         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




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