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BRINK'S INC. v. CITY OF NEW YORK

August 30, 1982;

BRINK'S INC., Plaintiff and Defendant on Counterclaim,
v.
THE CITY OF NEW YORK, Defendant and Counterclaimant; BRINK'S INC., Third-Party Plaintiff, v. JOHN ADAMS, ANTHONY DE NARDO, TREVOR FAIRWEATHER, RICHARD FLORIO, JAMES GARGIULO, JORGE OLIVARI and MICHAEL SOLOMON, WILLIAM J. DONOVAN, FRANCIS GITTO, RAMON HERNANDEZ, WILLIAM McINERNEY, ANTHONY SAN MARCO, JOSE RODRIGUEZ, JAMES SPRINGETT, JOHN BARRERA and JOSEPH NARDO, Third-Party Defendants



The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, D.J.

 Brink's Inc. ("Brink's") and The City of New York (the "City") were parties to an agreement under which Brink's was to collect coins deposited in the City's parking meters. After the contract had been in effect about two years and following the arrest of a number of employees who were charged with stealing collection proceeds, the City cancelled the contract and sought to hold Brink's liable for losses sustained during the performance of the contract. The City sought recovery upon two separate theories: (1) breach of contract for negligent failure to deliver the meter collections to the City; and (2) common law negligence. In addition to compensatory damages, the City also sought punitive damages. Brink's denied liability but, in the event that it was held liable to the City, asserted a cross-claim for indemnity against fifteen present and former employees. The Court submitted a special verdict to the jury which found that the City had sustained its claims for breach of contract and negligence based upon Brink's' failure to (1) supervise and (2) investigate various matters with respect to its employees' larcenous activities. The jury also found that Brink's had failed to sustain its claim that the City was also at fault and had contributed to the damages sustained. The jury awarded the City $1,000,000 compensatory damages and $5,000,000 punitive damages. It also awarded Brink's on its cross-claims $5,000 as against ten employees and found in favor of five other employees who were named as third-party defendants.

 Brink's now moves pursuant to: (1) Rule 50(a) of the Federal Rules of Civil Procedure for a directed verdict on the compensatory and punitive damage claims as to which the Court reserved decision during the trial; (2) Rule 50(b) for judgment notwithstanding the verdict (n.o.v.) as to both damage awards; and alternatively, (3) Rule 59 for a new trial on the ground that the awards are grossly excessive. Brink's further moves to set aside the verdicts in its favor on its indemnity claims against its employees on the ground that they are grossly inadequate, inconsistent and are the result of passion and prejudice and in disregard of the Court's instructions. Alternatively, Brink's requests that the judgments against the ten individual employees be entered jointly, that is in the sum of $50,000 instead of $5,000 against each individual employee, since the jury found that each had acted "jointly and in concert with other employees, whether known or unknown," which the third-party defendants oppose on the ground the evidence does not support a finding of joint liability.

 Each third-party defendant renews his respective motion for a directed verdict made at the close of the trial as to which the Court reserved decision and also moves for judgment n.o.v. pursuant to Rule 50(a) and (b).

 The test on a motion for a directed verdict made at the close of the party's case and at the close of all the evidence upon which the Court reserved decision is essentially the same as that applied on a motion for judgment n.o.v. *fn1" Under familiar concepts, the Court may not substitute its judgment for that of the jury but is bound to view the evidence in the light most favorable to the prevailing party and to give it the benefit of all inferences which the evidence fairly supports, even though contrary inferences might be reasonably drawn. *fn2" A trial court may correct a jury's decision only if after so viewing the evidence it is convinced that (1) there is a complete absence of probative evidence to support the verdict in favor of the prevailing party, or (2) that the evidence is so strong and overwhelmingly in favor of the nonprevailing party that reasonable and fair-minded persons in the exercise of impartial judgment could not render a verdict against it. *fn3"

 The City's evidence in support of its claims against Brink's necessarily supplied the proof to sustain Brink's' indemnity claim against its errant employees since the basic element in the City's case was the systematic theft of meter coin deposits by Brink's' employees, whether named or unknown.

 First, we consider the evidence offered by the City to support the basic element of all its claims that Brink's' employees engaged over an extended period in concerted action in the pilferage of meter coin deposits. As has so often been stated, a conspiracy or concerted action by those engaged in unlawful conduct is rarely capable of direct proof but usually is established by inferences that may fairly be drawn from the behavior of the alleged participants. *fn4" The acts and conduct relied upon to sustain a conspiracy charge must be viewed not in isolation but in proper perspective as of the time of occurrence, in relationship to one another, and against the totality of relevant evidence. *fn5" The evidence offered by the City included surveillances of suspected employees who were observed to have deviated from their assigned routes carrying heavy bags from the transport vehicles into an apartment house where one of the employees resided; the results of a salting test *fn6" which showed substantial unaccounted for coins at various dates and involving different teams of collectors; videotaped surveillances of occasions prior to and on April 9, 1980, when a number of employees were arrested, which showed them acting in what appeared to be a concerted, clandestine and secretive manner with respect to heavy bags allegedly containing meter collection proceeds; the arrest on April 9, 1980 of the group of employees who had in their possession almost $5,000 in coins; and the conviction of a number of the arrested employees either upon pleas of guilty or by a jury verdict for stealing meter coin deposits. In addition, the jury heard various Brink's' employees, who had been subpoenaed by the City, invoke their Fifth Amendment rights to refuse to answer questions regarding the pilferage of coin boxes either by the witness himself or by other employees.

 The foregoing, considered with other evidence, was such that it fully justified the jury's verdict on the prime issue of systematic stealing by employees acting in concert to achieve that objective. To argue, as Brink's does (and as do the third-party defendants) that there was a complete absence of evidence to support the verdict on this issue or that the evidence was so strongly in favor of Brink's and the employees that reasonable and fair-minded men in the exercise of impartial judgment could not have reached the same verdict is to ignore the force of the totality of evidence and to adopt an ostrich-like pose. It follows that the motion of the third-party defendants must be denied. However, proof of the systematic stealing was but one element of the City's negligence and breach of contract claims against Brink's. The City had the burden of proof to establish additional elements of negligence, proximate cause and damages.

 We next consider the evidence offered by the City to sustain the essential elements of the breach of contract and negligence claims which were factually interrelated and in large measure satisfied by the same proof. *fn7" In view of the separate specific findings by the jury that Brink's was negligent both in lack of supervision and lack of investigation, *fn8" it is sufficient if the evidence reasonably supports either ground. *fn9" Not only does the record furnish a reasonable basis for each finding but, here, too, for Brink's to urge that the record is "utterly devoid" *fn10" of substantial evidence to sustain the verdict is to cast a blind eye on the record. A cursory reference to some but not all pertinent evidence requires rejection of this contention.

 The collections were to be made by the employees of Brink's from more than 60,000 parking meters located along the curbs of many streets and, in some instances, in metered parking lots throughout the five boroughs of the City. The daily collections totalled thousands upon thousands of dollars in coins. The City maintained its own personnel at 42 Franklin Street, Manhattan ("Franklin Street"), where daily collections were turned in by the employees of Brink's to City personnel who then sorted and counted the coins. Under the contract, Brink's was required to provide on a daily basis ten three-man collection teams and vehicles to effect the collections from the parking meters. The teams "shaped up" each morning at Franklin Street and were then assigned to particular collection areas. The contract provided that "collection crews shall be rotated in the [City's] discretion . . . as a security measure." This was intended to prevent the same individuals working with each other on a regular basis; its obvious purpose was to minimize the opportunity for collusive conduct by employees with respect to collections. The designated system was, as the parties referred to it, a "lottery." The contract also required that Brink's provide two supervisors at Franklin Street who were to dispatch the crews and remain at the premises until the crews returned with the day's collection.

 The collection system involves three separate units -- the parking meter, a coin box contained within the meter, and a collection cannister. The collector is given a key which affords him access to the sealed coin box or vault within the meter. Upon removal of the coin box with its sealed contents, the collector then inserts it into the cylindrical neck of a collection cannister, which is large enough to collect the coin deposits of an entire area of meters. The cannister is equipped with a key-like apparatus which, once the coin box is engaged and twisted, permits the coin box to open and the coins contained therein to drop into the sealed cannister, returning an emptied coin box to the meter. The purpose is to preclude direct access to the coins by the collector. Upon completion of their assigned routes, the men were required to return directly to the Franklin Street depository and turn in the cannisters containing the day's collection.

 Against that general description of collection procedures, we consider the motions. The City offered proof that the rotation system was not adhered to; that the daily assignments to trucks for collections were frequently made by the collectors themselves and that the management of Brink's was aware of this but did nothing to correct the situation. The jury could readily have found that the planned rotation system was honored more in the breach than in the observance.

 In addition to two on-site inspectors at Franklin Street, Brink's was required to provide an inspector to observe the performance of crews in the field which it failed to do. Donovan, an on-site supervisor, did go out into "the field" and at times engaged in covert observations of meter collections; however, when he became aware of deviations from company rules he failed to make a complete investigation. In one instance, he observed a collector take a coin box, place it underneath his jacket, empty its contents and then place it back into the meter. Yet the employee was permitted to continue on the job without interception; no explanation was sought nor any disciplinary action taken.

 Evidence was also submitted from which the jury could fairly infer that Brink's, after notification that a substantial number of cannister keys were missing, had failed to take adequate measures to protect the security of the keys despite the fact that the City had stressed the importance of their proper return at the end of the day's collection since a key could open any box in the City. On one occasion, Donovan was informed by an employee that the first time he worked with a fellow employee a cannister key was missing, yet no action was taken. It is not seriously disputed that cannister keys played an important role in the theft of the coins. Similarly, when the City complained that collectors were turning in bashed in cannisters or ones with broken goosenecks that suggested tampering by collectors, no effective action was taken. Brink's' contention that its proof established the City was responsible for the thefts because it failed adequately to protect the keys reargues its position of contributory negligence on the part of the City, which the jury rejected. The totality of evidence as to Donovan, by ...


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