New York State Court of Claims

New York State Court of Claims

JOYNER v. THE STATE OF NEW YORK, #2001-013-518, Claim No. 88536


Synopsis


SUNY hospital officials' actions in intentionally misleading the mother of a deceased child, making her believe that no organs would be removed from her child's body during autopsy, did not give rise to a cause of action for negligent infliction of emotional distress because they did not involve a violation of a ministerial duty. While the actions might have supported a cause of action for intentional infliction of emotional distress, there can be no recovery against the State on such claims as a matter of public policy. Claim dismissed following trial.

Case Information

UID:
2001-013-518
Claimant(s):
LISA GODBOLD JOYNER, Individually and as Mother of Earl Joyner, an Infant The Court has sua sponte amended the caption to indicate the only properly named defendant.
Claimant short name:
JOYNER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the caption to indicate the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
88536
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
WILLIAM F. LYNN, ESQ.THOMAS F. SHANNON, ESQ., Of Counsel
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: PATRICIA M. BORDONARO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 31, 2001
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On October 19, 1993, Earl Joyner, the two-year-old son of Claimant Lisa Godbold Joyner, choked on an apple while in the care of a baby-sitter and was admitted to the SUNY Health Science Center (SUNY) in Syracuse, New York. By the time he arrived at the hospital, he had suffered extensive brain damage due to loss of oxygen and he never regained consciousness. The child was placed on life support, but that was removed approximately 26 hours later when he was pronounced brain dead. He expired immediately.

Earl's physician, Dr. William P. Hannan, discussed both organ donation and autopsy with the family. Claimant was opposed to both, particularly expressing her concerns about recent news reports that the Office of the Onondaga County Medical Examiner (ME) had improperly removed children's body parts during autopsy procedures. Dr. Hannan explained that because the accidental death of a child was involved, an autopsy was required by law. In light of her concerns, however, Dr. Hannan arranged for the procedure to be performed at SUNY. Claimant signed a written consent for the procedure to be performed at the hospital, and the consent (Exhibit 4) contained the handwritten notation "no limitations."

John Falitico, Technical Director of Autopsy Services at SUNY, then reviewed the medical records relating to Earl Joyner's death and determined that there was a "potential medical legal implication" which required him to refer the matter to the Medical Examiner's Office. Apparently he was unaware that Dr. Hannan had previously contacted the Medical Examiner and obtained permission for the autopsy to be performed at SUNY. Falitico spoke with Claimant by telephone and advised her that the autopsy could not be performed at SUNY. During this conversation, which lasted over an hour, Claimant again stressed her reservations about the Medical Examiners's Office and her concern that body parts might be removed. Eventually, however, she agreed to allow the autopsy to be performed by the Medical Examiner, as long as Falitico himself was present. (Details of the conversation are provided below.) No new consent form was executed.

During the autopsy the child's brain was removed, and it was never returned to the body. Falitico called Claimant after the procedure was completed to report that the body was being released for burial, but he did not tell her that the brain had been removed and retained. Approximately one month later, after Claimant read yet another newspaper article about the Medical Examiner, she acted on a "gut feeling" and called that official herself. It was at this point that she learned, for the first time, that her son's body had been buried without its brain. She commenced this action to recover for the emotional distress she suffered as a result of the State's actions.

Applicable Law: Infliction of Emotional Distress

It is well-settled that, in connection with acts that constitute official conduct, public policy prohibits an action against the State, or its subdivisions, for intentional infliction of emotional distress (
see, e.g., Brown v State of New York,125 AD2d 750, lv dismissed 70 NY2d 747; Wheeler v State of New York, 104 AD2d 496; DeLesline v State of New York, 91 AD2d 785, lv denied 58 NY2d 610). On the other hand, in certain situations, liability may be imposed on the State, as on other defendants, for the negligent infliction of emotional distress (Johnson v State of New York, 37 NY2d 378).
In order to prove a cause of action for negligent infliction of emotional distress, the Court of Appeals recently held that the injured party must prove: (1) that the negligence on the part of the governmental official was ministerial in nature, as discretionary actions are immune from liability; (2) that the negligence was tortious,
i.e., that it would give rise to a cause of action if the actor were a private person; and (3) that the negligence breached a duty that was owed directly to the injured party (Lauer v City of New York, 95 NY2d 95, 99-100). In that case, a medical examiner's office initially listed the cause of death of a young child as "blunt injuries," which triggered a criminal investigation focusing on the father. Within a month, a second analysis of the body revealed that the cause had been a ruptured brain aneurysm, but the Medical Examiner failed to change the death certificate or to notify authorities. The investigation of the father continued for 17 months, until the revised cause of death was revealed in connection with a newspaper inquiry into the matter. The father's action was dismissed on the ground that there was no breach of a duty owed directly to him: the Medical Examiner's duty to communicate accurate information to authorities was one owed to the public in general, not specifically to those individuals who become criminal suspects, and there was no "special relationship" between the Medical Examiner and the father.
In the instant claim, the interactions between John Falitico and Claimant would be sufficient to create such a "special relationship." Present in these interactions were (1) an assumption by the State official of an affirmative duty to act on behalf of the injured party; (2) knowledge on the part of the official that inaction could lead to harm; (3) some form of direct contact between State and the injured party; and (4) that party's justifiable reliance on the affirmative undertaking (
Cuffy v City of New York, 69 NY2d 255, 260).
The issues that must be determined in this instance, therefore, are the precise nature of the duty owed to Claimant, whether the duty was breached, and whether the breach was tortious. Where there is no breach of duty, there can be no liability, even if genuine emotional distress results (
Stonecipher v Bossuot-Lundy Funeral Home, 238 AD2d 946), and not all wrongful conduct rises to the level of tortious behavior for which recovery may be had, particularly when the only injury is emotional distress in the absence of any physical harm (Kennedy v McKesson Co., 58 NY2d 500). Finally, because the Defendant in this action is the State of New York, it must be determined whether the actions complained of would give rise to a cause of action for intentional infliction of emotional distress or for negligent infliction of emotional distress, because the State cannot be liable for the former.
Nature of the Duty Owed

The autopsy of Earl Joyner's body was not performed illegally. In fact, despite the efforts expended to obtain her consent, it was not necessary that Claimant consent to the procedure, because it was ordered and performed by the Medical Examiner. Hospitals must obtain the consent of a decedent's next of kin in order to direct that an autopsy be performed (Public Health Law §4214), but there is no such requirement when the autopsy is performed by or at the direction of a Medical Examiner (Public Health Law §4210;
Banks v United Hosp., 275 AD2d 623; Harris-Cunningham v Medical Examiner of N.Y. County, 261 AD2d 285). The Medical Examiner's authority to investigate, among others, any deaths that occur in a "suspicious, unusual or unexplained manner" (County Law §673) includes the authority to conduct an autopsy in order to determine the cause of death, or for other specified purposes.
Removal and retention of the child's brain was also lawful, even in light of the mother's objections. In connection with authorized autopsies, the Medical Examiner has the "authority to remove, retain and transport or send, for the purpose of the examination, any tissue or organs and any portable object" (County Law §674[3][a];
see also, County Law §673; Hendriksen v Roosevelt Hospital, 297 F Supp 1142, 1144 [SDNY 1969]). If the autopsy had been conducted by the hospital, as was originally contemplated, Claimant would have had the right to refuse consent for the retention of body parts (Public Health Law §4210[3] [next-of-kin "shall specify the purpose and extent of the dissection so authorized"]; Hassard v Lehane, 143 App Div 424, 427-428 [consent to the retention of parts of the body (is necessary), even in the presence of consent to the autopsy itself]). Once the matter was turned over to the Medical Examiner, however, there was no such restriction.
Claimant's effort to base liability on Falitico's decision to refer the matter to the Medical Examiner cannot succeed. There is no dispute that his position carried with it the authority to determine when a death should be reported to the Medical Examiner. At one point, Falitico testified that while he did not question the apparent cause of death (asphyxiation on a piece of apple), he made the decision to refer the matter to the Medical Examiner after reading the clinical summary of Earl Joyner's death and determining that "there was evidence to the fact that there could be a potential medical legal implication here" (Transcript - p. 14). Once he reached that conclusion, Falitico stated, he was required by law to contact the Medical Examiner's Office.[1]
In later testimony, Falitico indicated that he made the referral because such an action was absolutely required by the hospital's own protocols in connection with any accidental death of a child (Transcript - p. 35, pp. 58-59).
To the extent that Falitico's action was based upon an analysis of the circumstances of the death and an independent determination that there were "potential medical legal implications," such a determination would, by its very nature, be a discretionary act, one involving the exercise of reasoned judgment, and State officials are not liable when harm results from such acts (
Lauer v City of New York, 95 NY2d 95, supra at 99, citing Tango v Tulevech, 61 NY2d 34, 40-41). If, as his later testimony suggests, Falitico was simply following an absolute requirement contained in the hospital protocols (i.e., if those protocols directed that all accidental deaths of young children be reported to the Medical Examiner), his action in referring the matter was ministerial -- an action "requiring adherence to a governing rule, with a compulsory result" (id.), but there was no breach of that ministerial duty.
It is certainly true, however, that Falitico breached the duty to carry out the responsibilities of his office with due care (a duty that includes honesty in dealing with members of the public). In the normal course, this is a duty owed to the general public, not to any one citizen in particular, and thus it could not give rise to a right of recovery when the duty is breached. For the reasons discussed above, however, Falitico's actions, and Claimant's reliance on his official assurances, created a special relationship between these two individuals. In addition, I find that Falitico voluntarily assumed a particular duty, owed directly to Claimant, when he promised that no parts of her son's body would be permanently removed and that the body would be returned intact for burial. "[E]ven when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care"
(Parvi v City of Kingston, 41 NY2d 553, 559; see also, Walsh v Town of Cheektowaga, 237 AD2d 947; Glanzer v Shepard, 233 NY 236, 239; Rekemeyer v Cerone, 252 AD2d 22 [police officer informed a mother that her son's body had been taken to the morgue when, in fact, it was still at the scene of the accident]).
It is evident that Claimant believed such a promise had been made and that she altered her behavior because of her belief both in the promise and, later, her belief that it had been fulfilled. Her account of the relevant portions of the October 19th conversation with Falitico is as follows:
And I told him, I said, please, I don't want -- I don't want my child down there at the ME's office at all. And he said, well, he went on to say that he knew the medical examiner and the things they said in the paper that was going on down there didn't happen, and that he would go down there to make sure everything was -- went properly, nothing was -- no organs or anything was kept out, and he assured me that he would take care of it and make sure that everything was done the way I wanted it.

* * *
I told him that I did not want them to take any body parts out and keep them whatsoever at all, and he told me, don't worry, he was going to go down there; that he doesn't usually go down there, but he would go down there for me because he understood what I was going through, and to make me feel better, he would go down there.
* * *
...[H]e was trying to allay my fears about the things that were going on down there, and he guaranteed me, he even said he stakes his reputation on it that those things does not happen, that they're not stealing body parts.

(Transcript, 93-94.)
Claimant's subsequent actions and statements when she later discovered that her son's brain had been removed and retained are also entirely consistent with a belief that Falitico had promised her this would not occur. She testified that on November 12th, several weeks after her son was buried, she saw yet another newspaper article, this time about a child's reproductive organ being removed from its body. Acting on a "gut feeling," she called the Medical Examiner's Office from the school where she was working as a nurse. After asking and being assured by the Medical Examiner that everything had "gone okay" with the autopsy on her son's body, she requested a copy of any reports or papers, only to be told that the final report was not complete since they were still waiting for the swelling of the brain to go down.
And I asked him, I said, what are you telling me? I said, are you telling me that I buried my child two weeks ago without his brain? And he said, yeah, you didn't know? And I said, of course, I didn't know, and I just fell out in the middle of the office, and the principal came and he picked me up, and he told me to go in his office to continue the phone call.

(Transcript, 95). After notifying family members about what had happened, Claimant called Falitico. At trial, she described this conversation as follows:
...I said, why did you allow him to do that? You were supposed to be down there with him making sure nothing went wrong and nothing was tooken [sic] out of my child and kept. And he was like, what are you talking about? I said, he was buried without his brain, and he was like, well how do you know that? I said, Mitchell [the Medical Examiner] told me himself, and he was like, well, I really don't know what's going on, let me get back to you.

(Transcript, p. 96). Claimant could not recall if Falitico did call her back but believed he had not done so, "because when I talked to him, I was really rude to him...." According to Falitico, Claimant was "very upset" when she called him (Transcript, p. 44) and as a result of the conversation with her, he informed his superiors at SUNY about the events (Transcript, p. 49). There is no reason to doubt Claimant's very credible testimony that she believed Falitico had promised to be present at the autopsy in order to make sure that no organs were removed from her son's body.
Although he denied that he made any express promise to Claimant that no tissue or organs would be permanently removed from the body (Transcript, p. 70), Falitico's testimony virtually confirmed that there was, at the very least, an implicit promise to that effect. He acknowledged that he was aware of the newspaper articles reporting that body parts were missing after autopsies on young children at the Medical Examiner's Office, and he further stated that he was aware it was concern over these published reports that caused Claimant to object so strenuously to her son's body being transferred from SUNY (Transcript - p. 16). Falitico agreed, at Claimant's request, to be present during the autopsy (Transcript - pp. 19, 22) and realized that the fact that he was going to be present was "the only reason she agreed" to the body's transfer to the Medical Examiner's Office (Transcript - p. 20). He confirmed that his attendance at the autopsy was unusual and that he had to get permission from the Medical Examiner to be present. He went, he stated, because he and Claimant had developed "a good rapport with each other" and she wanted him present because of her concerns about the publicity (Transcript - pp. 38, 69). In response to a question from the Court, Falitico acknowledged that Claimant "was relying on your presence there to ensure the fact that whatever she may have read regarding what was going on in the medical examiner's office would not occur" (Transcript, pp. 70-71). The sequence of events and the testimony of both participants to the conversation establish that there was an understanding between Claimant and Falitico that he would be present during the autopsy performed on her son's body at the Medical Examiner's Office, that he would make sure that no body parts were removed and retained, and that he would see to it that the body would be intact when it was returned for burial. This promise was not kept. In fact, Falitico was undoubtedly aware from the beginning that he had no power to control whether body parts were removed. Once a death investigation is taken over by the Medical Examiner, whether or not an autopsy is conducted and the manner in which it is conducted is entirely up to that official.[2]
Falitico was correct, therefore, when he testified that the question of whether organs would be removed or retained was "out of his hands" (Transcript - p. 71). But he breached the duty he owed to Claimant when he did not convey this information to her (Transcript - p. 74) and, further, when he encouraged her to rely on his representation that he could prevent the permanent removal of body parts by his presence at the autopsy.
If the Medical Examiner had elected to keep the body intact, the fact that there was no basis for Falitico's promise would be of no moment. The brain was removed, however, and Falitico was fully aware of this. He was, in fact, the person who actually removed the brain from the body of Claimant's son and placed it in a special solution, knowing that it had to be kept there for up to two weeks to permit dissection and microscopic examination and, thus, that it would be left behind at the Medical Examiner's Office (Transcript - pp. 30, 32, 38, 43, 54). At that point, in view of his duty of due care and his earlier specific promise to the child's mother, he had a further obligation to inform her truthfully about what had occurred. He did not do so.

Following completion of the autopsy, Falitico called Claimant, as she had requested him to do. He testified that he told her "everything was all right" (Transcript - p. 43) and "everything was in order" (Transcript - p. 46) when informing her that the body was being released to the funeral home. These comments, according to Falitico, were meant to convey that the autopsy had been performed with dignity and respect (Transcript - p. 73). That interpretation simply does not square with his earlier promise or with Claimant's clearly and repeatedly expressed concern about published reports that body parts were removed during autopsies performed at the Medical Examiner's Office. These misleading comments were not made inadvertently or by oversight, as his own testimony establishes that he never intended to inform Claimant about the removal of her son's brain. When asked at trial if he told Claimant that the brain was missing from the body, he responded:

"No. Why would I say that?" ... "I would never tell a family member about the details to the autopsy.... Why would I mention the brain?"

(Transcript - p. 38). Falitico did state that he would provide such details if the family asked for them (Transcript - p. 56) and it is undisputed that Claimant did not ask for additional specific information. This does not excuse his failure to report the situation to her honestly, however, because his earlier promise would have removed the need for Claimant to ask for specific, disturbing details. She was relying on his assurance that everything was "all right" and "in order" to mean that all was as he had promised it would be.
In addition to the natural distress Claimant experienced because of her son's death and the necessity for an autopsy, she would undoubtedly have been even more upset if Falitico had been fully honest with her from the start, telling her that the transfer to the Medical Examiner's Office and the autopsy would be accomplished with or without her consent; that in all likelihood the brain and possibly other organs would be permanently removed from the body; and that no one at SUNY, including Falitico, had any power or authority to prevent these things from happening. The distress caused by such communication would not have been actionable, however, because there would have been no breach of duty. Rather, Falitico would have been fulfilling his duty to deal honestly and fairly with members of the public while carrying out the functions of his office.

Falitico chose a different course of action, however. He chose to mislead Claimant by promising that he would personally be present at the autopsy and see to it that no organs were permanently removed. He knew at the time of the promise that he did not have the power to assure this outcome, and he subsequently knew that a vital organ had been permanently removed. At that point, he further misled Claimant by, in effect, assuring her that her son's intact body was being returned to her for burial.

In summary, by misleading Claimant about his power to guarantee the integrity of her son's body and about what occurred during the autopsy, Falitico breached the duty of due care that he owed directly to Claimant because of the special relationship their interactions had created. He further breached the particular duty that he voluntarily assumed when he promised that he would make sure the body of Claimant's son remained intact and later caused her to believe that he had kept that promise. Although there was no proof at trial that Claimant would have had a legal remedy that she could have pursued to make sure that her son's body would be buried with its brain, by depriving her of accurate knowledge, Falitico deprived her of any opportunity to try to change the course of events.

Whether the Breach of Duty Gives Rise to a Cause of Action for
Negligent or Intentional Infliction of Emotional Distress

It is necessary to determine whether the events described above give rise to a cause of action for either negligent infliction of emotional distress or intentional infliction of emotional distress, or both. In most instances, it is not necessary to make a fine distinction between intentional and negligent conduct in determining whether a defendant may be liable for the infliction of emotional harm, and as a result, there is little authority on this point. Because, however, public policy permits liability to be imposed on the State only for the negligent infliction of emotional distress (
Brown v State of New York, 125 AD2d 750, lv dismissed 70 NY2d 747, supra), such a distinction must be made here.
At first blush, the rule allowing injured parties to recover for what appears to be the "less serious" of the two torts may be seen as rather illogical and perhaps unfair. The distinction is perhaps best viewed, however, as reflecting another, more fundamental distinction relating to State liability: the distinction between discretionary or quasi-judicial actions, for which the State is immune from liability, and ministerial actions, for which the State can be liable if they are negligently performed.

The reason that sovereign immunity has been retained with respect to the discretionary, quasi-judicial acts of governmental employees is to permit them to act freely, in accordance with their best judgment, even if, in retrospect, they may have made a wrong or harmful decision.
Whether absolute or qualified, this immunity reflects a value judgment that -- despite injury to a member of the public -- the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.

(Haddock v City of New York, 75 NY2d 478, 484; see also, Kenavan v City of New York, 70 NY2d 558, 569 [liability will not be imposed for conduct "that, in retrospect show[s] poor judgment, but judgment nonetheless"]).
Although there has been little discussion of the public policy reasons for protecting the State from liability for intentional infliction of emotional distress, it appears that there are similar reasons for the rule. "'[T]he malicious instigation of official action does not give rise to prima facie tort liability' [citation omitted] or intentional infliction of mental distress... [because] malicious intent is ignored as a matter of public policy" (
Van Buskirk v Bleiler, 46 AD2d 707, 708 cited in Brown v State of New York, 125 AD2d 750, supra at 752; see also, Santangelo v State of New York, 101 AD2d 20, 23; LaBelle v County of St. Lawrence, 85 AD2d 759; Sgambati v State of New York, Ct Cl, Feb. 27, 2001 [Claim No. 90120 - Motion No. M-62421] Patti, J. [#2001-013-002][3] ["The interests of the public are generally best served when public officials do not have to fear potential tort liability for emotional distress they may cause while doing their jobs."]). Whatever the reason, the rule is well-established, and Claimant cannot recover if the actions of Falitico may give rise to a cause of action for intentional infliction of emotional distress but do not constitute the tort of negligent infliction of emotional distress.
To recover for intentional infliction of emotional distress, the injured party must prove: "(i) extreme and outrageous conduct" on the part of defendant; "(ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress" suffered by the plaintiff/claimant (
Howell v New York Post Co., 81 NY2d 115, 121). The question of whether Claimant's emotional distress at learning of Falitico's deception would qualify as "severe" will be set aside for the moment, as there was no proof of damages at this trial. Assuming, arguendo, that that element could be satisfied, there is an undisputed causal connection between Falitico's course of conduct and the injury Claimant suffered upon learning, after the fact, that her child's body had been buried without its brain and that she had been deceived by a public official in whom she had placed her trust.
With respect to the question of intent, I take as a starting point that Falitico acted deliberately and intentionally in misleading Claimant by promising something which was beyond his power to effect and, later, by causing her to believe that he had fulfilled that promise. Certainly his actions were not inadvertent or carried out by mistake. On the other hand, there is nothing to suggest that he consciously intended to harm Claimant or to cause her additional distress beyond that she already experienced because of her son's death and because an autopsy was required. It is most likely, in fact, that Falitico embarked on his deceptive course of action in order to avoid having Claimant learn the truth of the situation and thus become even more upset than she already was. It remains open to question whether his motivation was a genuine wish to lessen Claimant's emotional burden or possibly a more selfish desire to avoid having to deal with her additional upset if she were told the truth. In any event, while Falitico deliberately undertook to mislead Claimant, there is nothing to suggest that he intended the deception to be uncovered and to harm her in the fashion that it did. Nevertheless, while Falitico can probably be acquitted of a conscious intention of causing Claimant any additional emotional distress, he certainly disregarded a substantial probability that she would suffer additional, severe emotional distress if the deception came to light.

Traditionally, the first element is met only by conduct 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" (
Murphy v American Home Products Corp., 58 NY2d 293, 303, quoting Restatement of Torts, Second, §46 [1], comment d; Fischer v Maloney, 43 NY2d 553, 557). The purpose of this requirement is to "filter out trivial complaints and assure that the claim of severe emotional distress is genuine" (Roach v Stern, 252 AD2d 488, 491). Falitico's actions are certainly not of the violent and directly cruel nature typically found in these cases (see, e.g., id [publicly handling and making crude remarks about a semi-celebrity's cremated remains]; Stram v Farrell, 223 AD2d 260 [deliberate campaign of harassment including screaming vile obscenities at plaintiff and his young daughters and threats of harm, including sexual threats directed at plaintiff's daughters]). On the other hand, for a public official to deliberately deceive and mislead a citizen, particularly when that citizen is a parent whose child has tragically died, and the deception involves the sanctity of her child's body, the matter is certainly not trivial, and is, in my opinion, intolerable. It is not necessary for me to decide if the actions here rise to the extreme level of outrageousness necessary to successfully prove the cause of action (or, indeed, to determine if Claimant's injuries were sufficiently severe). Even if all elements were proven beyond dispute, there could be no recovery from the State, since his acts clearly fall within the performance of his public duty (Brown v State of New York, 125 AD2d 750, lv dismissed 70 NY2d 747, supra).
Liability on the part of the State for the negligent infliction of emotional distress is limited to exceptional circumstances in which the emotional injury is a direct, rather than a consequential, result of an official's negligent act (
Kennedy v McKesson Co., 58 NY2d 500, supra at 506) and where there are factors creating a high likelihood that the claim is not spurious or feigned (Lando v State of New York, 39 NY2d 803).[4] As noted above, in order to prove such a cause of action against a governmental entity, it must be established (1) that the negligence on the part of the governmental official was ministerial in nature, as opposed to discretionary actions which are immune from liability; (2) that the negligence would give rise to a cause of action if the actor were a private person; and 3) that the negligence breached a duty that was owed directly to the injured party (Lauer v City of New York, 95 NY2d 95, 99-100, supra).
I am unable to find that the wrongdoing in this instance was negligent or that it involved a ministerial duty. A review of the cases in which recovery has been permitted for this type of harm reveals that, where recovery has been allowed, the defendant's wrongful acts fit the traditional definitions of negligence -- a failure to perceive a substantial and unjustifiable risk of harm -- and also that they constitute a breach of non-discretionary, ministerial duties (
see, e.g., Lando v State of New York, 39 NY2d 803, supra [failing to conduct a diligent search for missing patient of State hospital]; Johnson v State of New York, 37 NY2d 378, supra [mistakenly notifying a woman that her mother had died and sending the corpse of a stranger to her for burial]; Battalla v State of New York, 10 NY2d 237 [failing to secure and properly lock ski lift belt]; Perry-Rogers v Obasaju, 282 AD2d 231 [mistakenly implanting embryo produced by in vitro fertilization in a woman other than the mother]; Rivera v Wyckoff Heights Hosp., 184 AD2d 558 [mistakenly informing parents that newborn child was alive when it had died]; Smith v St. Joseph's Hosp., 210 AD2d 36 [failing to notify a wife of her husband's hospitalization and subsequent death]; Topor v State of New York, 176 Misc 2d 177 [failing to repair holes in the wall surrounding a shower area]; Rotondo v Reeves, 153 Misc 2d 769 [coroner mistakenly identifying pet rabbit's remains as those of a child]; Bell v State of New York, 140 Misc 2d 778 [notifying claimant that he had passed State bar exam when he had not]; Jenkins v State of New York, 119 Misc 2d 144 [mistakenly notifying parents that their son had died and sending the body of a stranger to them for burial]).
Falitico's breach of the duties he owed Claimant was of a different nature altogether, and I hold that his actions cannot provide the basis of a cause of action for negligent infliction of emotional distress because, quite simply, there was nothing negligent in his behavior and the duties were not ministerial in nature. He had full, discretionary power to determine the manner in which he would carry out the functions of his office, and he made a poorly reasoned judgment decision when he voluntarily chose to promise her something he could not deliver and, subsequently, to deceive her about the result of the autopsy.

Because public policy prohibits the imposition of liability on the State for intentional infliction of emotional distress, and because the facts giving rise to this claim do not make out a cause of action for negligent infliction of emotional distress, the Chief Clerk is directed to enter judgment in favor of Defendant, dismissing the claim. This result, while required by law and based upon sound public policy considerations, should not be viewed in any way as minimizing either the gravity of the wrong that was carried out or the reasonableness and genuineness of Claimant's distress as a result of that wrong. It simply should not have happened.

The Chief Clerk of the Court is directed to enter judgment dismissing the claim.

All motions not heretofore ruled upon are now denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.


December 31, 2001
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1]Neither party has specifically identified the source of this legal requirement, although its existence is not disputed. There are a number of instances in which, by statute or regulation, deaths with potential legal implications must be reported to the Medical Examiner (see, e.g., Social Services Law §418 [suspicious deaths of children]; 9 NYCRR 7651.30 [deaths of inmates]; Westchester County Administrative Law §273.151, §273.141 [unexplained deaths], referenced in Banks v United Hosp., 275 AD2d 623, supra). In addition, as noted above, the Medical Examiner or Coroner has jurisdiction to investigate any deaths that occur in a "suspicious, unusual or unexplained manner" (County Law §673).
  2. [2]The only exception to this statement is the restrictions imposed by Public Health Law §4210-c, which requires that certain steps be taken when a coroner or medical examiner determines that an autopsy is necessary despite the objection of a surviving relative or friend that such a procedure is contrary to the religious beliefs of the deceased (see, Schwartz v State of New York, 162 Misc 2d 313). This exception is not relevant to the instant claim.
  3. [3]This, and other Court of Claims Decisions, may be found on the Court of Claims website at www.nyscourtofclaims.state.ny.us.
  4. [4]The tort of negligent infliction of emotional distress has several different forms, and it is the most unusual of these that is under consideration here: emotional harm inflicted in the absence of any related physical injury or fear of physical injury (Kennedy v McKesson Co., 58 NY2d 500, supra; see also, Gerson v Giorgio Sant'Angelo Collectibles, 176 Misc 2d 388).