285 A.D. 1153 | N.Y. App. Div. | 1955
In an action to recover damages for wrongful death, the appeal is from a judgment in favor of respondent dismissing the complaint on the merits at the close of appellant’s case. Judgment reversed on the law and new trial granted, with costs to appellant to abide the event. The proof was that a police officer of respondent interrupted a holdup in the back room of a store and, in returning the fire of the holdup men, who were within not more than about eight feet of him, he fired one bullet at one of them and five at the other. Appellant’s intestate, who was one of the victims of the holdup, was alongside the latter. Four of the officer’s bullets struck him, as a result of which he died. A prima facie case of negligence on the part of respondent, on the theory that the officer had not received sufficient and proper training in the use of small firearms, was established. Nolan, P. J., Wenzel, Schmidt and Murphy, JJ., concur; Beldock, J., dissents and votes to affirm, with the following memorandum: The complaint alleges two theories of liability: (1) That respondent knowingly retained in its employ a police officer, inadequately trained and inexperienced in the use of small firearms at close range; and (2) that the said police officer, observing the holdup while on the public sidewalk, rushed into the store with gun drawn and proceeded to shoot, thus unnecessarily creating a danger and hazard, and imperiling the life and safety of the intestate and other persons, who were being held up by three bandits; that, under these circumstances, the police officer could readily have waited until the bandits emerged from the store and avoided inflicting the injuries sustained by the intestate, resulting in his death. I agree with the majority that there is no liability on the second theory. However, I disagree that there may be liability on the first theory. At about 6:00 p.m. on December 13, 1949, police officer Rosen (on the force for at least nine years)