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December 22, 1978;

Donald P. SCANLON, Plaintiff,
Richard H. FLYNN, Defendant. Donald P. SCANLON, Plaintiff, v. UNITED STATES of America, Defendant

The opinion of the court was delivered by: LASKER

Shortly after eleven on the evening of October 6, 1975, two automobiles collided at the intersection of Park Avenue and Sixty-first Street in Manhattan. One car, owned by the United States and operated by Richard Flynn, an agent of the Bureau of Alcohol, Tobacco, and Firearms, came to rest at the southwest corner of the intersection. The other, owned and operated by Donald Scanlon, continued south on Park Avenue and then west on Sixtieth Street. Agent Flynn, alighting from his vehicle, gave chase on foot, fired his revolver at least once, and arrested Scanlon on Sixtieth Street just east of Madison Avenue.

Scanlon, a partner in a Wall Street brokerage firm, was charged with driving while intoxicated, leaving the scene of an accident, and assault. He was arraigned and released the next afternoon, and in April, 1976, the charges against him were dismissed without prejudice. Although shortly thereafter the District Attorney announced his intention to present the case to the grand jury, apparently nothing has come of it since.

Scanlon sues Flynn and the United States for negligent operation of an automobile, assault, false arrest, and malicious prosecution. The defendants have asserted a counterclaim, alleging that Scanlon rather than Flynn was to blame for the collision. *fn1"

 1. Negligence

 The untoward events of October sixth began with a simple automobile accident. Scanlon on the one hand and Flynn and the United States on the other seek recovery for personal injuries and property damage caused by the collision. Liability turns on a single issue: Which driver had the green light?

 Scanlon testified that he had stopped for a light at Sixty-fourth and Park before turning south on Park, and then again at Sixty-third and Park. When the light at Sixty-third turned green, all the lights south as far at least as Fifty-ninth Street also turned green. Scanlon proceeded south. As he approached the Regency Hotel on the northwest corner of the intersection of Sixty-first and Park, he glanced toward it to see whether any cabs or limousines were entering traffic. He did not see Flynn's car until moments before impact.

 Flynn testified that travelling west on Sixty-first Street he stopped for the light at Park. When the light turned green he proceeded into the intersection and was struck broadside by Scanlon's car.

 This is the principal evidence relating to the issue of negligence. The other evidence bearing on who had the red light is inconclusive. *fn2" Clearly Mr. Scanlon and Agent Flynn cannot both be right, but the evidence does not establish which is mistaken. In short, neither has shown by a preponderance of the evidence that the other was negligent, and consequently neither Scanlon nor Flynn and the United States can recover for personal injuries or property damage.

 2. Assault

 Agent Flynn admits that he fired once at Scanlon's automobile. He extricated himself from his car as soon as it came to rest, then saw Scanlon's station wagon about one quarter of the way down the block, moving "fairly slow." Correctly surmising that this was the car that had hit him, and concerned because it did not appear to be stopping, he ran after it.

 According to Flynn, Scanlon's car moved left at Sixtieth Street and Park, as if to turn east, then made an arc around to the west. Flynn testified that by this time he had moved into the intersection at Sixtieth, and the car seemed to be coming directly towards him. Believing that the driver intended to run him down, Flynn turned and moved to the sidewalk. As he turned, he concluded that he would have to fire at the car in order to protect himself, and he pulled his revolver. When he turned again to face the station wagon, however, it was seven to fifteen yards beyond him, moving west on Sixtieth. Nonetheless, Flynn fired by reflex, striking the lower panel of the right rear door of Scanlon's automobile. Several witnesses confirmed that Flynn had fired a shot west down Sixtieth. Flynn then commandeered a passing tow truck, caught up with the station wagon, which he contends was stopped in traffic on Sixtieth, and arrested Scanlon.

 Scanlon's version of events differs in several significant particulars. Scanlon contends that Flynn fired at least twice, once immediately after getting out of his car, and then again at Sixtieth Street. Scanlon testified that he was dazed by the collision and did not regain full awareness until he was some ways down Park Avenue towards Sixtieth. When he did, he glanced in his rear view mirror, saw a man assume a crouched firing position, and heard a sharp report like that of a starter's pistol. Terrified, Scanlon turned west on Sixtieth, but when he saw the flashing lights of the tow truck he assumed that help had arrived, pulled over, and stepped out of his car. Flynn, alighting from the tow truck with his pistol drawn, identified himself as a federal agent, arrested and handcuffed Scanlon, and escorted him back to Park, where police officers were just arriving on the scene.

 Scanlon testified that he neither saw nor heard Flynn's shot down Sixtieth Street. Since he cannot recover for an "assault" of which he was unaware, Scanlon's cause of action for assault is predicated on the earlier shot which he contends Flynn fired down Park Avenue. The testimony of witnesses was far from uniform on the issue of this alleged earlier shot, but taken as a body it might well support a finding that the shooting did occur. However, only one shell and one slug were recovered, and when Flynn unloaded his pistol for the police at the scene, he removed five live cartridges from the revolver's six chambers. Flynn testified that he had no ammunition with him on October sixth other than the six rounds in his weapon. The fact that a subsequent ballistics test revealed evidence of discharge in two chambers may be explained by the fact that the last time Flynn had cleaned the pistol he had done so hurriedly. In light of these ...

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