Brown v. Ellis

• Decision Date: 09 November 1989
• Citation: 145 Misc.2d 1085,548 N.Y.S.2d 841
• Parties: Roger F. BROWN and Eileen M. Brown, Plaintiffs, v. Kathleen M. ELLIS, Rosalia A. Harrington, and Joseph Harrington, Defendants and Third-Party Plaintiffs. The City of New York, Third-Party Defendant.
• Court: New York City Court

Page 841

548 N.Y.S.2d 841

145 Misc.2d 1085

Roger F. BROWN and Eileen M. Brown, Plaintiffs, v. Kathleen M. ELLIS, Rosalia A. Harrington, and Joseph

Harrington, Defendants and Third-Party Plaintiffs.

The City of New York, Third-Party Defendant.

Civil Court of the City of New York,

Richmond County, Special Term,

Part 1.

Nov. 9, 1989.

[145 Misc.2d 1086] Stuart Goldstein, New York City, for plaintiffs.

Pizzatola & DiBlasi by Ken Madden, Brooklyn, for defendants and third-party plaintiffs.

Peter L. Zimroth, Corp. Counsel, by Janet C. Colletti, New York City, for City of New York, third-party defendant.

FRANK V. PONTERIO, Judge.

On July 31, 1985 plaintiff Roger Brown was on duty as a New York City police officer, assigned to speed enforcement in an unmarked car. During his pursuit of a speeding violator, defendant Ellis, a collision took place between the vehicles of defendant Ellis and co-defendant Harrington. To avoid this accident in front of him, plaintiff swerved and collided with a utility pole, suffering concededly severe injuries.

Defendant Harrington now moves for summary judgment dismissing the complaint under the "fireman's rule" as first applied to police officers by the Court of Appeals in Santangelo v. State, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770 (1988). Santangelo holds that as a matter of public policy police officers cannot recover damages for injuries sustained in the line of duty. Id., at 397, 526 N.Y.S.2d 812, 521 N.E.2d 770.

Plaintiffs' response is twofold: First, the plaintiffs have a separate, statutory cause of action under recently enacted General Municipal Law 205-e, which plaintiff argues is retroactive.

Second, he argues in the alternative that even if GML 205-e is not retroactive the facts of this case are sufficiently distinguishable from those in Santangelo to take it out of the Santangelo rule.

DEVELOPMENT OF THE LAW

Before confronting the parties' arguments, a review of the development of the applicable law is in order. Since the law governing the right of police officers to recover for job-related injuries in some respects parallels that applicable to firefighters, we begin with the evolution of the "fireman's rule."

At one time in this state, firefighters could sue for line-of-duty injuries against negligent tortfeasors, subject to a defense that as licensees a lesser duty of care was owed to them. See Prosser and Keeton, Torts sec. 61, at 429, 5th ed.; Annotation, Liability of Owner or Occupant of Premises to Fireman Coming Thereon in Discharge of His Duty, 11 ALR 4th 597. Later cases added a defense to liability based on an assumption of risk theory, i.e., firefighters were said to assume the risks of fire-related injuries, including the risk of negligent property owners and occupants in failing to maintain the safety of their premises. McGee v. Adams Paper & Twine Co., 26 A.D.2d 186, 271 N.Y.S.2d 698 (1st Dept.1966). Similarly, police officers could sue those whose negligence caused their on-duty injuries, subject to the heavy burden of proving that the danger causing the injury was not a usual or foreseeable risk assumed in the course of their employment and also proving freedom from contributory negligence. Moore v. City of Yonkers, 6 A.D.2d 712, 174 N.Y.S.2d 680 (2d Dept.1958), appeal dismissed 5 N.Y.2d 765, 179 N.Y.S.2d 858, 154 N.E.2d 138, Fitzsimons v. Isman, 166 App.Div. 262, 151 N.Y.S. 552 (1st Dept.1915), aff'd 219 N.Y. 610; Xenodochius v. Fifth Avenue Coach Co., 129 App.Div. 26, 113 N.Y.S. 135 (2d Dept.1908). In Moore a patrolman was injured when his motorcycle struck a hole in a city street. The Second Department denied defendant's motion to dismiss the complaint finding that an issue of fact was presented, viz., whether the patrolman assumed the risk created by a particularly "deep and dangerous hole." (Supra, at 713, 174 N.Y.S.2d 680. Both Fitzsimons and Xenodochius dealt with the contributory negligence issue for a police officer struck by an automobile while engaged in traffic duty.

The fireman's rule was partly abrogated by Section 761 of the Greater New York Charter (L.1901, ch. 466, originally enacted as L.1882, ch. 410, para. 453). This charter provision gave firefighters a limited right of action against property owners and occupants whose negligence in failing to secure certain hazardous openings in business premises led to injury. The Greater New York Charter provided in pertinent part:

Hoistways, iron shutters, etc., to be closed.

Sec. 761. All hoistways, well-holes, trap doors, and iron shutters shall be closed at the completion of the business of each day by the occupant of the building have use or control of the same, and in case of a violation of this provision, such occupant having the use or control thereof shall forfeit and pay a penalty of fifty dollars for each and every neglect or omission so to do. And for any accident or injury to life or limb, resulting directly or indirectly from any neglect or omission to properly comply with any of the requirements of this section, the person or persons culpable or negligent in respect thereto shall be liable to pay any officer, agent, or employee of said fire department injured, or whose life may be lost while in the discharge or performance of any duty imposed by said commissioner, or to the wife and children, or to the parents, or to the brothers and sisters, being the surviving heirs-at-law of any deceased person thus having lost his life, a sum of money, in case of injury to person, not less than one thousand dollars, and in the case of death not less than five thousand dollars, such liability to be determined and such sums recovered in an action to be instituted by any person injured, or the family or relatives of any person killed as aforesaid.

This Section was in part penal in nature as is evident from the penalty provision within the section as well as relevant provisions in Section 773 (as added by L.1897, ch. 378): "Any person who shall wilfully violate, or neglect or refuse to comply with any provision or requirement of this title, or any regulation, order or special direction duly made thereunder, shall also be guilty of a misdemeanor" (see also, L.1882, ch. 410, para. 465). Thus the Greater New York Charter sought to assure the safety of firefighters on premises through the threat of both criminal and civil liability of property owners and occupants.

The civil remedy afforded by Sec. 761, applicable only to firefighters within the then newly consolidated City of New York, was extended statewide by the Legislature in 1935 with the enactment of General Municipal Law 205-a, which, as amended (L.1935, c. 800, para. 2, amended by L.1936, c. 251, para. 1), provides:

Sec. 205-a

. Additional right of action to certain injured

or representatives of certain deceased

firemen.

In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any fire department injured, or whose life may be lost while in the discharge or performance of any duty imposed by the fire commissioner, fire chief or other superior officer of the fire department, or to pay to the wife and children, or to pay to the parents, or to pay to the brothers and sisters, being the surviving heirs-at-law of any deceased person thus having lost his life, a sum of money, in case of injury to person, not less than one thousand dollars, and in case of death not less than five thousand dollars, such liability to be determined and such sums recovered in any action to be instituted by any person injured or the family or relatives of any person killed as aforesaid.

Concurrently, the civil right of action provision was deleted from section 761 of the Greater New York Charter, which thereafter provided simply:

Hoistways, iron shutters, et cetera, to be closed.

Sec. 761. All hoistways, well-holes, trap-doors, and iron shutters shall be closed at the completion of the business of each day by the occupant of the building having use or control of the same, and in case of a violation of this provision, such occupant having the use or control thereof shall forfeit and pay a penalty of fifty dollars for each and every neglect or omission so to do. (As amended by L.1935, ch. 800, para. 1.)

Aside from extending the applicability of this statutory right of action statewide, GML 205-a seemed to change its scope of protection. The original charter section 761 and GML 205-a are virtually identical with one noteworthy exception. Whereas section 761 provided a right of action only for the failure of one in control of business premises to close hoistways, well-holes, trap doors, and iron shutters, GML 205-a provides a right of action for injuries resulting from a failure of any person to comply with any statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus. This significant change in wording would appear to be an unmistakable signal that the Legislature intended GML 205-a to have a much broader scope of protection than Section 761 of the Charter, i.e., not limited to on-premises injuries and property owners and occupants. See Healy v. Rennert, 9 N.Y.2d 202, 213 N.Y.S.2d 44, 173 N.E.2d 777 (1961) (recovery by a fireman for injuries sustained in an intersection...