New York City is not liable for the death of a popular Queens assistant principal who died of swine flu that he allegedly contracted from students, a state judge has ruled. Mitchell Wiener, a 55-year-old assistant principal at Susan B. Anthony Intermediate School 238, died of the flu in 2009. His wife and three children subsequently filed a wrongful death action against the city, and last week, Queens Supreme Court Justice Phyllis Flug (See Profile) dismissed the action.
According to published reports, the plaintiffs claimed the city failed to warn Mr. Wiener that he had been in contact with people who had tested positive for the flu, did not act quickly enough to halt its spread, and that it did not distribute information about the virus. However, “[t]he City’s response to a possible outbreak of a communicable disease is a discretionary action,” Justice Flug wrote in Wiener v. City of New York, 17073-2010. “Thus, even though there are triable issues of fact regarding whether there existed a special relationship between Mr. Wiener and the City, because the City’s actions were discretionary, there is simply no basis for liability,” she added.
