Clark v. DeJohn

• Decision Date: 19 November 1993
• Citation: 198 A.D.2d 818,603 N.Y.S.2d 1008
• Parties: Earl CLARK and Christine Clark, Respondents, v. Virginia A. De JOHN, Frank T. De John, Ronald J. Pullen, Individually and d/b/a Pullen's Truck Center, Glenn A. Donnelly, Individually and d/b/a Speedway Specialty Sales, Drivers' Independent Race Tracks, Inc., Elsenheimer Chevrolet, Inc., Individually and d/b/a Elsenheimer Wrecker Sales, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 1008

603 N.Y.S.2d 1008

198 A.D.2d 818

Earl CLARK and Christine Clark, Respondents, v. Virginia A. De JOHN, Frank T. De John, Ronald J. Pullen,

Individually and d/b/a Pullen's Truck Center, Glenn A.

Donnelly, Individually and d/b/a Speedway Specialty Sales,

Drivers' Independent Race Tracks, Inc., Elsenheimer

Chevrolet, Inc., Individually and d/b/a Elsenheimer Wrecker

Sales, Appellants.

Supreme Court, Appellate Division,

Fourth Department.

Nov. 19, 1993.

Meggesto & Badera by Kimberly Scimbaugh, Syracuse, for appellants, Virginia A. De John and Frank T. De John.

Hiscock & Barclay by John Devenport, Syracuse, for appellants, Glenn A. Donnelly, Indv. and d/b/a Speedway Specialty.

D. Jeffrey Gosch, Syracuse, for appellant, Ronald J. Pullen, Indv., and d/b/a Pullen's Truck Center.

Sugarman, Wallace, Manheim & Schoenwald by Mary Keib Smith, Syracuse, for appellant, Elsenheimer Chevrolet, Indv., and d/b/a Elsenheimer Wreck.

Michaels & Bell, P.C. by Paul Campbell, Auburn, for respondents, Earl Clark and Christine Clark.

Before PINE, J.P., and LAWTON, FALLON, DOERR and DAVIS, JJ.

MEMORANDUM:

Plaintiff Earl Clark (plaintiff), while on duty as a Cayuga County Deputy Sheriff, was called to the scene of an accident where a car had gone off the road and come to rest upon a guardrail. Plaintiff was standing in the rear of the tow truck when the tow truck operator managed to free the car from the guardrail. The car swung out, forcing plaintiff into the road, where he was struck by a passing vehicle. As a result of his injuries, plaintiff was granted disability retirement.

Plaintiff commenced this action seeking damages for the personal injuries he suffered as a result of being struck by the car, and his wife asserted a derivative cause of action. Supreme Court denied the motions of defendants to dismiss the complaint based upon the "fireman's rule", made applicable to police officers in Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770. Supreme Court concluded that the negligence that had caused plaintiff's injuries was "separate and distinct" from the circumstances that brought him to the scene in the first instance (see, Germain v. Cherico, 178 A.D.2d 461, 576 N.Y.S.2d 890).

In Cooper v. City of New York, 81 N.Y.2d 584, 590, 601 N.Y.S.2d 432, 619 N.E.2d 369, the Court of Appeals rejected the "separate and distinct" exception to the Santangelo rule, concluding that the lack of connection between the negligence that...