Parvi v. City of Kingston

OPINION BY: FUCHSBERG

…Sometime after 9:00 p.m. on the evening of May 28, 1972, a date which occurred during the Memorial Day weekend, two police officers employed by the defendant City of Kingston responded in a radio patrol car to the rear of a commercial building in that city where they had been informed some individuals were acting in a boisterous manner. Upon their arrival, they found three men, one Raymond Dugan, his brother Dixie Dugan and the plaintiff, Donald C. Parvi… [T]he officers described all three as exhibiting, in an unspecified manner, evidence that they "had been drinking" and showed "the effects of alcohol". They went on to relate how, when Parvi and Dixie Dugan said they had no place to go, the officers ordered them into the police car and, pursuing a then prevailing police "standard operating procedure", transported the two men outside the city limits to an abandoned golf course located in an unlit and isolated area known as Coleman Hill. Thereupon the officers drove off, leaving Parvi and Dugan to "dry out". This was the first time Parvi had ever been there. En route they had asked to be left off at another place, but the police refused to do so.

No more than 350 feet from the spot where they were dropped off, one of the boundaries of the property adjoins the New York State Thruway… For, in an apparent effort to get back, by 10:00 p.m. Parvi and Dugan had wandered onto the Thruway, where they were struck by an automobile operated by one David R. Darling. Parvi was severely injured; Dugan was killed…

THE CAUSE OF ACTION FOR FALSE IMPRISONMENT

… Only recently, we had occasion to set out the four elements of that tort in Broughton v State of New York, where we said that "the plaintiff must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged".

Elements (1) and (3) present no problem here… Element (2), consciousness of confinement, is a more subtle and more interesting subissue in this case. On that subject, we note that, while respected authorities have divided on whether awareness of confinement by one who has been falsely imprisoned should be a sine qua non for making out a case, Broughton has laid that question to rest in this State. Its holding gives recognition to the fact that false imprisonment, as a dignitary tort, is not suffered unless its victim knows of the dignitary invasion. Interestingly, the Restatement of Torts 2d (§ 42) too has taken the position that there is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it.

However, though correctly proceeding on that premise, the Appellate Division, in affirming the dismissal of the cause of action for false imprisonment, erroneously relied on the fact that Parvi, after having provided additional testimony in his own behalf on direct examination, had agreed on cross that he no longer had any recollection of his confinement. In so doing, that court failed to distinguish between a later recollection of consciousness and the existence of that consciousness at the time when the imprisonment itself took place. The latter, of course, is capable of being proved though one who suffers the consciousness can no longer personally describe it, whether by reason of lapse of memory, incompetency, death or other cause. Specifically, in this case, while it may well be that the alcohol Parvi had imbibed or the injuries he sustained, or both, had had the effect of wiping out his recollection of being in the police car against his will, that is a far cry from saying that he was not conscious of his confinement at the time when it was actually taking place. And, even if plaintiff's sentient state at the time of his imprisonment was something less than total sobriety, that does not mean that he had no conscious sense of what was then happening to him. To the contrary, there is much in the record to support a finding that the plaintiff indeed was aware of his arrest at the time it took place. By way of illustration, the officers described Parvi's responsiveness to their command that he get into the car, his colloquy while being driven to Coleman Hill and his request to be let off elsewhere. At the very least, then, it was for the jury, in the first instance, to weigh credibility, evaluate inconsistencies and determine whether the burden of proof had been met…

Reversed.
Chief Judge Breitel (dissenting). I dissent… [P]laintiff has failed even to make out a prima facie case that he was conscious of his purported confinement, and that he failed to consent to it. His memory of the entire incident had disappeared; at trial, Parvi admitted that he no longer had any independent recollection of what happened on the day of his accident, and that as to the circumstances surrounding his entrance into the police car, he only knew what had been suggested to him by subsequent conversations. In light of this testimony, Parvi's conclusory statement that he was ordered into the car against his will is insufficient, as a matter of law, to establish a prima facie case…