Firefighters and police officers who are injured during the course of duty potentially have two causes of action: A common law negligence cause of action, and a special statutory cause of action (General Municipal Law, Section 205-a for firefighters and General Municipal Law, Section 205-e for police officers). Until 1996, the common law cause of action was greatly restricted by the firefighter's defense, known also as the Santangelo defense, named after the Court of Appeals decision at 71 N.Y.2d 393, 526 N.Y.S.2d 812. It was also more clearly defined in Kenavan v. City of New York, 70 N.Y.2d 558, 523 N.Y.S.2d 60 (1987).
The firefighter's defense is, broadly speaking, that police and firefighters assume the ordinary, inherent risks of their highly dangerous employment, and may not sue in common law when such dangers result in an injury. Simply put, the common law claim will be barred only if "the performance of his or her duties increase the risk of the injury happening and did not merely furnish the occasion for the injury." For instance, where a police officer "is injured by a suspect who struggles to avoid an arrest, the rule precludes recovery because the officer is specially trained and generously compensated to confront such dangers." Zanghi v. Niagara Frontier Transportation Commission, 85 N.Y.2d at 440, 626 N.Y.S.2d at 28. But, "if a police officer who is simply walking on foot patrol is injured by a flowerpot that fortuitously falls from an apartment window, the officer can recover damages because nothing in the action undertaken placed him or her at increased risk for that accident to happen" (Zanghi). Because recovery at common law was so restrictive, the Legislature enacted, mostly for political reasons, special statutory causes of action for firefighters and police officers. GML 205-a for firefighters (enacted in 1935, and amended in 1996) and GML 205-e for police officers (enacted in 1989, and amended in 1992 and 1996). Unlike the common law cause of action, recovery under Sections 205-a and 205-e is not subject to or circumscribed by the so called firefighter's defense. In fact, not even comparative negligence is a defense in such action.
However, under these two statutes there are threshold requirements for statutory liability. Common law negligence is not enough to create liability. The plaintiff still has to prove as per the statutes that the defendant violated some specific statute, regulation, or rule, and that such violation, directly or indirectly, caused the plaintiff's injury.
To make a 205-a claim, plaintiff must (1) identify the statute or ordinance with which defendant failed to comply; (2) describe the manner in which the firefighter or police officer was injured; and (3) set forth those facts from which it may be inferred that the defendant negligently directly or indirectly caused harm to the firefighter or police officer.
The first restriction is one of judicial interpretation. Although 205-a and 205-e explicitly say that violation of any federal, state, or local statute, ordinance, rule, or requirement suffices, many courts have construed the word "any" in strange ways. For instance, the seminal case of St. Jacques v. City of New York, 215 A.D.2d 75, 633 N.Y.S.2d 97 (First Dept., 1995) held that the Legislature really meant that the imposed duties were not also owed at common law. So that if a duty imposed by statute replicated the common law, that would not suffice as a threshold for the cause of action. Thereafter, in Desmond v. City of New York, 88 N.Y.2d 455, 646 N.Y.S.2d 492 (1996), the City successfully argued that the statutory reference to "any of the statutes, ordinances, rules..." really means only "well developed bodies of law and regulations which impose clear duties" (88 N.Y.2d at 464, 646 N.Y.S.2d at 496). These two cases and their progeny have, in fact, meant that far from applying "any" statutory/regulatory violations, the statutes would apply to "hardly any" if any violations. That situation existed until October, 1996 when the Governor signed into law a new statute, General Obligations Law, Section 11-106, that effectively invalidated the firefighter's defense in almost all future and pending actions, thus according police officers and firefighters the same common law rights as are enjoyed by all other plaintiffs.
The first section of GOL 11-106 grants an additional right of recovery for a police officer or firefighter who suffers injury or death while in discharge of official duties from any person or entity who caused that injury or death if proximately caused by that person's neglect. The second section states as follows: "Nothing in this section shall be deemed to expand or restrict the existing liability of an employer or co-employee at common law or under GML 205-a or 205-e for injuries or death sustained in the line of duty by any police officer or firefighter (Laws of 1996)."
It is thusly seen that the one exception is that the statute (GOL 11-106) does not apply in actions against plaintiff's employer. Meaning that common law causes of action by New York City police officers and firefighters against the City itself, actions which are permitted by virtue of a quirk in the worker's compensation law, continue to be governed by the same common law standards as formerly governed such actions. For this reason, the firefighter's defense remains meaningful for some plaintiffs.
But the Legislature did more in 1996 than merely disallow the firefighter's defense except in actions against the plaintiff's employer. Whereas the police officers statutory cause of action (GML 205-e) was by virtue of a 1992 amendment, no longer limited to "premises defects" which caused the injury, such limitations still applied to the firefighter's cause of action (GML 205-a) since the firefighter's statute had not been similarly amended to apply to violations "at any time or place." So on 10/9/96, the Legislature amended GOL 11-106 and made the statute retroactive not only to all pending actions but also as to any actions pending or dismissed after January 1, 1987. The firefighter's statute GML 205-a now also applies to violations "at any time or place."
In addition to extending the scope of GML 205-a and e, the Legislature in GOL 11-106 decreed that GML 205-a and 205-e provide a cause of action regardless of whether the statute or regulation that was violated posed a duty also owed at common law and regardless of whether the danger in issue was one inherent to police work or firefighting.
B. The Common Law Cause of Action and the Firefighter's Defense. Notable cases:
The firefighter's defense cases. Jackson v. City of New York, 251 A.D.2d 457, 674 N.Y.S.2d 721 (Second Dept., 1998). In actions against the employer recovery under common law is still barred "where some act taken in furtherance of a specific police or firefighting function exposed the officer to a heightened risk of sustaining the particular injury." Zanghi v. Niagara Frontier Transportation Commission, 85 N.Y.2d 423, 439, 626 N.Y.S.2d 23. General Obligations Law, Section 11-106, which partially abrogated the firefighter's rule, applies only where the police officer's or firefighter's injury, disease, or death is caused by a person or entity other than that police officer's or firefighter's employer or co-employee. Here, plaintiff was injured when he tripped and fell while attempting to apprehend a suspect and sued his employer, the municipality, and, therefore, recovery under common law was barred by the firefighter's rule.
In Brady v. City of New Rochelle, 296 A.D.2d 365, 744 N.Y.S.2d 494 (Second Dept., 2002), a police officer plaintiff was injured in a motor vehicle accident during a police training course. The Second Department affirmed a dismissal of his case. He was performing his duties as a police officer at the time (heightened risk) and, his common law negligence action is barred by GOL 11-106 (suing his employer). Also, it is barred because he received salary and medical benefits pursuant to GML 207(c), citing Braxton v. City of Yonkers, 717 N.Y.S.2d 326.
In Simons v. City of New York, 252 A.D.2d, 451, 675 N.Y.S.2d 597 (First Dept., 1998), even simply escorting a prisoner is a "heightened risk" so that any police work other than the most passive in a common law action against a municipality will be dismissed, but not the statutory action. In this case, the police officer tripped over a pavement defect while escorting a complainant to the subway. The performance of the duty in this case, even though an undramatic one, was the connection between hazard of police work and the injury, and therefore the firefighter's rule provided a complete defense to the City and summary judgment dismissing the common law negligence claim was granted. Plaintiff was granted leave to amend his complaint to assert a claim under GML 205-e. Plaintiff was allowed to plead that the violation of New York City Charter 2903(b), requiring the City to maintain streets and sidewalks in a reasonably safe condition, gave rise to Section 205-e liability.
Ciervo v. City of New York, 93 N.Y.2d 465, 693 N.Y.S.2d 63 (1999), reversing, 637 N.Y.S.2d 918, 167 Misc.2d 170, affd. 240 A.D.2d 693. This case held that the so-called firefighter's rule or firefighter's defense does not extend to sanitation workers injured on the job. The plaintiff-sanitation worker tripped over a sidewalk defect during the course of his duties. The City of New York largely relying on Santangelo argued that New York City sanitation workers are like police officers and firefighters and are specially trained to confront risks and hazards on behalf of the public and receive added job benefits, including sick leave, line-of-duty injury status, and corresponding benefits, and, therefore, should be held to the same defense as policemen and firefighters. The lower court held for the City; that was affirmed by the Appellate Division, but the Court of Appeals, happily for plaintiffs, reversed. The court held that the firefighter's rule does not apply to sanitation workers because sanitation workers are not expected or trained to assume the hazards routinely encountered by police officers and firefighters.
In summary, as to private defendants there is no longer any firefighters defense, but the defense is still viable as to actions against municipalities or agencies of municipalities, i.e., in Plunkett v. Emergency Medical Services Corporation of New York, 260 A.D.2d 193, 687 N.Y.S.2d 375 (First Dept., 1999). Plaintiff, a housing authority police officer, was injured by virtue of the negligence of an EMS employee. Although EMS employees and Housing Authority police officers were not City of New York employees as of the date of the injury, both agencies merged with the City prior to the effective date of GOL 11-106. The issue was whether the statute was applicable on the ground that neither plaintiff nor the alleged negligent party was a City employee as of the time of the incident, or was the statute applicable on the ground that both were City employees as of the statute's effective date. The court held that the statute was inapplicable, and the plaintiff could maintain his action.
So if the police officer trips and falls on a City sidewalk while pursuing a perpetrator, as against the City the case is dismissed, but it still viable against the adjoining private property owner as in Cosgriff v. City, 659 N.Y.S.2d 888 affd. 693 N.Y.S.2d 486.
Grogan v. City of New York, 259 A.D.2d 240, 699 N.Y.S.2d 12 (First Dept., 1999). In Grogan, the plaintiff, a New York City police officer, while pursuing a suspect tripped and fell on an icy and broken sidewalk abutting City-owned property. He argued that he could still recover from the City in its capacity as owner of the premises abutting the sidewalk. The court rejected this interpretation holding that GOL 11-106 precludes all claims against the employer in whatever capacity. Because plaintiff tripped while pursuing a suspect, the case is consistent with prior case law to hold that the injury arose from a danger and that suit could, therefore, not be brought at common law.
Carter v. City of New York, 272 A.D.2d 498, 708 N.Y.S.2d 426 (Second Dept., 2000). Plaintiff police officer tripped over a sidewalk defect while issuing a parking citation to an illegally parked car. The court held that the common law recovery was barred since the injury occurred while she was performing an act taken "in furtherance of a specific police function which exposed her to a heighten risk of sustaining the injury" (708 N.Y.2d at 427, quoting from Zanghi).
Church v. City of New York and H.J. McGrain & Son, 268 A.D.2d 382, 702 N.Y.S.2d 274 (First Dept., 2000). A police van driven by a civilian operator, in which plaintiff, a police officer, was a passenger, was transporting prisoners from a precinct to central booking when it was rear-ended by another car. The jury returned a verdict in plaintiff's favor. The court held under the firefighter's rule that the plaintiff's status as a police officer precluded suit against his employer, the City, under the common law. Plaintiff was limited to his cause of action under GML 205-e. Plaintiff brought a 205-e claim against the City on violations of VTL 1104 and a common law action as against the private van operator. Held that the common law action against the City is dismissed under VTL 1104 (emergency vehicle) so plaintiff gets a new trial only on the GML 205-e action on liability of the negligence of the van operator.
Flynn v. City of New York, 258 A.D.2d 129, 693 N.Y.S.2d 569 (First Dept., 1999). The plaintiff police officer suffered line-of-duty injuries during a riot in Tompkin's Square Park in Manhattan and brought suit under common law and under GML 205-e. There was a political demonstration in the park; the officer in charge of the police response tried to utilize a low key strategy; and the officers were ordered not to use "hats and bats" (helmets and nightsticks). The strategy did not succeed and, by the end of the evening, 275 police officers, 11 lieutenants, and 35 sergeants had responded. The plaintiff sustained some head injuries and other injuries during the conflagration and didn't have on his helmet and sued the City. The court held that GOL 11-106 does not apply to actions involving the neglect, etc. of a co-employee and there was a compelling case for the application of the firefighter's rule inasmuch as the police officers were performing a police function that put them at a heightened risk of injury and, therefore, the common law claim was barred. Regarding the GML 205-e cause of action, the court noted that the statute was limited to "non-compliance with well developed bodies of law and regulations" which "imposed clear duties" (citing Desmond) and neither the patrol guide nor the training manual (requiring helmets) constituted a well-developed body of law or regulation and thusly could not premise a lawsuit under GML 205-e. Similarly, in Gervasi v. Pateay, 254 A.D.2d 172, 679 N.Y.S.2d 45 (First Dept., 1998), the patrol guide sections cited by the plaintiff could not support a GML 205-e claim since the "sections cited by the plaintiff were not part of a well developed body of law and regulation."
So we see that because there was a heightened risk there was no common law claim against the City and there is no 205-e cause of action because the patrol guide violation is insufficient as not being a settled body of law.
In Balsamo v. City of New York, 287 A.D.2d 22, 733 N.Y.S.2d 431 (Second Dept., 2001), a police officer was injured in a motor vehicle accident as a passenger in a marked patrol car. He brought claim under Section 205-e of the General Municipal Law alleging that he was injured because of the sharp protruding edge on the unpadded computer console between the driver and passenger seats. He alleged violations of the patrol guide, the Vehicle and Traffic Law, and also Labor Law, Sections 200 and 27(a), arguing that under the Labor Law the City failed to provide shock-absorbent padding around the computer unit. Supreme Court dismissed the 205-e claim based on the violations of the Vehicle and Traffic Law and the patrol guide and Labor Law, Section 200. However, it denied the City's motion for summary judgment dismissing the Section 205-e claim based on Labor Law, Section 27(a), finding that the section was a sufficient predicate for the claim. Labor Law, Section 27(a) requires every employer to furnish its employees with a work environment which is free from recognized hazards which may cause injury or harm. The court held that the section was a valid predicate for a Section 205-e claim which was amended to provide a right of recovery to police officers even where the risk of injury was not increased beyond the dangers inherent in the work of a police officer. The Labor Law was not permissive, but rather contained a specific mandate to provide a safe work place. Since Section 205-e provides a right of recovery for any such code violation, this section was a sufficient statutory predicate for such a claim. There was thus an issue of fact as to whether the unpadded computer console was a "recognized hazard" within the meaning of the Labor Law.
Other patrol guide violations:
In McCormack v. City of New York, 2002 WL 171621 (Sup. Ct., N.Y. Cty., 2002), plaintiff's decedent was a police officer who was killed in a drug raid. His estate sued to recover against the City on theories of negligence and a violation of Section 205-e. Supreme Court held that the plaintiff's claim against the City on negligence was barred on the grounds that a police officer or firefighter could not recover against their employer for acts of negligence. It further dismissed the 205-e claim since the violation alleged was based upon the patrol guide and, as we know, that is not a sufficient predicate.
In Crespo v. City of New York, 191 Misc.2d 395, 742 N.Y.S.2d 808 (Sup. Ct., Queens Cty., 2002, Strauss, J.), plaintiff was a New York City police officer who was injured when an armed assailant attempted to gain entry into the precinct and assaulted him. He sought to recover under Section 205-e and relied upon the Police Department's patrol guide as a statutory predicate for the claim. Plaintiff attempted to distinguish Desmond and Galapo v. City, 95 N.Y.2d 568, 721 N.Y.S.2d 857, by claiming that the patrol guide is flexible, but that superior officers are instructed it is not flexible, and it is binding on superior officers. The court found this argument to be without merit. City was entitled to summary judgment dismissing the claim. It further noted that the Governor did not sign legislation aimed at amending the General Municipal Law to include internal fire and police department manuals as a basis for establishing liability. This was also followed in Malenczak v. City, 265 A.D.2d 532, 697 N.Y.S.2d 138 (Second Dept., 1999) where the alleged violation of a City police patrol guide procedure could not serve as a predicate to amend the complaint to add a cause of action to allege a GML 205-e violation.
Penal Law violation as a statutory predicate:
In Capotosto v. City of New York, 288 A.D.2d 419, 734 N.Y.S.2d 102 (Second Dept., 2001), plaintiff was a police officer who claimed to have been injured as a result of the actions of her fellow officer and made claim under Section 205-e and asserted Penal Law, Section 120.20 as the statutory predicate for the 205-e claim. Section 120.20 is a criminal statute involving reckless endangerment in the second degree in which the defendants were aware of consciously disregarding a substantial and unjustifiable risk. Plaintiff based her violation of the Penal Law on the provisions of the patrol guide for the City Police Department. The Appellate Division held that plaintiff was indirectly attempting to use an improper predicate for a 205-e violation, namely the patrol guide. It held that since the patrol guide was not sufficient to establish a claim under 205-e, plaintiff was not allowed to use the patrol guide as a basis of the Penal Law violation.
Can an OSHA regulation serve as a statutory predicate to a 205-a claim?
In McGovern v. City of New York, 294 A.D.2d 281, 742 N.Y.S.2d 218 (First Dept., 2002), plaintiff firefighter was injured when hot water and steam penetrated the gap between his coat and boots. Plaintiff filed an action pursuant to Section 205-a and claimed that his protective clothing did not comply with OSHA regulations because it allowed scalding water to reach the firefighter's leg through the gap between his boots and his coat. The City moved to dismiss. Supreme Court granted the City's motion, but the Appellate Division reversed on the grounds that an OSHA regulation can serve as a predicate to a 205-a claim because it is part of a well developed body of law that imposes a clear legal duty. The plaintiff's expert raised a triable issue of fact as to whether the City's protective equipment complied with OSHA. (Contrast this with Labor Law, Section 241(6) violations.)
Building Law violation as a statutory predicate:
In Brocato v. City of New York, 743 N.Y.S.2d 19 (First Dept., 2002), plaintiff was a police officer who was injured when he was accidentally shot while on duty in a City owned building hallway where a light bulb was out, and, on trial, an award of $1.5 million was rendered. The claim was brought under General Municipal Law, Section 205-e and he based his claim on a violation of the patrol guide as well as violation of various statutes regarding light requirements in the premises. The Appellate Division affirmed the finding of liability solely on the basis of the violations of the various codes concerning required lighting. However, it rejected any claim under the patrol guide or other police department orders since "neither reflects a well developed body of law but merely guidelines notwithstanding the use of mandatory terms." The court also rejected the attempt for the first time on appeal to allege Penal Law, Section 35-30 as a basis for the statutory claim since it did not create an affirmative duty but rather a defense in a criminal case. Finally, the court set aside the trial court's determination that a new trial on damages was required and affirmed the award of $1.5 million.
What about MDL, Section 78 violations as a predicate for GML 205-a liability? In Hayes v. City of New York, 264 A.D.2d 610, 695 N.Y.S.2d 328 (First Dept., 1999), the Appellate Division rejected defendant's claim that MDL, Section 78 requiring multiple dwelling owners to keep their buildings in good repair was "too general" to serve as a predicate for GML 205-a liability.
In Betterly v. Estate of Silver, 266 A.D.2d 30, 698 N.Y.S.2d 17 (First Dept., 1999), a police officer fell while in an apartment while attempting to apprehend a prisoner allegedly because of the failure of the landlord to install window guards and locked exterior doors in an apartment building in violation of the Administrative Code provision requiring the same. This was held not to be the proximate cause of his injuries and the case dismissed. Similarly, in Sconzo v. EMO Trans Inc., 295 A.D.2d 493, 744 N.Y.S.2d 471 (Second Dept., 2002), the police officer was checking the roof of defendant owner's building for evidence of criminal activity and set up a ladder with a defective hinge which promptly broke sending him to the ground. This was held insufficient to prove a practical or reasonable connection between the violation and the injury and the cause of action failed under 205-e. Some more recent cases: Brennan v. NYCHA, 302 A.D.2d 483, 756 N.Y.S.2d 73 (Second Dept., 2003. Plaintiff was a firefighter injured in a gas explosion in a building owned by the NYCHA. The fire occurred after a resident stole one of the stoves from the apartment complex, leaving a leak in the gas lines to the stove. Plaintiff claimed that the HA failed to promptly investigate claims of gas leaks and that the failure to investigate and notify the fire department led to the explosion. Plaintiff rested his claim on Section 27-127 and 27-128 of the Building Code which provided that the owner must keep the building in a safe condition. He also brought suit under 9 N.Y.C.R.R. 1196.1(b) of the New York State Uniform Fire Prevention and Building Code which required that a fire department would be notified immediately on the discovery of an controlled gas leak. The HA had contended that liability could not be imposed based on these violations. The Appellate Division affirmed the lower court's denial of summary judgment and disagreed with the HA's position. It is noted that all sections relied upon by the plaintiff were sufficient statutory predicate for the claim. It also noted that the common law negligence cause of action are not barred by the so called "firefighter's rule." Instead, the amendment to 205-a of the GML permitted common law negligence claims to be brought against the land owner. It should be noted that the plaintiff submitted an expert affidavit outlining the specific violations and the connection they had to the occurrence.
In Padula v. County of Tompkins, 303 A.D.2d 804, 756 N.Y.S.2d 664 (Third Dept., 2003). Plaintiff's decedent was a police officer who was fatally stabbed by an out-patient under the supervision of the County's Mental Health Clinic. The County moved to dismiss on the grounds that its actions in supervising the patient were not a proximate cause of the officer's death; that their actions were immune as a legally protected exercise of medical judgment; and that the cause of action was barred by the firefighter's rule. The Appellate Division affirmed the denial of summary judgment and rejected each of the County's contentions. It held that the County's treatment of the patient was a proprietary function and that it had the same duty of care as any private institution engaged in such treatment. With regard to the contention that errors in medical judgment granted immunity, the court held that such an issue was for a jury to determine since there were issues as to whether the person who treated the patient was qualified to make an informed judgment as to the patient's condition. The court also noted that the firefighter's rule was abrogated when the Legislature enacted GOL 11-106(1) which permitted recovery for damages caused by the negligence of any person other than the police officer's employer or co-employee.
In Williams v. The City of New York, 304 A.D.2d 562, 758 N.Y.S.2d 349 (Second Dept., 2003), a prisoner stole a police service revolver in a police locker room which he used to kill a detective. The estate brought suit against the City under GML 205-e citing a provision of the Labor Law requiring every employer to furnish to its employees "employment and place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm...which will provide reasonable and adequate protection to the lives, safety, or health of its employees." (Sections 27A of the Labor Law, and 27-127 and 27-128 of the Building Code.) After a jury trial, which resulted in a verdict for the plaintiffs, the City appealed. The Appellate Division set aside the verdict and dismissed the complaint. The court held the statute inapplicable since the hazard was not based on the physical condition of the locker room but rather the practice of holding prisoners in proximity to where firearms were kept. There was no proof that the locker room was an unsafe place of employment within the meaning of that section. The dissent would have sustained the verdict based on the violation of Labor Law, Section 27(a).
Giuffrida v. Citbank Corp., 100 N.Y.2d 72, 760 N.Y.S.2d 397 (2003). If there was ever any doubt that GML 205-a was designed to encourage strict compliance with building codes and to permit recovery to firefighters where civilians ordinarily would not have a claim, the Court of Appeals latest pronouncement should leave no doubt on either score. The case arose from a Brooklyn donut shop fire in 1993. Firefighter Giuffrida was operating a water hose when an alarm signaled he was running low on oxygen. He alerted his lieutenant and was ordered to evacuate along with other firefighters. He manned the last nozzle enabling his buddies to escape but was then overcome by smoke and severely burned. He brought suit against Citibank and the other owners, claiming that they were negligent and breached State and City regulations in failing to install a proper fire suppression system. He claimed that the owner was responsible under the statute because those violations brought about his injuries. The statutory predicate for his claim under 205-a was the New York City Building Code, Sections 27-127 and 27-128. Plaintiff also had claimed that the building owner had violated Section 27-4275 which involved the inspection, testing and servicing of the sprinkler equipment in the building. The building had been cited two times before for code violations. Supreme Court, Kings County dismissed and the Second Department affirmed accepting defendant's view that the cause of plaintiff's injuries was not the code violations, but lack of oxygen because he remained in the building too long. Now happily, the Court of Appeals reverses and holds that defendants would be entitled to summary judgment only if they had shown they were not in violation of the code or that the code was not a proximate cause of the injury, placing the burden on such a motion squarely where it should be. The cause of this accident was not the depletion of plaintiff's oxygen, but "it was the result of an act of courage that was part of plaintiff's efforts in battling the blaze." Further, defendant's argument which really was one of comparative negligence which is no defense under GML 205-a. To the extent that the Second Department embraced that argument, it was in error. Therefore, the firefighter's cause of action is sustained.
What about VTL violations as a predicate? In Schiavone v. City of New York, 271 A.D.2d 430, 706 N.Y.S.2d 895 (Second Dept., 2000), it was held that VTL violations can provided a sufficient statutory predicate for a cause of action pursuant to GML 205-e.
What about Administrative Code violations? In Maiello v. City of New York, 273 A.D.2d 284, 709 N.Y.S.2d 855 (Second Dept., 2000), the plaintiff had a viable cause of action pursuant to GML 205-e based upon violation of The Administrative Code of The City of New York 27-127 and 27-128.
What if a condition is alleged to have been breached in an Administrative rule and notice is required? In Bongiovanni v. KMO-361 Realty Associates, 268 A.D.2d 365, 702 N.Y.S.2d 263 (First Dept., 2000), plaintiff firefighter tripped over a discarded piece of pipe in a building that was undergoing renovation. The court impliedly held that notice was required but since the deposition testimony was that the defendants' key personnel were at the site almost daily during the time around the fire, there was an issue of fact as to whether defendants had notice of the debris in the stairwell that they neglected to clear in violation of a N.Y.C.R.R. provision (23-1.7(e)(1)). Similarly in Infante v. City of New York, 266 A.D.2d 230, 690 N.Y.S.2d 484 (First Dept., 1999), claims involving the violation of Administrative Code 27-127 and 27-128 were dismissed because there was no evidence to show that the City had any notice of the accumulation of water on the stairs where the claimant allegedly slipped.
Is causation required between the predicate violation and injury or death? Of course. In Johnson v. Fuller, 268 A.D.2d 158, 699 N.Y.S.2d 348 (First Dept., 1999), plaintiff, a New York City police detective, was injured at a construction site as he attempted to rescue two homeless men from a fire that the men themselves had started allegedly by setting fire to construction debris that had been left at the site. It was undisputed that except for the security contractor left to oversee the area, the site workers were not working over the weekend. Plaintiff brought suit under GML 205-e on the grounds of a violation of Administrative Code 27-1019 requiring that construction site debris be secured and removed, and plaintiff further alleged that the debris used to fuel the fire most probably had come from the site where a particular subcontractor had generated the debris, and that the general contractor failed to remove the debris. There was thus proof raised of triable issues of fact as to whether there was enough proof of knowledge or notice to go to a jury. Notice was discussed in Moore v. Eyzenberg, __ A.D.2d __, 705 N.Y.S.2d 295 (Second Dept., 2000), where the court held that liability is imposed under 205-a in any case where there is a practical or reasonable connection between the statutory or code violation and the injury to the plaintiff.
In Kenavan v. City of New York, 267 A.D.2d 353, 700 N.Y.S.2d 69 (Second Dept., 1999), lv. den. 95 N.Y.2d 756 (2000), the same Kenavan case which had been dismissed in 1987 but re-commenced after the revival statute of 1996, the Appellate Division again dismissed, this time on proximate cause grounds.
Again, in Abbadessa v. City of New York, 269 A.D.2d 341, 702 N.Y.S.2d 869 (Second Dept., 2000), the court held as to proximate cause that the plaintiff must "establish a practical or reasonable connection between the (predicate) violation and the injury or death of the police officer." It did not in this case.
C. The Statutory Cause of Action - Pleading and Amendment of the Pleadings
Sadler v. Town of Hurley, 304 A.D.2d 930, 758 N.Y.S.2d 417 (Third Dept., 2003). Plaintiff was a volunteer firefighter who was injured after falling from a wall surrounding a dam. Plaintiff initially commenced an action alleging that the dam was negligently maintained. Plaintiff served a BOP setting forth the allegations of negligence. However, some seven years later, plaintiff moved to supplement the BOP to add additional theories of liability based upon violations of Town Ordinances, OSHA, and the Uniform Fire Prevention and Building Code. The motion was denied by the Supreme Court, and the Appellate Division affirmed. The delay in seeking to serve the BOP which raises new theories of liability without any excuse for the delay served to prejudice the defendant. The court also justified its reasoning on the ground that the particular ordinances, regulations, and statutes did not apply. It also, for good measure, found that the lower court properly constructed the theory that the defendant had no duty to warn against the condition that was readily observable.
Must the statutory predicate be alleged in the complaint? Yes, or it can be later amended.
Melendez v. City of New York, 271 A.D.2d 416, 706 N.Y.S.2d 132 (Second Dept., 2000). The Second Department effectively overruled Gibbons v. Ostrow, 234 A.D.2d 415, 651 N.Y.S.2d 168 (Second Dept., 1996) which had held that the predicate violation triggering GML 205-e had to be pleaded in the complaint. Here, the court ruled that amendment of the complaint could be effected pursuant to CPLR 3025(b), and because plaintiff was here suing her employer (rendering GOL 11-106 inapplicable) and because the accident occurred while the plaintiff police officer was performing the function of the recorder in a patrol car and while she was at increased risk of being injured in a motor vehicle accident, her common law claims were barred by the firefighter's defense.
Similarly in Sclafani v. City of New York, 271 A.D.2d 430, 706 N.Y.S.2d 129 (Second Dept., 2000), the court held "in an action to recover damages under GML 205-a, the pleadings must specify or identify the statutes, ordinances, rules, orders, or requirements with which the defendant allegedly failed to comply, describe the manner in which the plaintiff's injuries occurred, and must set forth the facts on which it may be inferred that the defendant's negligence directly or indirectly caused harm to the plaintiff" (706 N.Y.S.2d at 130). The court further held that plaintiff should have been permitted to amend since the proposed complaint stated a viable claim and the defendant City "cannot make the requisite showing of significant prejudice" (706 N.Y.S.2d at 130).
Reilly v. City of New York, 271 A.D.2d 425, 706 N.Y.S.2d 124 (Second Dept., 2000). Here, the court held that the trial court improvidently exercised its discretion in refusing to allow the plaintiff to amend the complaint so as to assert a cause of action under GML 205-a where "defendant did not oppose the cross-motion for leave to amend on the ground relied upon by the court." Leave to amend the complaint should be granted even though the cause of action was not specifically mentioned in the notice of claim (706 N.Y.S.2d at 125). D. Overview - Fellow Officer Negligent and Comparative Fault
Gonzalez v. Iocovello and Cosgriff v. City of New York, 93 N.Y.2d 539, 693 N.Y.S.2d 486 (1999). The court held: (1) It would not read a "fellow officer" exception into GML 205-a or 205-e, and these statutes could apply even when the wrong was committed by a fellow employee of the plaintiff; (2) that liability could be premised on a violation of the "reckless disregard" provision regarding emergency operation of authorized vehicles (VTL, Section 1104(e)); (3) that liability could also be premised upon the defendant City of New York's failure to comply with the sidewalk/maintenance requirements of its own Administrative Code.
As we know, Sections 205-a and e provide firefighters and police officers with that special statutory cause of action where such persons are killed or injured during the course of their duties as a direct or indirect result of the defendant's violation of any of "the requirements of the federal, state, county, village, town, or city governments, or any and all their departments, divisions, and bureaus." When the statute applies, recovery cannot be diminished by the plaintiff's own comparative fault. In this case the City argued that GML 205-a and e should not apply where the predicate violation was committed by a fellow employee of the plaintiff, and neither statute, of course, expressly included any such limitation. The City argued that such limitation was implied. The court, by Justice Bellacosa, unanimously rejected that argument stating:
"Despite these consistent legislative actions and developments, the city urges this court to clamp down on General Municipal Law 205-e applications so as to preclude lawsuits derived from fellow officer conduct. GML 205-e contains no such categorical exemption in favor of the City. Indeed, had the Legislature chosen to assert a fellow officer lawsuit block, it had many opportunities to do so over the course of its virtual biennial amendments to the statute - all designed, notably, to benefit officers and to preserve their opportunities for redress in the courts."
"Courts cannot be oblivious to the fact that the Legislature had considered all of the competing angles, advantage, and disadvantage and that it has left the fellow officer lawsuit opportunity untouched in General Municipal Law 205-e -- the section that drives and governs these actions."
The court specifically rejected the City's claim that the "reckless disregard" standard of VTL 1104(e) was too amorphous to trigger GML 205-e liability, the court referring to Desmond v. City of New York, 88 N.Y.2d 455 which stated that "a statute can serve as a predicate when it contains either a particularized mandate or a clear legal duty -- either of these objective standards can suffice, so as long as the governmental standard is a well developed body of law and regulation." The court held that the "reckless disregard" standard was sufficiently clear to serve as a 205-e predicate.
In regard to the City's claim that the City Charter provisions requiring the City to keep its sidewalks in good repair were not a sufficient predicate for a GML 205-e cause of action the court rejected that argument. Even though the provisions at issue placed the burden of paying for repairs on the property owner, City Charter, Section 2903(b)(2), places the ultimate duty to direct or effect repairs squarely on the City. These provisions are a part of a well developed body of law and impose a clear duty on the City to take appropriate steps to keep sidewalks in safe repair.
The above materials are reproduced with the permission of the New York State Trial Lawyers Institute, all rights reserved.
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