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March 26, 2002


The opinion of the court was delivered by: Chin, U.S. District Judge


On April 28, 1999, at the 51st Street Lexington Avenue subway station, Julio Perez pushed plaintiff Edgar Rivera onto the subway tracks in front of an oncoming train. Rivera lost both legs. Perez was homeless and mentally ill; at the time he was receiving medical care or other assistance from three medical facilities and two homeless shelters.

In these cases, Rivera and his common-law wife, Elizabeth Pacheco, sue the health care providers and homeless shelters for Rivera's personal injuries and other losses, contending that defendants were negligent in failing to protect the public from Perez. Defendants move to dismiss or, in the case of two defendants, for summary judgment, arguing that they owed no duty to protect Rivera and other members of the public from Perez. For the reasons set forth below, the motions of the medical provider defendants are denied, and the motions of the homeless shelter defendants are granted.


I. The Facts

As alleged in the complaints, the facts are as follows: On April 28, 1999, Rivera was on the platform at the 51st Street Lexington Avenue subway station when Perez pushed him into the path of an oncoming subway train. (Compl. I at ¶ 8, 11).*fn1 As a result, Rivera suffered severe injuries and he required extensive medical treatment. (Id. at ¶ 15).

Perez was a diagnosed paranoid schizophrenic who showed violent tendencies, had a known history of violence, and did not take his medications. (Id. at ¶ 44-46, 50-51). During 1999, defendant New York City Health and Hospitals Corporation (the "HHC") provided Perez with medical and psychiatric services at Bellevue Hospital and Elmhurst Hospital Center. (Id. at ¶ 18, 20-21). Defendants New York Presbyterian Hospital-Columbia Presbyterian Campus ("Presbyterian"), Dr. Bonard Moise, and the United States (through the Veterans Administration (the "V.A.")) also provided plaintiff with medical and psychiatric services. (Id. at ¶ 26, 30-39; Compl. II at ¶ 8-12). Plaintiffs allege that a V.A. doctor saw Perez at the V.A. Hospital in Manhattan on the morning of the incident and permitted him to leave "despite the fact that Mr. Julio Perez, upon information and belief, was under the impression that `people were out to get [him].'" (Compl. II at ¶ 12-13). Criminal charges were brought against Perez, and in October, 2000, he was convicted of attempted murder and assault in New York Supreme Court, New York County.

Plaintiffs allege that the HHC, Presbyterian, Moise, and the V.A. were "negligent and careless in the medical and psychiatric treatment rendered to Julio Perez." (Compl. I at ¶ 53; Compl. II at ¶ 16). Specifically, plaintiffs allege that the medical provider defendants were negligent and careless in:

failing to practice according to generally accepted medical and psychiatric standards;
failing to heed the danger that Perez posed to himself and the general public;
failing to provide Perez with proper and adequate mental health care, drug treatment therapy, or clinical supervision;
failing to "hold" Perez involuntarily in light of his medical history and condition;
failing to take steps to protect the public from Perez;
failing to provide sufficient post-discharge planning and proper out-patient care; and

failing to insure that Perez took proper medication.

(See Compl. I at ¶ 53; Compl. II at ¶ 15).

From approximately April 1998 through April 28, 1999, Perez purportedly resided at two homeless shelters, defendants Fort Washington Men's Shelter ("Fort Washington") and Citiview Connections ("Citiview"). (Compl. I. at ¶ 69, 70)*fn2 During that time, and especially just before the incident, Perez was aggressive and violent toward other residents. (Id. at ¶ 71).

Plaintiffs contend that, in light of Perez's violent behavior during the weeks preceding the accident, "the [shelter] defendants knew or should have known that Julio Perez was a danger to others." (Id. at 71). Plaintiffs also allege that Fort Washington and Citiview "owed a duty to other `third' parties . . . to supervise, control and otherwise restrain Julio Perez" yet "failed to intervene in a reasonable fashion; failed to make any attempts to supervise or control Julio Perez in any manner . . . [and] . . . failed to warn any other agency, treating medical facility or other treating physicians about Julio Perez' behavior." (Id.).

II. Prior Proceedings

Plaintiffs filed suit in May 2000 in New York Supreme Court, Bronx County, against defendants HHC, Presbyterian, Moise, Fort Washington, Citiview, the New York City Transit Authority ("NYCTA"), the City of New York (the "City"), and Dr. Arnaldo Gonzalez. The case was removed to this Court on July 7, 2000 because Gonzalez was a V.A. doctor and thus the claim against him was effectively a claim against the United States. By stipulation so ordered on July 24, 2000, the claims against Gonzalez were dismissed without prejudice to plaintiffs' right to re-file against the United States after complying with the requirements of the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. § 2671 et seq.

After Rivera exhausted his administrative remedies as required by the FTCA, he commenced the second of these actions against the United States. The first case was removed from the Court's suspense docket and restored to active status.

These motions followed. HHC, Presbyterian, Moise, the United States, the City, and Citiview moved to dismiss, and NYCTA and Fort Washington moved for summary judgment. On February 5, 2002, I heard oral argument. Ruling from the bench, I granted the motions of City and NYCTA, dismissing the claims against them. I reserved decision as to the claims against the remaining defendants.*fn3


The principal issue presented is whether defendants, as mental health care providers and homeless shelters, owed a duty to Rivera and other members of the public to use reasonable care to ensure that Perez did not harm others. Specifically, defendants argue that a bright-line rule exists: They contend that providers of health care and other services for the mentally ill owe no duty of care to the general public arising from the care of an outpatient who is receiving treatment on a voluntary basis.

For the reasons that follow, I hold that no bright-line rule exists. Rather, the existence of a duty of care to the general public arising from the treatment of an outpatient turns on the facts. Here, accepting the allegations of the complaint as true for purposes of these motions, and drawing all reasonable inferences in his favor, I conclude that, as to the health care providers, Rivera has stated claims upon which relief may be granted and that therefore he is entitled to offer evidence in support of his claims. Accordingly, the motions of the health care providers are denied. As to the homeless shelters, although I conclude as well that no bright-line rule exists protecting all homeless shelters from liability for the actions of voluntary ...

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