Protecting the rights of New Yorkers is my top priority.
--Rowan D. Wilson,
upon his nomination to be Chief Judge
(Yes, it's been a few weeks. End-of-semester review sessions, exams, grading, and other pre-occupations. Indeed, some of the latter were following and interviewing on the selection of the new Chief Judge and on filling the resulting Associate Judge vacancy. In case of interest, here are links to a few of those interviews: How might Rowan Wilson operate as Chief Judge of NY?, PBS, New York Now, 4/21/23 [tv/video: https://www.pbs.org/video/how-might-rowan-wilson-operate-chief-judge-ny-umkeke/]; State's top court poised for shakeup, Capitol Pressroom, 4/14,23 [radio/podcast: https://twitter.com/CapPressRoom/status/1646932620419145742]; NY's Next Chief Judge with Prof. Vin Bonventre, Albany Law School Podcast, 4/6/23 [podcast: https://podcasts.apple.com/us/podcast/nys-next-chief-judge-with-prof-vin-bonventre/id1504271732?i=1000607712208].)
In Part 1, we traced Rowan Wilson's eventual nomination by former Governor Andrew Cuomo to the Court of Appeals on Wilson's 6th inclusion on the nominating commission's list between 2013 and 2017. In Part 2, we looked at a couple of Wilson's representative dissenting opinions in criminal cases--those "pleas for greater justice, decency, and wisdom," where he apparently "felt compelled by principles higher than consensus and unison to protest publicly what [his] colleagues had decided." (See Great Dissents: 'Matters of High Principle' at the Court of Appeals, 94 N.Y. ST. B.J. 23 (Nov./Dec. 2022).
Let's now look at a couple of Wilson's (pre-Chief Judge) dissents in civil cases.
Cutaia v. Board of Managers of 160/170 Varick St. Condominiums, 38 N.Y.3d 1037 (2022)
In a 4-3 decision--issued in an unsigned memorandum consisting of two superficial paragraphs--the majority reversed an Appellate Division ruling that sided with a seriously injured worker. In short, while he was working on a building renovation project, the worker fell from a concededly inadequate ladder after coming into contact with live electric wires. According to the majority, because the worker could not recollect anything about the fall and his expert's affidavit was supposedly conclusory, the worker failed to establish the proximate cause for his injuries.
Then-Judge Wilson, joined by Judges Jenny Rivera and Shirley Troutman, disagreed with the majority's dismissive treatment of the injured worker's claim. As Wilson put it, the worker's case was "a prototypical example of the situations the legislature sought to remedy through Labor Law § 240 (1)." He explained:
[The worker] was provided an inadequate ladder for his job, and that inadequate ladder was a proximate cause of his fall-related injuries. Mr. Cutaia need demonstrate nothing else to obtain partial summary judgment under Labor Law § 240 (1); the inquiry stops there.
Judge Wilson detailed what happened:
Michael Cutaia was a plumber. His employer directed him to reroute pipes located above a drop ceiling that contained both pipes and electrical wiring. Mr. Cutaia was provided an A-frame ladder for the work…To access the pipes, Mr. Cutaia had to close the ladder and lean it against a wall. When he climbed the closed ladder and reached for a pipe, he was shocked by an exposed electrical wire and fell to the ground….Mr. Cutaia was severely injured. He was burned on his left hand and the left side of his chest down to his hip, causing some scarring. He also suffered herniated discs in his neck, bulging discs in his lower back, and a torn labrum in his shoulder, resulting in chronic pain in his shoulder, neck, and lower back and numbness in his hands and feet. He has subsequently had three shoulder surgeries and a superior cervical fusion and discectomy in his neck.
Wilson made clear how the law and the litigation supported the worker:
Mr. Cutaia sued to recover for his injuries. He alleged violations of Labor Law § 240 (1), which requires contractors and owners to provide adequate safety devices to persons engaged in elevation-related work. [It] "imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work" (Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015]). A violation of the statute gives rise to absolute liability (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 522 [1985])….Contrary to the majority's assertion…uncontroverted evidence established that Mr. Cutaia was given an A-frame ladder [] and could only use that ladder in an unsafe manner (folded and leaned against a wall) to perform the work he was assigned. When Mr. Cutaia used the ladder, he fell and was injured by the fall….Even the defendants admit that the ladder here was an inadequate safety device for the assigned task, because it could not be used as designed for that task...Mr. Cutaia submitted an expert affidavit averring that the failure to provide an adequate ladder or other safety devices was a proximate cause of his injury…. The defendants tendered no contrary expert opinion or other proof to controvert Mr. Cutaia's expert [and] during oral argument, counsel for defendants agreed that Mr. Cutaia bore no burden to show that some other safety device would have better protected him.
Wilson's dissent--his "plea for greater justice, decency, and wisdom"--is all the more compelling when one considers that the bare majority went out of its way, in an unsigned writing no less, to overrule an Appellate Division decision that had sided with the injured worker.
Ferreira v. City of Binghamton, 38 NY3d 298 (2022)
In the past, dissenting Judges have condemned the patent injustices wrought by the Court's so-called "special duty" rule. For example, a municipality was held to be immune from liability to a woman who was brutally beaten and raped because it had no "special duty" to her, even though the city's police officer had utterly failed to take action after he assured witnesses of the woman's kidnapping that he would do so. (Kircher v. City of Jamestown, 74 N.Y.2d 251 [1989] [Judges Hancock and Bellacosa dissented]) The Court similarly ruled that the same immunity and absence of "special duty" applied where the city's medical examiner failed to disclose corrected autopsy findings--that the decedent was not the victim of a homicide--even though the plaintiff was enduring a continued investigation for murder that wreaked havoc on his family and health. (Lauer v. City of New York, 95 N.Y.2d 95 [2000] [Judges G.B. Smith and Bellacosa dissented].)Last year, in Ferreira, instead of curbing the "special duty" rule or at least keeping it within its traditional limits, the Court actually extended it.
The case involved a plaintiff who was shot and seriously injured by a police officer who mistakenly believed he was armed. The shooting occurred in the course of a no-knock "dynamic entry" by a SWAT team into a residence in which the unarmed plaintiff had been sleeping on the living room couch. On appeal in federal litigation applying New York law, the Second Circuit certified a question to the Court of Appeals, asking whether the state's "special duty" rule applied to the negligent actions of municipal employees, or only to their failures to take protective action.
In a 5-2 decision, the Court of Appeals majority rejected the notion that "a special duty is required only in cases where the municipality allegedly fails to protect a plaintiff [and] does not apply where a municipal employee inflicts the injury in question." Stated otherwise, for the "special duty" requirement, the majority rejected any "distinction between affirmatively inflicted injuries and those occasioned by a failure to adequately respond or protect."
Then-Judge Wilson, joined by Judge Rivera, protested the majority's expansion of the "special duty" requirement and took issue with the entire framework of the rule that the majority embraced. As he put it:
The "special duty" is not, as the majority suggests, a restrictive requirement that applies to all negligence suits against governmental entities acting in a governmental capacity. Instead, it arises where the governmental actor has, through its actions as to a specific, identifiable individual, undertaken a duty it would not otherwise have.
Wilson continued:
We have typically considered the "special duty" doctrine where a municipality has failed to protect the plaintiff from harm caused by a third party. The "special duty" inquiry can arise in such situations because a general duty municipalities may have to protect the public does not automatically give rise to an ordinary duty owed to a specific individual...[W]here the provision of government services is insufficient to support an ordinary duty necessary for a negligence claim to proceed, we then have asked whether a special duty exists.
Wilson further explained that the majority's own analysis undermined its position:
Indeed, the majority's own characterization of the special duty doctrine exposes its error. The majority states that "[t]he special duty doctrine thus developed `to rationally limit the class of citizens to whom the municipality owes a duty of protection,'" citing Kircher v City of Jamestown, 74 NY2d 251, 258 [1989]). The cases cited by the majority for its descriptions of the special duty doctrine all are cases that involve claims that governmental actors failed in their duty to protect an individual from third-party harm. [But w]hen a governmental actor directly and negligently injures someone, no "duty of protection" is involved—it is a duty not to inflict injury.
Wilson then took aim at the majority's warning of municipal exposure to "open-ended liability of enormous proportions" in the absence of its formulation of the "special duty" rule:
[H]olding the government liable in negligence for its own acts that directly cause injury serves the same socially beneficial purpose as with private actors: placing an economic incentive to take reasonable steps to avoid unnecessary harm on the party able to avoid it. To the extent a different cost-benefit calculus pertains to some types of government action that cause direct injury, that is handled through the separate application of governmental immunity, not contortions of negligence law.
Finally, decrying the majority's reactionary "special duty" jurisprudence as contrasted with its prouder tradition, Wilson concluded:
Where we could have revived the proud tradition of Chief Judge Cardozo's Court in advancing tort law to meet modern needs by announcing an ordinary duty of the police to use due care in planning and executing no-knock warrants, the majority has littered its opinion with unsound conclusions suggesting that police activity—or any nonproprietary governmental negligence—can proceed only by establishing a special duty. Instead of advancing the law, we become a regressive outlier. Other states do not require any showing of a special duty when a governmental actor has directly harmed the plaintiff.
I have written previously about the Court's rigid application of the "special duty" rule to immunize government from responsibility for its wrongdoing, regardless of the heartless consequences, as though the rule were some near-religious precept. (See e.g., the discussion of Judge Joseph Bellacosa's dissent in the aforementioned Kircher case in my Great Dissents article cited above.) I have not withheld my view that the Court's devotion to the rule has resulted in atrocious injustices.
We have been considering some of then-Judge Wilson's most passionate dissenting opinions. Now that he presides over the Court as Chief Judge, the question, of course, arises as to whether the Court's position on the "special duty" rule--as well as on other areas of the law in which Wilson has been dissenting, such as the Labor Law protection of workers, the redress of wrongful convictions, the enforcement of the right to counsel, etc.--will start to take a different turn. We certainly shall see.
