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September 3, 1981

Virginia L. BONSIGNORE, Individually and as Administratrix of the Estate of Blase B. Bonsignore, deceased, Plaintiff,
The CITY OF NEW YORK, Defendant

The opinion of the court was delivered by: SOFAER


On the morning of December 20, 1976, Blase Bonsignore ("Bonsignore"), a 23-year veteran of the New York City Police Department, shot and severely injured his wife, Virginia Bonsignore ("plaintiff"), and then committed suicide by shooting himself in the head. Plaintiff was struck by five bullets, which inflicted brain damage and caused motor dysfunction; several fragments remain in her body and brain. The weapon used in the shootings was Bonsignore's .32 caliber "off-duty" revolver, which he was obligated as a police officer to have in his possession twenty-four hours a day. Plaintiff brought this diversity lawsuit on her own behalf and on behalf of her daughters, alleging that her injuries and her husband's death were caused by the negligence of New York City in requiring Bonsignore to carry a gun.

 On March 19, 1981, a jury awarded plaintiff $ 300,000 in compensatory damages for negligence and $ 125,000 in punitive damages, but rejected plaintiff's wrongful-death claim. Defendant now moves for judgment notwithstanding the verdict and, alternatively, for a new trial, on the grounds that the verdict was not in accordance with the evidence and was unreasonable as a matter of law. Plaintiff has moved for a new trial on the issue of compensatory damages, claiming that the award was inadequate. Both motions are denied.

 I. Defendant's Motion

 Defendant faces a difficult burden in seeking to set aside the jury's verdict. This case involved complicated and somewhat ambiguous legal standards, but defendant has conceded that the jury was properly charged. Defendant's Memorandum at 26. Defendant contends, however, that the jury ignored the proper legal standard and based its verdict upon sympathy for plaintiff. Id. at 6.

 Defendant's position is undermined by the fact that it offered virtually no defense at the trial. Defendant called no witnesses of its own; its case-in-chief consisted entirely of introducing two documents and reading additional portions of depositions already read in part by plaintiffs. Defendant cross-examined five of plaintiff's witnesses, but did not question any of plaintiff's ten other witnesses. In short, defendant asks this Court to set aside a verdict, based upon concededly valid legal principles, even though defendant declined to present a serious challenge to plaintiff's case.

 Plaintiff presented a substantial body of evidence, largely unchallenged at trial, that established defendant's negligence to the jury's satisfaction. Plaintiff's witnesses described the New York City Police Department as an institution staffed by persons who scorn and mistrust psychiatrists and psychologists, and who, because of an unwritten "Code of Silence," are extremely unlikely to bring their own psychological problems, or the problems of their fellow police officers, to the attention of superiors. Moreover, plaintiff presented evidence, also largely uncontroverted, that the Police Department could have instituted reliable psychological testing of police officers at a cost of about one dollar per person, and that such tests would have revealed that Bonsignore was mentally ill and should not have been required or even permitted to carry a gun.

 The case went to the jury on two distinct, but related, theories of negligence under New York law. The jury was instructed to find for plaintiff if it determined that the City "knew or reasonably should have anticipated that (Bonsignore's) employment posed a risk of bodily harm to others." Transcript at 805 ("Tr."). Alternatively, the jury was instructed to hold the City liable for negligence if it found that the City had failed to "adopt or implement a sufficiently effective program of psychological screening and monitoring of police officers." Tr. at 808. The jury was told that the City has broad discretion to determine the way in which it runs its Police Department and that it cannot be found liable merely because the system that it chose seems insufficient or imperfect or because the jury would have chosen a different system. But liability could be found either if the City "failed to address itself with due diligence prior to December, 1976 to the problem of reasonably ensuring that police officers are fit to carry guns without endangering themselves or the public," or if "the measures that it adopted for that purpose were so deficient that no reasonable person could have accepted the City's judgment." Tr. at 809.

 On a special-verdict form, the jury selected the second general ground of negligence by checking the box that stated: "we unanimously find defendant liable because of defendant's failure to adequately consider the problem of identifying policemen psychologically unfit to carry guns, or defendant's adoption of a program for identifying such policemen that no reasonable person would have adopted." Defendant did not object to that form. See Tr. at 883. "The language in which the jury findings were couched was meant by the Court merely to remind the jury of applicable portions of the charge and not as statements of the law in and of themselves." Defendant's Memorandum at 6.

 The Court based its negligence instructions on several New York State decisions. In Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63 (1960), the New York Court of Appeals held that a jury must not be allowed to substitute its own judgment for that of "a duly authorized public planning body" by determining that the interval between the times that one green traffic light ended and the next began was too brief. 7 N.Y.2d at 588-89, 200 N.Y.S.2d at 415-16, 167 N.E.2d at 68. The Court went on to state, however, that liability could be "predicated on proof that the plan either was evolved without adequate study or lacks reasonable basis." Id. Similarly, in Southworth v. State of New York, 62 A.D.2d 731, 405 N.Y.S.2d 548 (4th Dep't 1978), aff'd, 47 N.Y.2d 874, 419 N.Y.S.2d 71, 392 N.E.2d 1254 (1979), the Appellate Division held that New York State could not be held liable for injuries sustained as a result of an automobile collision involving drivers who had been permitted to operate motor vehicles as part of an experimental drivers rehabilitation program established by the state, absent proof that the state program "was the product of inadequate study or that it lacked any reasonable basis, or that it was improperly operated." 62 A.D.2d at 741, 405 N.Y.S.2d at 554. See also Santangelo v. State of New York, 103 Misc.2d 578, 584, 426 N.Y.S.2d 931, 934 (Ct.Cl.1980).

 The standard by which a court must decide a motion for judgment n.o.v. is well established. The court must view the evidence, and draw all inferences, in the light most favorable to the non-moving party, and then determine whether no reasonable jury could have returned a verdict for the non-moving party. See, e.g., Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970); O'Connor v. Pennsylvania Railroad Co., 308 F.2d 911, 914-15 (2d Cir. 1962). The federal standard in the Second Circuit is virtually identical to the standard under New York law: "New York Law does not permit a reviewing court to set aside the verdicts unless the evidence so predominates in favor of the party against whom the verdict was rendered that it is clear that the jury did not reach its conclusion on a fair interpretation of the evidence...." Billiar v. Minnesota Mining & Manufacturing Co., 623 F.2d 240, 247-48 (2d Cir. 1980). Viewing the evidence presented in this case in the light most favorable to plaintiff, a reasonable jury could have concluded that the plan adopted by the Police Department for screening officers was unreasonable and that defendant's negligence in adopting that plan caused plaintiff's injuries.

 At the heart of plaintiff's complaint was the requirement, in effect on December 20, 1976, that all New York City police officers must carry a gun at all times when they are within city limits. Police officers were not required to obtain permits to carry guns off-duty, and Bonsignore never obtained such a permit. Tr. at 9, 109. Plaintiff's theory was that defendant was negligent in failing to adopt a program that would have identified Bonsignore as unfit to carry a gun, and that this negligence caused plaintiff's injuries. *fn1" Plaintiff amply demonstrated at trial the hazards of allowing unstable police officers to carry firearms: between 1973 and 1976, when fourteen officers were killed by criminals, seventeen committed suicide and two were killed by other officers, Tr. at 365-66; these suicides were all accomplished with guns. Tr. at 365-66; see Tr. at 400. When Bonsignore joined the Department in 1953, it did not require incoming officers to undergo any type of psychological examination as to their fitness to carry guns and otherwise perform their duties. In the twenty-three years that Bonsignore was on the force, he was never given a psychological examination. Tr. at 105-08.

 Much of plaintiff's evidence as to the Department's psychological evaluation of officers was supplied by Dr. Georgette Bennett, a specialist in police criminology who had served as a consultant to the New York City Police Commissioner for several years prior to the Bonsignore shooting. Bennett described several programs established by the Department to identify officers suffering from psychological problems that could interfere with performance of their duties. But the evidence was sufficient to permit the jury to find that the inherent inadequacies of these programs particularly in light of the institutional characteristics of the Department doomed them to failure. That the programs were deficient both in design and in implementation may have been vividly demonstrated to the jury by the facts of this very case, for Bonsignore exhibited many of the characteristics that were supposed to flag disturbed officers so that they could receive psychological help.

 One of the key programs adopted by the Department was known as the "Early Warning System" ("EWS"); it was established to identify officers who were marginal performers or had other problems. The EWS was based upon centrally maintained personnel records: staff were to examine such items as sick-leave records, complaints, recommendations, transfer reports, and performance evaluations; if problems were detected, colored dots were to be placed on the particular officers' files. A duty sergeant was to notify the commanding officer and first-line supervisor of any police officer whose file was flagged through the colored dot system. Tr. at 422-23. Bennett testified that, for a variety of reasons, the Early Warning System was ineffectual. The EWS failed in part because it had never been properly validated: that is, the Department never verified that the characteristics used to detect problem officers were appropriate and reliable. Tr. at 427. A more significant reason for the program's failure was the alleged existence of a "Code of Silence" in the New York City Police Department. The Code of Silence was an unwritten, but compelling, norm that a police officer shall not damage a fellow officer in any way. Dr. Samuel Duke, a police officer who attended law school and worked with the Labor Department's Organized Crime Strike Force, testified that the Code of Silence means that police officers take care of problems "in house", without involving any outside authorities. Tr. at 276. Duke testified that this ethic is impressed upon new recruits at the police academy and that it extends to superior officers. Tr. at 277. Bennett explained that the Department's top officials were familiar with the Code of Silence, and that she had worked with them to draft a new Code of Conduct that would make it an ethical imperative for police officers to report colleagues. Tr. at 434. Moreover, Dr. David Sternberg, without specifically mentioning the Code of Silence, testified that police officers would be unlikely to ...

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