
    Estate of Joseph P. Finn et al., Respondents, v. City of New York, Appellant.
    Supreme Court, Appellate Term, First Department,
    December 6, 1973.
    
      Norman Redlioh, Corporation Counsel (Stanley Buchsbaum and Edmund B. Hennefeld of counsel), for appellant. Weinstein & Tashman (Sheldon J. Tashman of counsel), for respondents.
   Per Curiam.

This is an action by plaintiff to recover damages for psychic injury occasioned by the negligence of the defendant, City of New York, in failing to notify the plaintiff of her husband’s death for a period .of approximately one week after his demise. The facts delineated in the first paragraph of the dissent are fairly stated. There is no dispute that the deceased was taken via ambulance to the emergency room at Fordham Hospital and there pronounced “ dead on arrival.” The procedure to be observed by that hospital in such cases is as follows: After a doctor has declared that an individual was ‘ ‘ DOA ’ ’, a nurse and another witness, usually a New York City police officer, check the decedent’s property. If no police officer is present, a hospital regulation requires that the Police Department be notified of the death. The decedent’s property is itemized by the nurse and put in a brown envelope in the presence of the witness and if the decedent’s name is known, it is also noted on the envelope. If no police officer was present prior to this search, >a police officer would be called and if one was not available, a security officer of the hospital would be required to act as witness. In the latter contingency, the New York City Police Department would be notified by the hospital of the death as delineated above.

The officer present at the search, Walter Schwank, was a patrolman of the New York City Transit Authority Police Force and not an officer of the New York City Police Department. He accompanied the ambulance bearing decedent to the hospital and, as no New York City police officer was present, witnessed the search of decedent’s body by the nurse, a Ms. Sutton. It must be noted that the ambulance slip for the subject “call” clearly indicates that the responding officer, Schwank, was a member of the “ T.A. ” or Transit Authority Police Force. Patrolman Schwank, as Nurse Sutton engaged in the process of searching the decedent, enumerated in his log the items of personal property thereby disclosed. He did this in her presence and, in discharge of his office, gathered other pertinent information relating to the deceased including the name of the nurse. He was in uniform, which uniform contains a designation patch alerting observers to the fact that he was a Transit Authority Policeman.

"‘ The law is well settled that the surviving next of kin have a right to the immediate possession of the decedent’s body for preservation and burial and that damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body. (Darcy v. Presbyterian Hosp., 202 N. Y. 259; Foley v. Phelps, 1 App. Div. 551; Larson v. Chase, 47 Minn. 307; Ann. 17 ALR. 2d 770 et seq; see, also, Jackson Law of Cadavers [2d ed.], pp. 164-183).” (Lott v. State of New York, 32 Misc 2d 296, 297-298; see Weingast v. State of New York, 44 Misc 2d 824; Public Health Law, § 4200.) The afore-mentioned hospital regulation relating to notification of the New York City Police Department and the circumstances pertinent to the lack of such notification must be viewed in light of the right of the next of kin to the immediate possession of the decedent’s body. It is initially noted that the charge delivered by the court below did not permit the jury to find liability against the defendant on the ground that the New York City Police Department had negligently failed to locate the body of plaintiff’s husband.

The decedent, “ d o a ” at Fordham Hosptal on August 31, 1967, was identified as one Joseph Finn by virtue of the search of his personal effects conducted by Nurse Sutton which occurred at such time. This is not a ‘ ‘ John Doe ’ ’ type situation. Accordingly, the jury was presented with the question of whether the defendant was negligent in failing to notify the plaintiff of her husband’s death, and whether, because of such negligence, the body of her deceased husband was wrongfully withheld from her. The defendant’s argument that it owed no duty to plaintiff to notify her of the death of her husband is without merit in view of the legal authority cited above (see, also, Torres v. State of New York, 34 Misc 2d 488). Fordham Hospital, the city hospital wherein the identity of the decedent was ascertained, had adopted a standard of care reasonably calculated to insure effective observation of the duty owed by defendant to notify the decedent’s next of kin. This standard of care, embodied in the aforesaid regulation and its implementing procedure, required notification to the New York City Police Department. This standard of care was not observed. The dissent regards this nonobservance as excusable as a matter of law and, in .any event, as not being the proximate cause of the plaintiff’s injury. It may be observed that the plaintiff probably would have been promptly notified had the Transit Authority forwarded the aided card, filled out by transit officer Schwahk, to the New York City Police Department. However, the plaintiff might similarly have been expeditiously notified had Fordham Hospital reported the death to the New York City Police Department. It is well recognized that there may be more than one proximate cause of an accident and that where two parties by .their separate and independent acts of negligence furnish direct causes, of a single injury to another person, and it is not possible to determine in what proportion each contributed to the injury, either is responsible for the whole injury (1 Warren’s New York Negligence, § 5.09). The critical fact is that Fordham Hospital through its employee, Nurse Sutton, failed to observe its own regulation which required that a report of death in a “ DOA ” case be made ,to the New York City Police Department where no New York City police officer was .present. Proximate cause is always dependent upon the facts of a particular case. However, in defining proximate cause it may generally be said that an act or omission is the proximate cause of an injury if it was a substantial factor in bringing about tl, injmy, that is, if it had such an effect in producing the injury that reasonable men would regard it as the cause of the injury. On this record, it may not be concluded as a matter of law that the omission occasioned by Pordham Hospital’s failure to notify the New York City Police Department of the death of plaintiff’s husband was not a proximate cause of plaintiff’s injury.

Under the circumstances herein, a question of negligence was presented for the jury as to whether Pordham Hospital should have directly notified the New York City Police Department. Implicit in this factual question are the issues of whether there was a prudent exercise of discretion for the hospital’s nurse .to assume that notification to a Transit Authority patrolman fulfilled the hospital’s regulation requiring notification to the New York City Police Department and whether the nurse, assuming she believed the patrolman present to be a New York City police officer, was negligent in failing to perceive that he was a Transit Authority patrolman. Since there was sufficient evidence in the record to support the jury’s verdict on .the issue of liability as it relates to the aforesaid, the jury’s determination may not be disturbed.

However, the amount of the award, giving full consideration to all relevant factors, must be deemed excessive.

The judgment should be reversed and new trial ordered, limited to the issue of damages, Avithout costs, unless respondent within 10 days after service of a copy of the order entered hereon, with notice of entry, stipulates to reduce the recovery to $3,000, in which event judgment modified accordingly, and, as modified, affirmed Avithout costs.

Quinn, J.

(dissenting). When plaintiff’s late husband failed to return from work -within three or four hours of his habitual homecoming time of ¡6:30 p.m., on August 31, 1967, and she had no other word of him, plaintiff began a search, in aid of which, the next day, September 1st, she enlisted the help of the New York City Police Department. Tavo members of the New York City Police Department’s detective bureau aided her in her search; one from .the Missing Persons unit and one from the detective bureau’s office in the police precinct of her residence. Not until one week later, on September 8, 1967, did the search prove successful when the detective assigned to the search •from the Missing Persons unit personally brought plaintiff word that her husband had been pronounced dead on arrival at the emergency room of Fordham Hospital on the evening of August 31, 1967 and his remains lay at the Bronx morgue. For the mental anguish and worry to which plaintiff was subjected by the prolonged uncertainty, while her one week’s search went on, she has recovered a verdict of $5,000 against the City of New York for damages for psychic injury due to negligence in not helping her to conclude the search ¡sooner.

Plaintiff’s sad plight makes such a strong appeal to natural sympathy it becomes a most unhappy and unpleasant task to venture the opinion that the applicable law and the evidence, viewed most favorably from plaintiff’s standpoint, require reversal and dismissal of the complaint.

The evidence is clear, and there is no claim by plaintiff to the contrary, that the City ,of New York at .all times kept the body of the deceased with the respectful care due human remains and was ready, willing and anxious to surrender those remains to la righful claimant, as indeed it did to plaintiff immediately upon her identification as the widow. In the absence of a prior demand there could be no withholding of the remains, unlawfully, negligently or otherwise.

The general duty of the New York City Police Departmeut to aid persons in a search for missing relatives or friends can hardly be regarded as greater or different from the general duty to protect threatened persons from becoming victims of crime; yet a failure to afford forseeably needed protection to an endangered individual has been held to give rise to no right of action against the City of New York to the person so victimized (Riss v. City of New York, 22 N Y 2d 579). The general duty of the New York City Police Department to aid in a search for missing persons can hardly be regarded as greater or different from the general duty to aid persons involved in accidents in obtaining data on the identity of other active participants, potentially liable as tort-feasors; yet failure .of ia police officer, on the scene of a motor vehicle accident, to keep .his express promise to an injured person to obtain the name, license or motor registration number of the operator of an automobile in collision with a motorcycle, has been held to give rise to no right of action against .the City of New York to the injured motorcycle driver thereby despoiled of ¡any hope of recovery for his injuries through lack of essential identifying information his own obviously disabled condition prevented him from obtaining (Falco v. City of New York, 34 AD 2d 673, affd. 29 N Y 2d 918).

But even if the instant case can be distinguished from the above-cited authorities, and numerous forerunners on which they are based, the delayed success in aiding plaintiff’s search cannot be laid to negligence by the Police Department. Nobody suggests there was any lack of diligence by the police in making day by day inquiries in a number of directions, even outside the City of New York, and making day by day reports to plaintiff on the progress of the efforts of the police to help her in her search. The very worst that can be said is that the detective in .the Missing Persons unit on the basis of his long experience made a nonculpable mistake of judgment, relying heavily on the far from unreasonable likelihood, and fond hope, that the plaintiff’s late husband was alive, suffering a defect of memory or consciousness, rather than dead, so that he conducted his daily inquiries more zealously along avenues of information normally leading to the whereabouts of living persons. Not until almost a week had passed did he concentrate on sources, which hindsight now suggests he might better have started with, on the grimmer theory that plaintiff’s husband was dead and the daily routine system of reported deaths, he had been faithfully scanning, had somehow broken down in this case.

An honest error of judgment does not give rise to a cause of action in negligence, especially where the judgment in question rests on theory and opinion (65 C. J. 8., Negligence, § 2 [8], p. 472). “ In the light of the wisdom that follows the event, we can see that the outcome might have been better if they had done something else. That is not enough ”. (Wolosynowski v. New York Cent. R.R. Co., 254 N. Y. 206, 209.) “ Liability for negligence needs a firmer foundation than mere error of judgment.” {Kawacs v. Delaware Lackawanna <& Western R. R. Co., 259 N. Y. 166, 169, citing Wolosynowski v. New York Cent. R.R. Co., supra.) The police action in this case fits exactly the proposition that “if one, assuming the responsibility as an expert, possesses a knowledge of the facts and circumstances connected with the duty he is about to perform, and, bringing to bear all his professional experience and skill, weighs those facts and circumstances, and decides upon a course of action which he faithfully attempts to carry out, then want of success, if due to such course of action, would be due to error of judgment, and not to negligence. ’ ’ (Luka v. Lowrie, 171 Mich. 122, 132.)

The claim of the plaintiff, filed with the Comptroller of the City of New York, specifies an ‘ ‘ Action for psychic injury against the City of New York more particularly the Department of Hospitals and Police Department in negligently failing to locate the body of deceased Joseph Patrick Finn after notification of his being missing.” The proof, of course, belies the claim of negligent failure to locate the body of the deceased and tends only towards establishing a failure to locate the body of the deceased within a reasonable time (i.e., some unspecified, conjectural time less than seven days) after receiving the appeal for aid in searching for him as a missing person.

The involvement of the Department of Hospitals in this unfortunate contretemps springs from the excusable mistake or error of judgment of a nurse at the emergency room of Fordham Hospital in regarding the uniformed police officer, accompanying the body of the deceased, as constituting the presence of a police officer such as, under the rules and regulations of the hospital, relieved her of independently notifying the New York City Police Department of the arrival of a dead body at the emergency room. The uniformed police officer who came to the emergency room of "Fordham Hospital in the ambulance, bearing the body of the deceased, was a police officer of the New York City Transit Authority, a body corporate, separate and distinct from the City of New York. His identity as such was to be distinguished, by a keen observer intent upon such nice details, from that of a uniformed officer of the Police Department of the City of New York, by a three-inch, round orange patch on the left sleeve, ‘ ‘ with a little train on the patch. ’ ’ This uniformed police officer, accompanying the body of the deceased, assiduously noted down in writing all identifying information which the nurse furnished him at his request, in the course of her search of the body of the deceased. "Whether she mistakenly took him to be a uniformed police officer of the Police Department of the City of New York, or recognizing him as a police officer of the Transit Authority, assumed that he could be fully trusted to officially report the death in like manner and through the same channels as a police officer of the New York City Police Department, it can hardly be .said that any misapprehension she may have been under, in either regard, arose from negligence, i.e., a failure to use that degree of care which a reasonably prudent person in her situation would have used to avoid foreseeable injury to another. “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension”. (Palsgraf v. Long Is. R.R. Co., 248 N. Y. 339, 344.)

The only statutory duty laid on anybody to report the death (Public Health Law, § 4140; Administrative Code of City of New York, §§ 878-1.0; 878-2.0) was undoubtedly fully discharged within 24 hours, as appears from that part of the records of the New York City Department of Health, in evidence, entitled “Medical Certificate of Death”, dated September 1, 1973, over the signature of the Assistant Medical Examiner.

The nurse’s duty to make an independent report of bodies of dead persons arriving at the emergency room unaccompanied by a police officer, was owed to the hospital and perhaps to the Police Department. There is no suggestion that she had any duty to seek out or furnish such information to the relatives of such deceased persons. Unless she were clairvoyant she could scarcely be charged with the responsibility to foresee that even though the uniformed police officer who in her presence, took down all necessary information relevant to the identity of the deceased person would, indeed, faithfully relay all such information by phone and by written record to his designated offices and superiors for transmittal to the New York City Police Department, in accordance with invariable practices under the rules and regulations of the Transit Authority, yet somehow the record-keeping and record-relaying processes and facilities of the Transit Authority would strangely and unaccountably fail, in this one instance, to follow standard reporting practices; so that the lack of such report would lead a detective of the Missing Persons unit in aiding plaintiff’s search for her husband, to initially discount the likelihood of death and proceeding on the theory that plaintiff’s husband was still alive, direct his inquiries principally to the information desks of city hospitals for live patients admitted, rather than to the emergency rooms, as he eventually did, for bodies of persons dead on arrival, and that plaintiff would thereby suffer five or six days ’ prolongation of her anxiety and uncertainty over the whereabouts and condition of her husband.

The direct, proximate cause of plaintiff’s failure to receive an earlier report of her husband’s death by sudden heart failure, while a passenger on the facilities of the Transit Authority, was not the emergency room nurse’s nonfeasance resulting from failure to distinguish the uniformed Transit Authority policeman from his all but identical uniformed counterpart on the New York City Police force, or her failure to distrust the eventual effectiveness of his apparent official activity and seeming diligence to take down all necessary information for police purposes, including standard reporting procedures. The direct proximate cause of the delay in plaintiff becoming apprised of her husband’s death was either the failure to inquire at the Medical Examiner’s office or the failure of the records office of the Transit Authority, in accordance with regular procedures, under established practices and its own rules and regulations, to transmit its timely received report of death to the New York City Police Department where it would have come under the daily record-searching eye of the detective from the Missing Persons unit, within 24 hours-after the event, and saved plaintiff the needless emotional strain on her nervous system which the five or six days ’ extra wait entailed.

Defendant’s motion at the close of all the evidence to dismiss the complaint for failure to prove actionable negligence should have been granted.

Fixe, J. P., and Lupiaxo, J., concur in Per Curiam opinion; Qttixx, j., dissents in memorandum.

Judgment reversed, etc.  