Gammons v. City of N.Y.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PETER B. SKELOS
• Citation: Gammons v. City of N.Y., 2013 NY Slip Op 5298, 109 A.D.3d 189, 972 N.Y.S.2d 559 (N.Y. App. Div. 2013)
• Decision Date: 17 July 2013
• Parties: Allison GAMMONS, respondent-appellant, v. CITY OF NEW YORK, et al., appellants-respondents.

109 A.D.3d 189

972 N.Y.S.2d 559

2013 N.Y. Slip Op. 05298

Allison GAMMONS, respondent-appellant,

v.CITY OF NEW YORK, et al., appellants-respondents.

Supreme Court, Appellate Division, Second Department, New York.

July 17, 2013.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath, Margaret G. King, and Michael Shender of counsel), for appellants-respondents.

Oshman & Mirisola, LLP, New York, N.Y. (David L. Kremen of counsel), for respondent-appellant.

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

LEVENTHAL, J.

On this appeal, we consider, among other things, whether the decision of the Court of Appeals in Williams v. City of New York, 2 N.Y.3d 352, 779 N.Y.S.2d 449, 811 N.E.2d 1103 warrants a departure from our holding in Balsamo v. City of New York, 287 A.D.2d 22, 733 N.Y.S.2d 431. Stated differently, we primarily address the issue of whether Labor Law § 27–a(3)(a)(1) constitutes a sufficient statutory predicate for a police officer's cause of action to recover damages pursuant to General Municipal Law § 205–e even though Labor Law § 27–a does not provide for a private right of action. For the reasons discussed below, we adhere to our determination in Balsamo, and conclude that Labor Law § 27–a(3)(a)(1) can constitute a sufficient statutory predicate for a police officer's cause of action to recover damages pursuant to General Municipal Law § 205–e.

The plaintiff was employed as a police officer by the New York City Police Department (hereinafter the NYPD). In September 2008, while on duty, she allegedly was injured when she fell from a police flatbed truck while loading wooden police barriers onto it. The plaintiff thereafter commenced this action against the City of New York and the NYPD to recover damages for common-law negligence and pursuant to General Municipal Law § 205–e, predicated upon a violation of Labor Law § 27–a, which sets forth safety and health standards for public employees.

At her deposition, the plaintiff testified that on September 18, 2007, she was assigned to “barrier truck detail.” Her duties that day were to load a police flatbed truck with wooden barriers and to take the barriers to certain locations around the city. The plaintiff and a fellow officer were positioned on the truck and received the barriers that were pushed up onto the truck by two other officers. Describing the accident, the plaintiff stated that while she was standing at the rear of the truck, holding one end of a wooden barrier with both hands, the second officer gave the beam a hard push, causing the end of the barrier to make contact with the plaintiff's chest. The plaintiff fell backwards off the rear of the truck onto the street, sustaining injuries.

The plaintiff further testified that the truck on which she was working was equipped with side railings that were approximately three feet high; however, there was no railing on the rear of the truck. She added that, at the time of the accident, the NYPD had newer flatbed trucks which were longer than the subject flatbed truck, and had a backing in the rear to enclose them. According to the plaintiff, the shorter, older flatbed truck on which she was working could not accommodate two officers and the wooden barriers because the barriers were longer than the truck's bed. However, the newer, longer flatbed trucks could accommodate two officers and the wooden barriers.

Following discovery, the defendants moved for summary judgment dismissing the complaint. The defendants argued that the so-called “firefighter rule” ( seeGeneral Obligations Law § 11–106[1] ) barred the common-law negligence cause of action, and that the cause of action to recover damages based upon a violation of General Municipal Law § 205–e should be dismissed because Labor Law § 27–a was not a proper statutory predicate for a General Municipal Law § 205–e cause of action. In support of their position that the General Municipal Law § 205–e cause of action should be dismissed, the defendants contended that Labor Law § 27–a did not provide a private right of action to recover damages for personal injuries. Rather, the defendants asserted that the sole remedy for an alleged Labor Law § 27–a(3)(a)(1) violation is an administrative proceeding commenced by the Commissioner of the New York State Department of Labor. In the alternative, the defendants maintained that even if Labor Law § 27–a(3)(a)(1) were a proper predicate, the truck was not a “recognized hazard” as defined by that statute, since the truck was not defective.

In opposition, the plaintiff argued that the firefighter rule did not bar her common-law negligence cause of action because she was not injured as a result of a heightened risk associated with a police function. Moreover, the plaintiff argued that Labor Law § 27–a(3)(a)(1) was a proper statutory predicate for the General Municipal Law § 205–e cause of action, and that a fall from a truck was a “recognized hazard” pursuant to that statute. Alternatively, the plaintiff argued that the defendants violated Labor Law § 27–a(3)(a)(2) and 29 CFR 1910.23(c)(1) by failing to equip the back of the truck with a railing. In addition, the plaintiff requested that the court search the record ( seeCPLR 3212[b] ) and award her summary judgment on the issue of liability on the General Municipal Law § 205–e cause of action.

The Order Appealed From

In an order dated February 25, 2011, the Supreme Court granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages for common-law negligence. The court determined that at the time of the accident, the plaintiff was engaged in an act in furtherance of a specific police function which exposed her to a heightened risk of falling off the rear of the flatbed truck, and, because of the firefighter rule, the plaintiff could not recover damages for common-law negligence. However, the court denied that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages pursuant to General Municipal Law § 205–e. The court held that based upon precedent from this Court, Labor Law § 27–a(3)(a)(1) may serve as a proper predicate for a cause of action alleging a violation of General Municipal Law § 205–e.

The defendants appeal, the plaintiff cross-appeals, and we affirm.

Common–Law Negligence

On her cross appeal, the plaintiff argues that the firefighter rule does not preclude recovery because at the time of her accident, she was loading a flatbed truck, not performing a task which exposed her to the heightened risks of police work. The plaintiff asserts that her duties merely furnished the occasion for her accident, but did not heighten the risk of injury.

At common law, the so-called firefighter rule barred recovery in negligence for injuries sustained by a firefighter in the line of duty ( see Santangelo v. State of New York, 71 N.Y.2d 393, 397, 526 N.Y.S.2d 812, 521 N.E.2d 770 [“as a matter of public policy firefighters trained and compensated to confront such dangers must be precluded from recovering damages for the very situations that create a need for their services”] ). In the 1988 decision in Santangelo, 71 N.Y.2d at 397–398, 526 N.Y.S.2d 812, 521 N.E.2d 770, the Court of Appeals, for the first time, extended the firefighter rule to police officers ( see Cooper v. City of New York, 81 N.Y.2d 584, 601 N.Y.S.2d 432, 619 N.E.2d 369). Since 1996, the rule has been applicable only in actions against a “police officer's or firefighter's employer or co-employee” (General Obligations Law § 11–106[1] ).

Today, the firefighter rule provides that “[p]olice and firefighters may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment” ( Wadler v. City of New York, 14 N.Y.3d 192, 194, 899 N.Y.S.2d 73, 925 N.E.2d 875 [internal quotation marks omitted] ). The rule bars a police officer's or a firefighter's recovery “ ‘when the performance of his or her duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury’ ” ( id. at 194–195, 899 N.Y.S.2d 73, 925 N.E.2d 875, quoting Zanghi v. Niagara Frontier Transp. Commn., 85 N.Y.2d 423, 436, 626 N.Y.S.2d 23, 649 N.E.2d 1167).

In Zanghi, the Court of Appeals explained the application of the firefighter rule:

“[W]here some act taken in furtherance of a specific police or firefighting function exposed the officer to a heightened risk of sustaining the particular injury, he or she may not recover damages for common-law negligence. By contrast, a common-law negligence claim may proceed where an officer is injured in the line of duty merely because he or she happened to be present in a given location, but was not engaged in any specific duty that increased the risk of receiving that injury. For example, if a police officer who is simply walking on foot patrol is injured by a flower pot that fortuitously falls from an apartment window, the officer can recover damages because nothing in the acts undertaken in the performance of police duties placed him or her at increased risk for that accident to happen. On the other hand, if an officer is injured by a suspect who struggles to avoid an arrest, the rule precludes recovery in tort because the officer is specially trained and compensated to confront such dangers” ( id. at 439–440, 626 N.Y.S.2d 23, 649 N.E.2d 1167).

In

Wadler v. City of New York, 14 N.Y.3d at 196, 899 N.Y.S.2d 73, 925 N.E.2d 875, the Court of Appeals applied the principles enunciated in Zanghi to conclude that the firefighter rule barred a police officer's common-law negligence cause of action. In Wadler, the police officer was injured by a concrete, security barrier-gate in a police parking lot. The gate had been lowered to permit the officer to pass, but while the officer was driving his vehicle...