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In a spirited debate over the scope of municipal liability, a divided New York state Court of Appeals Tuesday tossed out a lawsuit lodged by a man whose life was torn apart because of an undisclosed error by the New York City medical examiner. Edward G. Lauer became the prime target of a criminal investigation after the medical examiner wrongly declared that Lauer’s 3-year-old child was the victim of a homicide. Lauer’s wife divorced him, his friends ostracized him, his co-workers vilified him, police harassed him and he lost his home — all apparently because the City official neglected to tell anyone that his initial finding was wrong and that the boy had in fact died of natural causes. Yesterday, Lauer had yet another disappointing experience with government when the Court of Appeals held that he cannot sustain an action seeking redress for intentional infliction of emotional distress. The decision prompted two passionate dissents. The ruling in Lauer v. City of New York, No. 59, was one of five decisions in an unusual hand down Tuesday: five decisions and five reversals with each Appellate Division getting overturned, and the 2nd Department getting reversed twice. The Lauer case arises from the 2nd Department, where Lauer endured what one dissent characterized as the “Job-like ruination” of his life. It stems from the Aug. 7, 1993 death of Andrew Lauer, the 3-year-old child of Edward and Lisa Lauer. On the day of Andrew’s death, New York City Medical Examiner Dr. Eddy Lilavois performed an autopsy from which he concluded that the boy was the victim of a homicide precipitated by head and brain trauma. Based on that conclusion, a murder investigation, focusing primarily on Lauer, was commenced. According to Lauer, detectives showed up at Andrew’s funeral and advised family and friends that he had “twisted his son’s neck” and killed his own child. Three weeks after Andrew died, Lilavois and a neuropathologist conducted a more thorough examination of the child’s brain, which had been preserved for that purpose. That examination conclusively proved that the boy suffered a ruptured brain aneurysm and that he died of natural causes. Lilavois, however, neglected to correct the autopsy report or death certificate. Nor did he inform either the Lauer family or law enforcement authorities of his findings. Over the next 17 months, Lauer remained the prime suspect in what police still believed was a homicide. It was not until March 1995 when, thanks to a New York Daily News investigation, the truth was revealed and Lauer was exonerated. Lilavois resigned and both Lauer and his estranged wife sued. Lisa Lauer’s suit, alleging intentional and negligent infliction of emotional distress, was dismissed in its entirety. Lauer’s suit, alleging damages ranging from violation of civil rights to defamation, was largely dismissed. However, Justice Thomas V. Polizzi allowed Lauer’s claim for negligent infliction of emotional distress to go forward. Justice Polizzi was affirmed in a 3-2 2nd Department ruling that was overturned in Tuesday’s 5-2 Court of Appeals decision. In the prevailing opinion, Chief Judge Judith S. Kaye re-stated an essential component of negligence — that absent a duty running directly to the injured party no liability can exist, no matter how negligent the conduct — and observed that the medical examiner has no specific duty to an individual citizen. Under �557 of the New York City Charter, the Office of the Chief Medical Examiner (OCME) is statutorily required to report only to the district attorney. “In order for plaintiff’s claim for negligent infliction of emotional distress to be successful, we would have to impose a new duty on the Office of the Chief Medical Examiner, which for the future would run to members of the public who may become subjects of a criminal investigation into a death,” Kaye said. “This we refuse to do.” Kaye rejected the dissenting judges’ proposal to expand the orbit of duty to embrace the foreseeability of harm, declaring that such a potentially wide-ranging policy is “simply not a prudent expansion of the law.” The majority opinion was joined by Judges Howard A. Levine, Carmen Beauchamp Ciparick, Richard C. Wesley and Albert M. Rosenblatt. PASSIONATE DISSENTS Judges George Bundy Smith and Joseph W. Bellacosa dissented in separate opinions, with each judge concurring with the other’s dissent. Smith agreed that Lilavois’ initial erroneous conclusion was cloaked with governmental immunity. However, he argued that the breach of a ministerial function — namely, the statutory requirement to report autopsy findings to the district attorney — was outside the immunity shield. “Plaintiff had a right to reasonably expect that OCME perform its ministerial duties with reasonable care and in compliance with statutory mandates,” Smith wrote. “Indeed society as a whole has the right to reasonably expect the same, particularly where, as here, misfeasance has such far-reaching implications.” Smith said imposition of liability in this case would “affirm the reasonable expectations of both the parties and society” and suggested that it would “emphasize to those who fail to use care that there are consequences for their actions.” Bellacosa urged the Court to recognize a common law duty in cases like this one where a public official “initiates a course of events that creates a particular danger, then affirmatively maintains the Sword of Damocles over and directly onto the head of a particular individual.” The decision here, Bellacosa said, “seals an undeniable miscarriage of justice.” Bellacosa proposed a new rule which would allow actions in those rare cases where a public servant puts a citizen in harm’s way and then fails to remove or even mitigate that harm when he or she could easily do so. “This duty theorem should be as much the legal canon, as it is the humanistic intuition and moral duty of anyone with such official control over another human being — indeed, someone in a unique and proximate position to ‘rescue’ the very person he spliced onto the investigatory slide,” Bellacosa wrote. Bellacosa has previously differed with the Court’s institutional reluctance to broaden the scope of municipal duty. For example, in Kircher v. City of Jamestown, 74 NY2d 251 (1989), Bellacosa wrote a powerful dissent when the Court shielded a police officer who ignored pleas for help from witnesses who had seen a woman being abducted. Since the victim herself had not been promised the assistance of the officer, no special duty attached, the Court held. In Kircher, Bellacosa accused the majority of applying municipal immunity rules in a way that “makes no common human sense and no good law” while granting “absolution to gross municipal malfeasance.” Assistant Corporation Counsel Julian L. Kalkstein defended the City in the Lauer case. Peter James Johnson Jr. of Leahey & Johnson represented Lauer. The case was argued April 5.

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