When Carmen Valdez's onetime boyfriend threatened to shoot her, a New York City police officer assured her that he would be arrested. The boyfriend followed through on his promise, but the police did not.
Still, the case of Valdez v. City of New York alleging failure to provide adequate police protection has now been dismissed by New York's highest court. Five of the seven judges of the Court of Appeals in Albany reversed a Bronx jury verdict and determined that the plaintiff did not have a "special relationship" with the police department that would allow her to have a "justifiable reliance" on the city's promise to arrest her assailant, Felix Perez, before the shooting.
The events surrounding this case go back to 1996. Because she had been abused, harassed and threatened by Perez, Valdez had a Criminal Court order of protection against him. After the telephoned death threat, the victim and her children set out for a relative's home, but stopped to call the police Domestic Violence Unit to make a report. Officer Jose Torres, who had previously been assigned to the case and was familiar with it, told her to go home and that Perez would be arrested "immediately."
The next day, though, when Valdez stepped out of her apartment door, Perez was waiting. He pushed her back inside and shot her three times -- twice in the face, once in her arm -- in front of her five-year-old twins. He then killed himself. She survived.
During the trial in 2006, Torres denied that the exchange with Valdez about arresting Perez had ever taken place. The jury, though, believed it had occurred. Despite that, the appeals court found that Torres' contention that Perez would be arrested "immediately" did not mean she was "entitled to pursue a claim against the municipality."
Providing police protection to the public does not create a duty to a particular individual who is a victim of violence, the judges determined. "The government is not an insurer against harm suffered by its citizenry at the hands of third parties," their ruling said, adding that a call or conversation with a member of the police force does not create a "special relationship" beyond the duty owed to the general public.
The Bronx jury had awarded the plaintiff damages of $9.93 million, but found that she and the city were each 50 percent at fault for the attack. They attributed fault to Valdez because she returned to her home and stepped out of her apartment into a "zone of danger," even though she had no reason to assume Perez was actually in custody.
The Court of Appeals opinion written by Judge Victoria Graffeo relied on this finding. It was not reasonable, according to the judges, for Valdez to conclude, based on nothing more than the officer's statement, that the police were going to arrest Perez "immediately" and "that she could relax her vigilance." This erroneous belief on her part apparently led her to exit her apartment some 28 hours later without having any further contact with the police.
Valdez testified that she did not call Officer Torres again to inquire because she believed he would not be at the precinct but would be looking out for Perez. The city argued that arresting Perez "immediately" would be impossible since the police would have to find him first.
"Although, in a colloquial sense, we should be able to depend on the police to do what they say they are going to do -- and no doubt the police have an obligation to attempt to fulfill that trust -- it does not follow that a plaintiff injured by a third party is always entitled to pursue a claim against a municipality in every situation where the police fall short of that aspiration," Graffeo wrote. "The element of justifiable reliance must be assessed through the prism of reasonableness, and liability will not always extend to a municipality for injuries caused by the violent acts of a third party."
To illustrate what would constitute a special relationship, the judges cited an earlier case on Long Island in which a police car was stationed at the victim's home awaiting the purported assailant. In that case – Mastroianni v. County of Suffolk -- the victim was attacked when the officers left for a dinner break.
In the Valdez case, Chief Judge Jonathan Lippman came to the opposite conclusion from the court majority and would have upheld the jury's verdict. He found that the jury was entitled to determine that Valdez acted reasonably in relying on Torres' statement to her.
Using strong language in his dissent, Lippman wrote, "It does not seem possible to say as a matter of law that it is unreasonable to expect the government to act in accordance with its legal mandate... . This is from a legal perspective merely incorrect, but from an equitable and policy perspective devastatingly wrong. Orders of protection are intended to, and do, foster reliance. To now say that they may not be reasonably relied upon, even in a situation where the party who has been adjudicated in need of protection has been specifically promised that the order will be enforced and has no objective indication that her reliance was misplaced, fundamentally subverts the utility of these orders."
Lippman characterized the events as "lulling the injured party into a false sense of security" that induced her "to relax [her] own vigilance or to forego other available avenues of protection."
A second dissent was by Judge Theodore Jones. The judges joining in the majority opinion were Eugene Pigott, Susan Read, Carmen Ciparick and Robert Smith.
Emily Jane Goodman is a New York State Supreme Court Justice
The brouhaha in the press about bike lanes seems to have subsided for now and the buzz has turned to New York City’s plan to launch the largest bikeshare program in the country. Highly publicized efforts to erase new bike lanes, like the failed court case against the Prospect Park West bike lane in Brooklyn, may have run out of steam. But in the long run, the battles over street space are bound to move beyond downtown and City Hall to the city’s hundreds of neighborhoods where there are many cyclists and very few bicycle lanes, raising complex and long-neglected issues of transportation justice.
Next year New York City’s bikeshare program New York City’s bikeshare program will place 10,000 bicycles at 600 locations in Manhattan and Brooklyn, so that for a minimal charge New Yorkers can get around the city – as an alternative and supplement to private cars, taxis, walking and mass transit. People will be able to pick up a bike at one station and leave it at another. Boston, Washington, DC, Paris and scores of other large cities around the world already have successful bikeshare programs that are expanding bicycle use and changing the way streets are shared.
New York City’s bikeshare program didn’t just spring from nowhere. It crowns decades of gradual changes that have helped make the city safer for bicycles and pedestrians. Unless we begin to understand how biking got this far, however, the press and public could get sidetracked again by high-profile no-bicycles-in-my-backyard antics, and miss an historic opportunity to shape the city’s rapidly expanding bicycle network.
It took New York City a lot longer than many other big cities to get to bikeshare, but it would not have been possible at all if there hadn’t been decades of advocacy both from outside and within government. While there was cycling in New York before there were cars, as street space became monopolized by motor vehicles, cycling became dangerous and difficult. Transportation Alternatives Transportation Alternatives, the city’s largest advocacy group, was founded by bicycle advocates in 1973 and has grown dramatically both in size (with 8,000 members today) and scope (it now works for pedestrian safety, better mass transit, and in general for “reclaiming streets” as public spaces). In the 1990s, partly as a result of pressure from advocates like Transportation Alternatives, the city’s Department of Transportation openly debated the agency’s standard orthodoxy – shared by many traffic managers around the country – that gave priority to the movement of motorized traffic as quickly as possible throughout the city. This engineering dogma actually contributed to congestion because it only encouraged more people to get in cars, and turned major roads like Queens Boulevard and Eastern Parkway into dangerous highways. DOT considered using a different approach that is widely used around the world: traffic calming – which slows car traffic to make streets safer for other forms of transportation like pedestrians and bicyclists. Research clearly shows that slow streets save lives and reduce crashes just as slow food is healthier for you.
In 1997, with the City Planning Department and federal funds, the city made a major breakthrough with its Bicycle Master Plan (full disclosure: I was on the technical advisory committee). At that time there were 119 miles of bicycle lanes and the plan proposed another 900 miles, still covering only about 15% of all streets and highways. The planned bike network reached into the five boroughs and set clear standards for safety and design. Progress was slow and almost all of the new bicycle lanes were simply stripes painted on the pavement, which offered limited protection to cyclists from motorized vehicles. The city’s long-term sustainability plan PlaNYC2030 in 2007 boosted the importance of the lane network and called for its completion by 2030 – hardly an ambitious goal but at least it projected an end date. The promotion of cycling fit in with the 2030 plan’s call for cleaner air, a healthier environment and decreased reliance on fossil fuels that contribute to global climate change.
Mayor Michael Bloomberg'’s appointment of DOT Commissioner Jeanette Sadik-Kahn in 2007 logically followed this long and slow shift in transportation policy; the new commissioner was a clear voice for a more integrated approach to transportation that focused more on the long-neglected infrastructure for safe cycling and pedestrian circulation while still filling the potholes. DOT’s comprehensive approach took the form of the 2008 Sustainable Streets Strategic Plan – the agency’s first strategic plan -- and adoption of a “Complete Streets” approach that values access by all street users and not just cars. DOT also led an inter-agency group that prepared a new Street Design Manual, effectively setting out planning rules for the city’s most valuable public places. New physically-separated bicycle lanes were built on Ninth, First and Second Avenues in Manhattan, among others, addressing the problems of safety for cyclists as well as vehicle parking in bike lanes. The pace of lane development quickened and in four years 250 new miles of bike lanes were put in place, more than doubling the number of miles. Bicycle use more than doubled, and both pedestrian and cyclist casualties declined. In addition, DOT applied traffic calming principles more often, turning some traffic-clogged streets into popular public plazas, putting speed humps on residential blocks, and widening sidewalks at intersections to increase pedestrian safety.
Not everyone is delighted with the trails blazed for bicycling. Vocal opposition in some places has forced DOT to slow down. Some new lanes were erased, like the eight blocks in Williamsburg, Brooklyn that some residents opposed. But so far there are many more bikers filling up new lanes as they get created and bikeshare is likely to give cycling a huge boost, helping to overcome widespread concerns by people who want to bike that they will be out there alone facing a sea of fast-moving cars and trucks. There is still the question of whether the city’s next mayor, who takes office in 2013, will put the brakes on or go in reverse. But those who dream of going backwards haven’t studied the history I’ve cited and underestimate the support for change. Whichever way the next mayor goes, there is likely to remain institutional support for cycling throughout government and beyond, and that will not evaporate after an election.
With bikeshare, and looking beyond it to the future, neighborhoods and community boards are shaping up as more critical players in the game. The next round of decisions on bicycle lanes will depend less on the route system laid out in the 1990s and more on what neighborhood residents and businesses have to say. DOT is inviting proposals for bikeshare stations from community organizations and on its website. This can open up possibilities for creating new, neighborhood-based networks for safer cycling – a logical next step given that most cycling is for short local trips and not long-distance commuting, and many of the original bike lanes covered long distances.
A looming problem, however, is that the traditional institutions for community participation – the city’s 59 community boards – are not equipped to participate as an equal partner in the planning process. Community boards Community boards are the closest thing we have to neighborhood-level government. Since community boards have limited authority, city agencies tend to ignore them and the first slight is in the city budget. The average community board has a (declining) budget of about $1.42 per capita each year (compared to $7,500 that goes into the city’s big budget pot). Their staff is small and even though the City Charter calls for each to have a professional planner, the city has never appropriated the money. Most boards have transportation committees, but there’s no training and support for the volunteer members. Community boards routinely review proposals for bicycle lanes and even though they have no veto power it can take only a few disgruntled speakers angry at losing a parking space to kill a proposal.
The problem with this system of neighborhood governance is that it could lead to the creation of a more sharply divided city, one for cyclists and pedestrians and another for the car culture. Community boards open to more bike lanes have usually gotten them. They usually have more cyclists who attend board meetings and get appointed to the boards. Those community boards opposed – especially in areas far from Manhattan with higher rates of car ownership – have not. Some of the boards – appointed by the borough presidents in consultation with city council members – are dominated by car owners and leave out cyclists entirely. There are no citywide standards that require all street users be represented. This is why the existing bicycle lanes tend to be concentrated in Manhattan and parts of Brooklyn nearest downtown – the very areas to be covered by bikeshare.
Community boards need the resources to do integrated transportation planning in collaboration with DOT, planning that addresses the needs of all street users. Community board members should include transit users, pedestrians and cyclists as well as car owners. However, DOT and the city are going to have to do more to avoid creating a more divided city. The agency’s legacy of top-down planning, reinforced by a top-down mayor, has contributed to bad blood with some of the city’s community boards and works against creation of a collaborative environment and a more representative planning process.
A proposal to fix the process, Intro 412A, currently under discussion by the City Council Transportation Committee would impose new requirements for review of bicycle lane proposals by community boards. But this just puts roadblocks in the way for even minor bicycle safety measures and hands to exclusionary community boards another tool for stopping the bicycle program. It does not address the institutional problems and would make them worse by generating more meetings without guaranteeing more democracy.
While DOT has to learn how to work collaboratively with community boards and all community-based organizations, the agency must retain the last word on street safety. It is a major steward, though not the only one, of our most prized public spaces. No community board should have the right to say no to safe cycling and pedestrian ways, throw thumbtacks in a bike lane, and declare “no-bike-lanes-in my backyard.” If it’s obvious that no board should exclude cars then it should be obvious they cannot exclude bikes. A city-wide transportation system must be balanced and guarantee safe access for all users – that’s what integrated transportation planning is all about. We need one street system connecting us all, not 59 isolated enclaves.
The broken system for making decisions about transportation in neighborhoods leads us to the issue of transportation justice. Contrary to the charges that the city is being taken over by cyclists, there are many thousands of cyclists who never get counted or consulted. They are virtually “invisible,” and many of them are new immigrants and people of color. In a nine-month study of bicycle policy conducted by graduate students in the Urban Affairs & Planning program at Hunter College (full disclosure: I taught the class), students developed a methodology for identifying and counting cyclists in the city’s many new immigrant communities. In Flushing (Queens), their tri-lingual survey found a large population of cyclists and almost no bicycle lanes and bicycle parking. They also found that most people used bicycles to go short distances, leading to a need for more than just a few select lanes and instead rethinking the whole street network. They propose developing neighborhood bike networks, working with community boards so that streets are truly “complete” and safe.
The Hunter students warn that we could be developing an even more segregated system of transportation: bicycle lanes, public plazas, and a safe and healthier environment in the wealthiest parts of the city – Manhattan below 96th Street and Brooklyn’s upscale neighborhoods – where bike lanes are concentrated and heavily used, while the rest of the city gets congested roadways, declining bus service, and unsafe conditions. Some people mistakenly think that bike lanes cause gentrification; this is clearly not true since cyclists in New York are truly a diverse population, representative of the majority which is Latino, African American, and Asian. But the myth is perpetuated by many real estate developers anxious to sell their new condos. Though bike lanes don’t cause racial, ethnic and class divisions, if they are perceived as only for the affluent young newcomers in spandex , and everyone else is invisible, the bike network won’t serve the majority of the population. In too many communities, it is not bicycle lanes but the lack of them that reinforces social exclusion.
Tom Angotti is Director of the Hunter College Center for Community Planning and Development and co-editor of Progressive Planning Magazine.
When does a physician's sexual affair with his patient become medical malpractice?
When he treats her for mental health issues, the New York State Supreme Court Appellate Division, Second Department has determined.
In a September decision and order in the case of Dupree v Giugliano, three out of four judges who heard the appeals of the results at trial, determined that when a Long Island family practitioner — who was neither a psychiatrist or psychologist — began treating his patient for depression and panic attacks, prescribed anti-depressants and conducted "talk therapy," he was providing her with mental health services. As a result, the sexual affair that followed constituted medical malpractice.
The problem was not that he went beyond his medical expertise, but that he became physically intimate with a patient to whom he was rendering psychological care. That made the doctor subject to the same standard as a mental health professional who has sex with a patient, something that is broadly condemned. The appellate court called the defendant's conduct "reprehensible."
"A sexual relationship between a mental health provider and a patient is a departure from the standard of care, whether it is characterized as part of the treatment or independent of it, and it is a departure" from the accepted standards, the court wrote. "When the defendant started providing 'talk therapy,'" the appellate court wrote, "[he] assumed the duty of care applicable to mental health providers."
The acceptable conduct for mental health professionals and intimate relations with patients is higher than it is for other doctors, and sexual relations are a departure from accepted standards.
The doctor, James Giugliano, also referred the patient, Kristin Dupree, to a psychologist who was a friend of his. In therapy with the psychologist, Dupree discussed having a nine-month affair, but because of the friendship between the two doctors, she did not reveal that her lover was actually Giugliano. The court saw this as evidence that his conduct damaged her. Once the affair ended, Dupree confessed to her husband who then proceeded to get a divorce.
A Long Island jury had found that Giugliano's conduct, was medical malpractice because it departed from accepted medical standards, interfered with the plaintiff's treatment and caused damage to her. The jury awarded her $416,500 in damages, including $150,000 for past mental distress, $50,000 for future mental distress, and $134,000 for loss of past financial support, and also awarded the plaintiff $166,000 in punitive damages. The jury also found that the doctor was 75 percent liable and Dupree 25 percent liable, reducing the award to her by a quarter.
Both sides appealed, he seeking dismissal, and she asking the court to attribute 100 percent of the liability to the defendant. She also wanted an increase in monetary damages and the legal fees she incurred in the divorce commenced by her husband. Both appeals were denied, and the court upheld the jury's verdict.
The court's majority agreed that there is a special duty of trust here, writing, "A mental health provider's duty is different, and a sexual relationship between that provider and a patient violates the trust that lies at the heart of the relationship." The court upheld punitive damages, which is unusual, saying that the doctor demonstrated "gross indifference to his patient's well-being."
The one dissenter, Judge Peter Skelos, saw the plaintiff's case differently and would have dismissed it entirely. He reasoned that a doctor cannot be liable for malpractice that is unrelated to his medical treatment even where it is unethical and a "moral impropriety." In other words, Giugliano committed no malpractice in his field – family medicine.
In his dissenting opinion, Skelos wrote, "By engaging in sexual relations with the plaintiff, the defendant may have committed professional misconduct warranting disciplinary penalties, such as revocation of his license. Further, the defendant undoubtedly acted unethically from a moral perspective, particularly due to the plaintiff's vulnerable emotional state. However, not all immoral conduct is actionable in tort. Nor does a violation of professional ethical guidelines, if such were the case here, by itself necessarily support a civil cause of action to recover damages for malpractice."
Skelos relied for precedent on a 1996 opinion by the same court that heard the present case. It too involved a doctor defendant – an allergist &dmash; who saw the patient twice a week for allergy injections and also, on an undisclosed schedule, for sexual relations. That case, Gross v Kurk had been dismissed at the trial level. The dismissal was affirmed with the appellate court saying, "Negligent conduct by a physician constitutes malpractice only when the conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment." The Gross opinion went on to say, "In the instant case the plaintiff made no allegation that her social and sexual relationship with the defendant constituted part of her treatment or was in any way related to her treatment."
The judges in the majority in the Dupree case, Joseph Covello, Ruth Balkin and Leonard Austin, rejected Skelos' analysis because in the Gross case, unlike the more recent one, the doctor never provided mental health services to his patient.
Emily Jane Goodman is a New York State Supreme Court Justice