Kenavan v. City of New York

• Decision Date: 25 November 1987
• Docket Number: No. 3,No. 2,No. 1,1,2,3
• Citation: 523 N.Y.S.2d 60,70 N.Y.2d 558,517 N.E.2d 872
• Parties: , 517 N.E.2d 872 Regina A. KENAVAN, as Administratrix of the Estate of Joseph A. Kenavan, et al., Appellants, v. CITY OF NEW YORK, Respondent, et al., Defendant. (Action) Robert VERDONIK et al., Appellants, v. CITY OF NEW YORK, Respondent, et al., Defendant. (Action) Angelo VOLPICELLA et al., Appellants, v. CITY OF NEW YORK, Respondent, et al., Defendant. (Action)
• Court: New York Court of Appeals Court of Appeals

Page 60

523 N.Y.S.2d 60

70 N.Y.2d 558, 517 N.E.2d 872

Regina A. KENAVAN, as Administratrix of the Estate of Joseph

A. Kenavan, et al., Appellants, v. CITY OF NEW YORK, Respondent, et al., Defendant. (Action No. 1.)

Robert VERDONIK et al., Appellants, v. CITY OF NEW YORK, Respondent, et al., Defendant. (Action No. 2.)

Angelo VOLPICELLA et al., Appellants, v. CITY OF NEW YORK, Respondent, et al., Defendant. (Action No. 3.)

Court of Appeals of New York.

Nov. 25, 1987.

Brian J. Shoot and Harvey Weitz, New York City, for appellants in the first above-entitled action.

Robert G. Sullivan, New York City, Stephen C. Glasser, Brooklyn, Pamela Anagnos Liapakis and Michael N. Block, New York City, for appellants in the second above-entitled action.

Sally Weinraub, White Plains, and Kenneth Falk, New York City, for appellants in the third above-entitled action.

Peter L. Zimroth, Corporation Counsel (Karen Hutson and Fay Leoussis, New York City, of counsel), for respondent in the first, second and third above-entitled actions.

OPINION OF THE COURT

ALEXANDER, Judge.

On January 24, 1976, at approximately 8:00 in the evening, plaintiffs, Ogno, Kenavan, Costello and Volpicella, under the supervision of Captain Verdonik--all members of the New York City Fire Department--were dispatched to extinguish a fire that had ignited in a vehicle abandoned on 37th Street between 7th and 9th Avenues in the Sunset Park section of Brooklyn. Upon reaching the scene, Ogno, the chauffeur, pulled the fire engine past the abandoned car and parked. While his team doused the fire, Captain Verdonik positioned himself in the middle of the road, parallel to the burning car, waving a lantern to warn oncoming traffic. Despite the light from Verdonik's lantern and from the fire engine, heavy smoke from the burning car reduced visibility between the fire operation and the oncoming traffic. Within minutes, the firefighters had brought the fire under control; at that moment--or perhaps seconds later--Verdonik saw a pair of headlights bearing down on him and his fellow firefighters. When the headlights appeared to accelerate rather than slow down, Verdonik turned to warn his crew, but to no avail. The approaching vehicle, driven by defendant Gardell, ^* continued headlong into the cloud of smoke striking Verdonik and each of the other firefighters, and crashed into the back of the fire engine. Four of the firefighters were seriously injured and one, Kenavan, was killed. Gardell, who was convicted by a jury of reckless manslaughter and assault prior to the instant civil suit, testified that he never saw a fire engine, lights or any firefighters.

Plaintiffs brought these actions, asserting liability against the City under General Municipal Law § 205-a, under common-law negligence for having failed to remove the abandoned car, and under common law for the negligence of Ogno in failing to properly park the fire truck, and of Verdonik in failing to establish "fire lines" to protect the fire crew from oncoming traffic. At the close of evidence, the City's motion to dismiss the complaints was denied, and the case was submitted to the jury. The jury unanimously found the City liable, apportioning culpability 70% to the City, 20% to Gardell, 4% to Verdonik, and 6% to Ogno. Insofar as relevant on this appeal, the Appellate Division reversed the judgment on the law and the facts and dismissed the actions against the City. For the reasons that follow, we now affirm.

Plaintiffs argue that the Appellate Division erred in dismissing their cause of action against the City under General Municipal Law § 205-a which provides in part that: "In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury [or] death * * * directly or indirectly as a result of any * * * negligence of any person * * * 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 * * * guilty of said neglect * * * shall be liable to pay any * * * employee of any fire department injured * * * while in the discharge * * * of any duty imposed by the * * * superior officer". According to plaintiffs, the City failed to remove the abandoned car in violation of Vehicle and Traffic Law § 1224, Administrative Code of the City of New York, chapter 31, § 755(4)-3.0(a), and General Order No. 5 of the New York City Department of Sanitation--all of which impose a duty on the City to promptly remove abandoned vehicles from the roadways--and these violations resulted "directly or indirectly" in their injuries, triggering liability under section 205-a. Relying on McGee v. Adams Paper & Twine Co., 26 A.D.2d 186, 271 N.Y.S.2d 698, affd. 20 N.Y.2d 921, 286 N.Y.S.2d 274; 233 N.E.2d 289, the Appellate Division rejected this argument, holding that those "legal requirements are not fire preventive in nature" and that recovery under General Municipal Law § 205-a is limited to instances where a "fire preventive" provision was violated (120 A.D.2d 24, 33, 507 N.Y.S.2d 193).

At common law, firefighters were held to have assumed the risks of their profession and were denied recovery for injuries sustained while combatting fires even though the owner of the premises on which the fire occurred was negligent in creating the condition that caused the accident (see, McAvoy v. Di Leo, 40 Misc.2d 46, 47-48, 242 N.Y.S.2d 682 [County Ct], revd. 43 Misc.2d 164, 250 N.Y.S.2d 444 [App Term, 2d Dept] ). In an attempt to ameliorate the harsh result of the common-law rule, the Legislature enacted General Municipal Law § 205-a (L.1935, ch. 800, as amended by L.1936, ch. 251), with the intention of creating a cause of action where otherwise there would be no right of recovery for the injury or death of a firefighter (see, McGee v. Adams Paper & Twine Co., 26 A.D.2d 186, 195, 271 N.Y.S.2d 698, supra; Healy v. Rennert, 33 Misc.2d 897, 226 N.Y.S.2d 876, affd. 20 A.D.2d 682, 246 N.Y.S.2d 1017; Burigo v. Di Leo, 38 Misc.2d 851, 239 N.Y.S.2d 166). Plaintiffs argue that under the plain language of the statute, the violation of any statute, ordinance, rule or order--including a violation of the Vehicle and Traffic Law--is sufficient to sustain liability under section 205-a. Although General Municipal Law § 205-a, as a remedial statute, is to be construed liberally (see, McGee v. Adams Paper & Twine Co., 26 A.D.2d 186, 194, 271 N.Y.S.2d 698, supra ), we conclude that the intended scope of the enactment is not so far-reaching. Section 205-a authorizes in broad language recovery for injury to a firefighter caused by the violation of any provision. The causation requirement is best understood by tracing section 205-a to its origin, section 761 of the Greater New York Charter (L.1901, ch. 466), which provided in language similar to that of section 205-a: "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. And for any accident or injury * * * resulting directly or indirectly from any neglect or omission to properly comply with any of the requirements of this section, the person * * * negligent in respect thereto shall be liable to pay any * * * employee of said fire department injured" (originally enacted as L.1882, ch. 410, § 453). This statutory antecedent compels the conclusion that the scope of section 205-a is limited to property owners and the maintenance of premises in a safe condition for firefighters (see, Citowitz v. City of New York, 77 A.D.2d 642, 430 N.Y.S.2d 135; Gerhart v. City of New York, 56 A.D.2d 790, 393 N.Y.S.2d 6, lv. denied 42 N.Y.2d 810, 399 N.Y.S.2d 1025, 369 N.E.2d 774; Carroll v. City of New York, 37 Misc.2d 563, 569, 234 N.Y.S.2d 954).

Although section 205-a is not to be construed as broadly as plaintiffs urge, the interpretation articulated by the Appellate Division unduly restricts recovery under the statute to violations of only fire preventive provisions. This narrow interpretation is not required by McGee, which held in this regard only that the alleged violations involved there either could not be said to have proximately caused the firefighters' injuries, or did not constitute violations at all. Rather, in view of its history, it is clear that General Municipal Law § 205-a created a statutory cause of action--where none existed at common law--for firefighters who sustain injuries while engaged in extinguishing a fire on premises wherein the owner or other person in control negligently failed to comply with the requirements of some statute, ordinance, or rule respecting the maintenance and safety of such premises. Thus, the statute affords firefighters protection from those premises harboring violations of safety provisions that create hazards additional to those that firefighters already face in their profession. The scope of the statute therefore may include, but is not limited to, violations of fire preventive regulations (see, e.g., Carroll v. Pellicio Bros., 44 Misc.2d 832, 255 N.Y.S.2d 771, mod 26 A.D.2d 552, 271 N.Y.S.2d 7, appeal dismissed 18 N.Y.2d 708, 274 N.Y.S.2d 144, affd. 19 N.Y.2d 658, 278 N.Y.S.2d 626, 225 N.E.2d 217 [violation of ordinance prohibiting bonfires]; Nykanen v. City of New York, 14 N.Y.2d 697, 250 N.Y.S.2d 53, 199 N.E.2d 155, affg. no opn. 19 A.D.2d 535, 240 N.Y.S.2d 67 [missing guardrails in stairwells]; Mazelis v. Wallerstein, 51 A.D.2d 579, 378 N.Y.S.2d 750 [violation of code requiring removal of building in danger of collapse]; Lyden v. Rasa, 39 A.D.2d 716, 331 N.Y.S.2d 982 [violation of fire escape...