Filed: Aug. 30, 2012
Latest Update: Mar. 26, 2017
Summary: 11-1042(L) Lillian Carter et al. v. United States UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTAT
Summary: 11-1042(L) Lillian Carter et al. v. United States UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATI..
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11-1042(L)
Lillian Carter et al. v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 30th day of August, two thousand twelve.
5
6 PRESENT: ROBERT A. KATZMANN,
7 RICHARD C. WESLEY,
8 PETER W. HALL,
9 Circuit Judges.
10
11 LILLIAN CARTER, RUSSELL CARTER, CHAD CARTER, VIRGIL
12 WILLIAMS, TERRANCE WILSON, FKA TERRENCE WILSON,
13
14 Plaintiffs-Appellees,
15
16 v. 11-1042(L);
17 11-1353(XAP)
18
19 UNITED STATES OF AMERICA,
20
21 Defendant-Appellant.
22
23
24
25 FOR APPELLANT: TIMOTHY D. LYNCH, Assistant United States
26 Attorney (Varuni Nelson, Scott R. Landau,
27 Assistant United States Attorneys, on the
28 brief), for Loretta E. Lynch, United
29 States Attorney for the Eastern District
30 of New York, Brooklyn, NY.
31
32 FOR APPELLEES: BRETT H. KLEIN, Leventhal & Klein, LLP,
33 Brooklyn, NY.
34
35
1 Appeal from the United States District Court for the
2 Eastern District of New York (Block, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of United States District
6 Court for the Eastern District of New York is AFFIRMED, in
7 part, and REVERSED, in part.
8 Defendant-Appellant-Cross-Appellee United States of
9 America (the "government") appeals from a judgment of the
10 United States District Court for the Eastern District of New
11 York (Block, J.) awarding Plaintiff-Appellee-Cross-Appellant
12 Lillian Carter ("Ms. Carter") damages of $300,000 under the
13 Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80
14 ("FTCA"). Ms. Carter, together with Russell Carter, Chad
15 Carter, Virgil Williams, and Terrance Wilson (collectively,
16 the "Plaintiffs"), filed a complaint alleging, inter alia,
17 that an employee of the United States Postal Service
18 "negligently provided inaccurate information for law
19 enforcement purposes that directly resulted in an unlawful
20 attempt by the ATF defendants to execute an arrest warrant
21 at the [P]laintiffs' residence." On July 22, 2010, the
22 district court denied the government's motion to dismiss the
23 complaint for lack of subject matter jurisdiction,
24 concluding that Restatement (Second) of Torts § 311
2
1 ("Section 311") satisfied the FTCA's "private analogue"
2 requirement because the New York Court of Appeals in Heard
3 v. City of New York, 82 N.Y.2d 66, 75 (1993), cited that
4 "section and its commentary with approval." The district
5 court went on to conclude that Ms. Carter's claim satisfied
6 the requirements of Section 311 and awarded her damages of
7 $300,000 for "the pain and suffering resulting from her
8 emotional distress" arising out of the search of her home by
9 the ATF. It also declined to award damages to any of the
10 Plaintiffs other than Ms. Carter because they failed to
11 “adduce any evidence of their damage.” We assume
12 familiarity with the underlying facts, the procedural
13 history, and the issues presented for review.
14 The district court erred in concluding that the
15 Plaintiffs’ claim has a private analogue in New York. Under
16 the FTCA, the United States waives sovereign immunity only
17 "under circumstances where the United States, if a private
18 person, would be liable to the claimant in accordance with
19 the law of the place where the act or omission occurred."
20 28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674. To
21 satisfy the private analogue requirement, the plaintiff must
22 show that his claim is "comparable to a cause of action
23 against a private citizen recognized in the jurisdiction
3
1 where the tort occurred, and his allegations, taken as true,
2 . . . satisfy the necessary elements of that comparable
3 state cause of action." Akutowicz v. United States, 859
4 F.2d 1122, 1125 (2d Cir. 1988) (internal quotation marks
5 omitted).
6 Here, the allegations in the complaint do not state a
7 claim that is "comparable to a cause of action against a
8 private citizen recognized in" New York. Id. (internal
9 quotation marks omitted). Plaintiffs candidly admitted at
10 oral argument that by relying on Section 311 they are asking
11 this Court to recognize a “new tort” never before recognized
12 in New York. Notwithstanding that concession, Plaintiffs
13 point to Birnbaum v. United States,
588 F.2d 319, 326 (2d
14 Cir. 1979), and claim that this Court can “anticipat[e] the
15 development of state tort law in resolving the issue of
16 whether a private analogue existed for FTCA purposes,”
17 Plaintiffs’ August 20, 2012 Rule 28(j) letter.
18 In this case, we need not “anticipate” the development
19 of state tort law because there is New York precedent on
20 point. In Lauer v. City of New York,
95 N.Y.2d 95 (2000),
21 the New York Court of Appeals addressed facts and claims
22 almost identical to those presented here and concluded that
23 no cause of action existed.
4
1 There, a city medical examiner performed an autopsy and
2 prepared a report for the police stating that the
3 plaintiff's child's death was a homicide caused by "blunt
4 injuries." Id. at 98. Based on this report, the police
5 began investigating what they thought was a homicide,
6 focusing primarily on the plaintiff, the child's father.
7 Id. Weeks later, the medical examiner conducted a more
8 detailed study of the child's brain and concluded that his
9 death was not a homicide but never notified law enforcement
10 of its new conclusion. Id. The mistake was not discovered
11 for another seventeen months. The plaintiff sued the
12 medical examiner and the city for, inter alia, negligent
13 infliction of emotional distress. Id.
14 The Court of Appeals concluded that the medical
15 examiner did not owe a duty of care to the plaintiff. Id.
16 at 101. The court began by explaining that in "[f]ixing the
17 orbit of duty" courts must be "mindful of the precedential,
18 and consequential future effects of their rulings, and limit
19 the legal consequences of wrongs to a controllable degree."
20 Id. at 100 (internal quotation marks omitted).
21 Foreseeability of harm does not create a duty; rather, the
22 court must define duty “as a matter of policy.” Id.
23 Concluding that no "special relationship" was created
5
1 between the plaintiff and medical examiner either by statute
2 or the medical examiner's conduct, the court dismissed
3 plaintiff's claim.1 Id. at 102-03.
4 While Lauer deals with a duty owed by a public
5 employee, and not a private individual, the decision is
6 still determinative here. Much like Plaintiffs’ claim under
7 the FTCA, the plaintiff in Lauer could only prevail if New
8 York law allowed a similar claim for conduct by a private
9 individual. Id. at 99-100. While New York municipalities
10 long ago waived their immunity for negligent ministerial
1
We do not view Lauer’s “special relationship”
analysis solely as a limitation on a municipality's tort
liability. Rather, it is meant to assess whether the
tortfeasor has a relationship with the injured party that is
akin to privity so that it is reasonable to impose a duty on
the tortfeasor. See, e.g., Parrott v. Coopers & Lybrand,
L.L.P., 95 N.Y.2d 479, 484 (2000). This requirement
reinforces the general principle that in order for a duty of
care to exist, "[t]he injured party must show that a
defendant owed not merely a general duty to society but a
specific duty to him or her, for ‘[w]ithout a duty running
directly to the injured person there can be no liability in
damages, however careless the conduct or foreseeable the
harm.'" Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222,
232 (2001) (quoting Lauer, 95 N.Y.2d at 100). Indeed, in a
claim for negligent misrepresentation that is relied on by a
third-party a privity-type relationship has long been
required before a party may recover in tort for damages
sustained as a result of the negligent misrepresentation.
See Parrott, 95 N.Y.2d at 484; Prudential Ins. Co. v. Dewey,
Ballantine, Bushby, Palmer & Wood, 80 N.Y.2d 377, 382
(1992); Eiseman v. New York, 70 N.Y.2d 175, 188-89 (1987).
6
1 acts of public employees, like those acts at issue in Lauer,
2 the waiver of immunity does not create new causes of action
3 for negligent acts by public employees where none previously
4 existed for private individuals. Id. There must still be a
5 cognizable claim against a private individual (private
6 analogue) before liability can attach: “‘waiver-of-immunity
7 statutes have not created new causes of action where none
8 existed before; they have only removed the shield of
9 governmental immunity where a cause of action would exist if
10 the tort-feasor were a private person.’” Id. at 100
11 (quoting Horace B. Robertson, Jr., Municipal Tort Liability:
12 Special Duty Issues of Police, Fire, and Safety, 44 Syracuse
13 L. Rev. 943, 945 (1993)). Thus, the Court of Appeals
14 explained that it had to assess whether the medical examiner
15 owed a duty of care to the plaintiff:
16 [A] ministerial wrong merely removes the
17 issue of governmental immunity from a given
18 case. Ministerial negligence may not be
19 immunized, but it is not necessarily
20 tortious. There must still be a basis to
21 hold the municipality liable for
22 negligence.
23
24 Id. at 99-100 (citations and internal quotation marks
25 omitted).
26 Without addressing Lauer, the Plaintiffs argue, and the
27 district court agreed, that the Court of Appeals would adopt
7
1 Section 311 if squarely presented with the issue. They
2 argue that New York would recognize a duty running from one
3 who negligently gives false information to another to all
4 third persons that “the actor should expect to be put in
5 peril.” Appellees’ Br. at 27 (quoting Section 311). But
6 this is exactly the type of claim that Lauer foreclosed.
7 Indeed, the court declined to adopt a “new duty [] based on
8 negligent initiation of a course of events with foreseeable
9 harm,” concluding that “[t]his is simply not a prudent
10 expansion of the law.” Lauer, 95 N.Y.2d at 104.
11 For the foregoing reasons, the judgment of the district
12 court awarding $300,000 to Ms. Carter is hereby REVERSED.
13 Because the Plaintiffs’ claim has no private analogue in New
14 York, the Court AFFIRMS the district court’s order insofar
15 as it declined to award damages to any of the Plaintiffs
16 other than Ms. Carter.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
8
