinthine subway system and the obvious need to act quickly and without reflection, I would conclude, without reservation, that the arresting officer acted reasonably as a matter of law when he fired his gun at the fleeing suspect in an effort to prevent him from eluding arrest and remaining free to commit other violent crimes against other innocent victims. Any other conclusion would cast a serious pall on the ability of the police to do the job society has assigned them: preventing crime and apprehending violent criminals.

Bellacosa, J.

(dissenting). Affirming this plaintiff’s $4.3 million jury award against the Transit Authority is not required or supportable under sound legal principles. This case should not be driven by general nostrums pertaining to ordinary negligence cases. Therefore, I respectfully dissent, vote to reverse the order of the Appellate Division, and would dismiss the plaintiff’s case outright.

Plaintiff McCummings was one of the muggers who attacked Jerome Sandusky, 72 years of age, in the 96th Street-Eighth Avenue line subway station on June 28, 1984. A team of on-duty undercover transit police officers responded to Sandusky’s cry for help, and witnessed plaintiff McCummings rummaging through Sandusky’s pockets as another mugger held him down in a choke hold. Concededly, Sandusky suffered serious bodily harm.

On the most favorable view of the evidence to plaintiff, he was caught in the act of committing an all-too-common subway attack on a particularly vulnerable target of opportunity. He broke off from the attack only to avoid arrest by attempting to flee the crime scene after an alert from his lookout. The officer, who fired his weapon and seriously wounded the perpetrator-turned-plaintiff, testified that the plaintiff and another of the muggers, only several feet away, lunged at him when he rushed into the crime scene. The officer’s attempt to rescue the victim and arrest the culprits consumed only seconds. As a defendant in the criminal proceeding, the plaintiff in this civil action pleaded guilty to attempted robbery in the second degree. Ironically, his criminal sentence is capped by a multimillion dollar recovery against the citizenry at large.

The dispositive issue is whether the defendant City Transit Authority’s motion to dismiss the excessive force civil claim by McCummings should have been granted. I conclude that the evidence irrefutably supports the view that the officer acted reasonably and without excessive force, as a matter of law, under Penal Law § 35.30, Tennessee v Garner (471 US 1) and Graham v Connor (490 US 386). Thus, I am baffled by the inversion of justice wrought in this case. The New York justification statute and the United States Supreme Court precedents combine to create a special duty universe within which to assess the standard of care by which to measure the officer’s response to an emergency violent crime situation.

That special duty universe involving municipal tort liability is ignored by the Court. Instead, it treats this case as a plain negligence claim governed by pro forma rubrics. The transit officers’ paramount job was to stop the criminal assault and robbery, and to apprehend those committing the dangerously illegal acts in their presence. Indeed, that was the special obligation of this antimugger subway patrol unit. These are features which make this case different and call for distinct, realistic and proportionate rules of governmental responsibility and judicial review.

The fact that reasonableness of conduct, including that of municipal agents, is ordinarily a jury question (see, Dunn v State of New York, 29 NY2d 313; Stanton v State of New York, 26 NY2d 990, rearg denied 27 NY2d 817), does not compel the result here driven by procedural generalities. In effect, the "majority would delegate to the jury the responsibility to determine the applicable social policy, thus abdicating the judicial role” (Basso v Miller, 40 NY2d 233, 243 [Breitel, Ch. J., concurring]).

This Court has expressly recognized that not every case in which the ultimate issue is reasonableness must end with a jury. The Court has instead manifested prudential suppleness in its substantive and procedural rules governing municipal liability. Thus, in Akins v Glens Falls City School Dist. (53 NY2d 325, rearg denied 54 NY2d 831), the Court found the question of a municipal duty of reasonable care resolvable as a matter of law. Similarly, in Andre v Pomeroy (35 NY2d 361), this Court reversed an order of the Appellate Division and granted the plaintiffs motion for summary judgment that the defendant was negligent as a matter of law. While the Court acknowledged the rarity of using summary judgment in negligence cases, it realistically ruled that the defendant’s negligence was "conclusively established,” since her behavior "could not be considered reasonable conduct under any standard and it does not take a trial to resolve that point” (id., at 365). The Court’s refusal to apply that principle here for another exceptional situation, on the opposite side of the liability spectrum, is rigidly uneven, because if negligence can be conclusively established as a matter of law on summary judgment, all the more should lack of negligence be susceptible to a directed verdict motion, after all plaintiffs evidence has been presented (see also, Carter v City of Chattanooga, 803 F2d 217, on reh 850 F2d 1119, cert denied 488 US 1010; Pruitt v City of Montgomery, 771 F2d 1475, reh denied 777 F2d 704; Ramos Ayala v Diaz Martinez, 707 F Supp 75).

Since the eclipse of general municipal immunity, this Court has not shirked its common-law responsibility of restoring appropriate policy-based barriers to otherwise open-ended municipal liability. In Weiss v Fote (7 NY2d 579, rearg denied 8 NY2d 934), the Court determined that the State could not be held liable for the alleged faulty placement of a traffic signal. The Court recognized the exercise of municipal expert discretionary judgment in planning for the public safety as follows:

"Nothing in the legislative history of the Court of Claims Act * * * indicates that the waiver provision was designed to override the well-defined and carefully reasoned body of law governing the measure of the State’s responsibility for highway safety. The city’s defense which we here sustain rests not on any anachronistic concept of sovereignty, but rather on a regard for sound principles of government administration and a respect for the expert judgment of agencies authorized by law to exercise such judgment. In the area of highway safety, at least, it has long been the settled view * * * that courts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits” (id., at 588 [emphasis added]).

Realism in the realm of public safety is the touchstone of that case and its holding.

By contrast, the instant case approaches the surreal zone. It involves split-second decisions by public safety employees made in the most dangerous and volatile circumstances — here, transit officers rushing into ongoing, highly dangerous and violent criminal activity. These public safety employees are surely no less expert than city planners who decide, with relaxed reflection, where a stop sign or a traffic signal belongs. The Weiss rationale thus helps to support dismissal of this case and avoidance of counterproductive second-guessing exercises (see, Dunn v State of New York, 29 NY2d 313, supra; Stanton v State of New York, 26 NY2d 990, supra).

Allowing criminal defendants involved in the commission of violent felonies to reach civil juries as a matter of course on the issue of excessive force taunts the concept of evenhanded justice. This plaintiff, a convicted mugger, can readily gain a lottery-size verdict against the public fisc while faultless citizen victims, like the elderly person in this case, are blocked from even their day in court for gross police nonfeasance under special duty municipal barriers (contrast, Weiner v Metropolitan Transp. Auth., 55 NY2d 175; see, e.g., Kircher v City of Jamestown, 74 NY2d 251; Merced v City of New York, 75 NY2d 798; see also, Santangelo v State of New York, 71 NY2d 393). The fact that some distinctions emerge in cases involving various municipal duty categories underscores the need for a limiting analytical and dispositional path. Notably, our Court has also withheld negligence recoveries from injured persons, as a matter of policy line drawing, when they assume certain risks (see, e.g., Turcotte v Fell, 68 NY2d 432; Akins v Glens Falls City School Dist., 53 NY2d 325, supra). If nothing else, this plaintiff should be deprived of his windfall against the municipal pocketbook on the public policy and theory that he assumed the risk of his injuries as part of the hazards of his chosen predatory pursuits.

In Tennessee v Garner (471 US 1, supra) and Graham v Connor (490 US 386, supra), the United States Supreme Court set standards for the use of force to apprehend a suspect in a nonpersonal, property-type crime. Gamer added, however, that "if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape” (471 US, at 11, supra). That is precisely this case. Thus, while the reasonableness inquiry is an objective one (Graham v Connor, supra, at 397; see also, People v Goetz, 68 NY2d 96), where, as here, the facts and circumstances fall even more compellingly within the template painted by Garner — a crime of force in actual progress against a person in a place of public transportation — the use of deadly force can be found to be reasonable and justifiable as a matter of law in a civil lawsuit context.

Furthermore, the Court’s holding today undermines the Legislature’s exceedingly plain policy on justification, expressed in the pertinent self-defense provision of the Penal Law, section 35.30:

"1. A police officer or a peace officer, in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he reasonably believes to have committed an offense * * * may use deadly physical force for such purposes only when he reasonably believes that:
"(a) The offense committed by such person was:
"(i) a felony or an attempt to commit a felony involving the use or attempted use or threatened imminent use of physical force against a person”.

That statute reflects, with Gamer, the public policy that the use of deadly force to apprehend a criminal in the actual commission of or escape from a violent felony is unquestionably lawful and reasonable. Plaintiff conceded as much by his own evidence and theory in the civil case and by his plea of guilty in the criminal case. I cannot imagine a more precise tracking of the words and commands of Penal Law § 35.30 than the actions taken by the officer on this subway platform.

The Court disregards the statute’s and Garner’s cogent relevancy by sidetracking the procedural context of the situation. Moreover, its characterization of the pertinent rule as a one-way proposition benefitting only criminal actors is puzzling. Garner, like this case, was a civil suit for damages sustained as a result of the alleged use of excessive force in apprehending a suspect. The United States Supreme Court plainly intended that its Fourth Amendment analysis for assessing the lawfulness of the use of deadly force should also be applied to the issue of reasonableness of the actions of the law enforcement officials and their municipal superiors (Ten nessee v Gamer, 471 US, at 22, supra). In now holding that the standard enunciated in Gamer applies only to the issue of the "arrestee’s Fourth Amendment rights” (majority mem, at 927), the Court wastes Gamer’s guidance. The anomaly inflicted is that "[t]he imposition of such liability, in addition to posing a crushing financial burden, might well discourage” law enforcement officers and their superiors from acting to promote the general welfare (O’Connor v City of New York, 58 NY2d 184, 191, rearg denied 59 NY2d 762). Tort law, after all, is intended to shape and conform conduct to reasonable patterns.

In sum, the application in this case of staple negligence nostrums of a procedural and substantive variety will result in inappropriate cases being universally pitched to juries, whose potentially excessive determinations are beyond this Court’s review powers on almost all issues. As foreseen in O’Connor v City of New York (supra), the devastating toll includes shifting the primary concern of law enforcement employees from ensuring the safety of the public to ensuring that they and their municipal employers are not exposed to staggering money judgments for, in effect, doing their jobs of crime prevention. The costs to society of such calculated indifference to innocent citizens in dire need are compounded by the payments of large judgments out of a diminishing public purse. This case guarantees that society will suffer the double albatross of both those costs. This plaintiff mugger may have been interrupted and prevented from stealing Sandusky’s wallet, but he ultimately makes crime pay by picking the public’s pocket for the big score of $4.3 million plus interest.

Chief Judge Kaye and Judges Simons, Hancock, Jr., and Smith concur; Judge Titone dissents in part and votes to dismiss the appeal in part and reverse in part in an opinion; Judge Bellacosa separately dissents in part and votes to dismiss the appeal in part and reverse in part in another opinion.

Order, insofar as it affirmed the judgment of Supreme Court, affirmed, with costs, in a memorandum. Appeal, insofar as taken from that portion of the Appellate Division order which affirmed the order of Supreme Court denying defendant’s postjudgment motion to vacate and set aside the verdict and judgment, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution. 
      
      . The appeal, insofar as it is taken from that portion of the Appellate Division order which affirmed the order of Supreme Court denying defendant’s postjudgment motion to vacate and set aside the verdict and judgment, should be dismissed for nonfinality.
     
      
      . Plaintiff’s second cause of action (for defendant’s negligent screening, training and supervision of its employees) and his third cause of action (for violation of his Fourth Amendment rights brought under 42 USC § 1983) were both dismissed at the close of plaintiff’s case.
     
      
       It is true, as the majority observes (majority mem, at 928), that, according to plaintiffs evidence, Officer Rodriguez might not have actually seen the mugging. Nonetheless, even plaintiff acknowledges that the officers arrived at the scene in time to hear the 72-year-old victim’s cries for help as well as the lookout’s warning and to see plaintiff and his cohort fleeing down a nearby staircase. Under any view of the facts, those observations are sufficient to support a reasonable belief by the officer that a violent crime had just occurred and that the perpetrators were about to escape.
     