Kenavan v. City of New York

• Decision Date: 20 October 1986
• Docket Number: No. 2,No. 3,No. 1,1,2,3
• Citation: 120 A.D.2d 24,507 N.Y.S.2d 193
• Parties: Regina A. KENAVAN, etc., et al., Respondents, v. The CITY OF NEW YORK, et al., Appellants. (Action) Robert VERDONIK, et al., Respondents, v. The CITY OF NEW YORK, et al., Appellants. (Action) Angelo VOLPICELLA, et al., Respondents, v. The CITY OF NEW YORK, et al., Appellants. (Action)
• Court: New York Supreme Court — Appellate Division

Page 193

507 N.Y.S.2d 193

120 A.D.2d 24

Regina A. KENAVAN, etc., et al., Respondents, v. The CITY OF NEW YORK, et al., Appellants. (Action No. 1.)

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

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

Supreme Court, Appellate Division Second Department.

Oct. 20, 1986.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Fay Leoussis and Karen Hutson, of counsel), for appellant City of New York.

Pizzitola & DiBlasi, P.C., Brooklyn (Vincent A. DiBlasi and Lawrence B. Lame, of counsel), for appellant William J. Gardell.

Schneider, Kleinick & Weitz, P.C., New York City (Brian J. Shoot, Harvey Weitz and Charles J. Nolet, Jr., of counsel), for respondents Kenavan, Costello and Ogno.

Lipsig, Sullivan & Liapakis, P.C., New York City (Robert G. Sullivan and Pamela Anagnos Liapakis, of counsel), for respondents Robert and Jean Verdonik.

Kenneth Falk, P.C., New York City (Weinraub & Haines [Sally Weinraub], of counsel), for respondents Angelo and Camille Volpicella.

Before MANGANO, J.P., and BROWN, LAWRENCE and KOOPER, JJ.

PER CURIAM.

On January 24, 1976, at about 8:00 P.M., Engine Company 228 responded to a report of a fire in an abandoned car, which was located in the westbound parking lane of 37th Street, facing toward Seventh Avenue, in Brooklyn, New York. Captain Verdonik, as well as four other firefighters, i.e., firefighters Kenavan, Costello, Ogno and Volpicella, responded to the call. Ogno, the driver, drove the fire truck about 15 to 30 feet past the burning car, and parked in front of it, with the rear of the fire truck protruding slightly into the westbound traffic lane. All of the fire truck's lights were on. After parking the fire truck, Ogno started to regulate the pressure on the water pump, and the other firefighters commenced their firefighting duties. There was quite a large amount of smoke generated by the fire. Captain Verdonik positioned himself in the middle of the street facing east, approximately 12 feet from the front of the burning car, which was to his left, and behind the fire truck. He also held a lantern in his hand which was visible at night from a distance of about 900 feet. Captain Verdonik then started walking east, i.e., towards Ninth Avenue waving the hand lantern and watching the oncoming traffic in order to warn them of the fire in the abandoned car. At this point, the firefighting operation, which had taken about 10 minutes, was winding down. Captain Verdonik noticed a car coming toward him and picking up speed in disregard of the lantern. He tried to warn his fellow firefighters, but it was to no avail. The car, driven by the defendant Gardell, who was later convicted of the crimes of manslaughter and assault, kept coming until it hit all of the firefighters. Firefighter Kenavan died of his injuries about 27 hours later.

Kenavan's estate and the other four injured firefighters, including two of their wives, commenced actions against Gardell and the City of New York. The actions against the City of New York which were tried together were based on theories of common law negligence as well as the independent statutory cause of action contained in General Municipal Law § 205-a. Specifically, it was alleged that the defendant city had placed the firefighters in "a position of danger and jeopardy" by the improper parking of the fire truck, the failure to establish fire lines, and the failure to remove the abandoned car from the street before the fire.

In its charge, at the conclusion of all the evidence, the court instructed the jury with regard to the plaintiffs' theories concerning the city's alleged common-law negligence as follows:

"[P]laintiffs contend that the City of New York is liable because of the * * * failure to remove the abandoned car which caught fire * * *

"Now, the municipality, they [sic] likewise have [sic] a duty. It is to maintain its roadways in reasonable and safe condition for reasonable, foreseeable use. And, a municipality must exercise due care in maintenance of their [sic] roadways.

"If you find that the municipality, the City, had actual or constructive notice of a dangerous condition, such as the vehicle on the roadway, abandoned vehicle on the roadway, it was required to take that action to correct that condition which a reasonably prudent person would have under the same circumstances; and provided it had such notice for a period of time prior to the occurrence, sufficient to permit it in the exercise of reasonable care to correct the danger, now, the City would be liable for the injuries resulting from its failure to do so * * * "Another contention that the City is liable because of Captain Verdonik's failure to set up fire lines.

"And, three, another contention * * * that the City was liable for the actions of Fireman Ogno when he failed to place the truck in a proper position to insure the safety of himself and his men".

The court left it to the jury to decide whether the conduct of Captain Verdonik and Ogno in parking the truck and failing to set up firelines was a question of professional judgment, for which the city could not be held liable. With regard to the plaintiffs' common-law causes of action, the jury was instructed on the principles of constructive and actual notice as well as proximate cause.

The court also instructed the jury with regard to the plaintiffs' independent statutory cause of action under General Municipal Law § 205-a. That statute provides, in pertinent part, that a firefighter has an independent statutory cause of action to recover damages for injuries or wrongful death caused "directly or indirectly as a result of any neglect * * * 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". In this regard, the court instructed the jury that it could consider the city's alleged failure to comply with Vehicle and Traffic Law § 1224, Administrative Code of the City of New York (ch. 31) § 755[4]-3.0[a], and General Order No. 5 of the New York City Department of Sanitation, which contain guidelines and procedures regarding the removal of abandoned cars from the city's streets. The court also instructed the jury that (1) under General Municipal Law § 205-a, the violation of any of these aforenoted legal requirements would result in liability if the violation was a direct or even an indirect cause of the accident, and (2) proximate cause was not a required element with respect to the statutory cause of action.

The jury was given a verdict sheet which contained the following questions under the heading "Common Law Action".

"1. Was the defendant, City of New York, negligent in failing to remove the abandoned car, and if so, was that negligence a proximate cause of the accident?

"2. Was the defendant, City of New York negligent in failing to establish 'Fire Lines', and if so, was that negligence a proximate cause of the accident?

"3. Was the defendant, City of New York negligent in failing to park the truck properly, and if so, was that negligence a proximate cause of the accident?

"4. Was the defendant, Gardell, negligent in the operation and control of his vehicle, and if so, was that negligence a proximate cause of the accident?

"5. Were * * * plaintiffs Ogno and Volpicella negligent, and if so, was that negligence a proximate cause of the accident?

"6. If your answers are 'yes' to questions 1, 2, 3, 4, or 5, then set forth the percentage of negligence of the parties named below, so that the sum adds up to 100%".

Under the heading "Statutory Cause of Action", the verdict sheet contained the following:

"1. Did the defendant, City of New York, violate Section 1224 of the New York State Vehicle and Traffic Law; or Section 755(4)3.0 of the City Administrative Code; or Department of Sanitation General Order # 5, and if so, was the violation a direct or indirect cause of the occurrence?"

The jury, in a unanimous finding, determined that the city was negligent in failing to remove the abandoned vehicle, failing to establish fire lines, and failing to park the fire truck properly, and that each of these acts of negligence was a proximate cause of the accident. It also determined that the plaintiffs Ogno and Verdonik and defendant Gardell were guilty of negligence which was a proximate cause of the accident. It apportioned 70% of the culpability to the city, 20% to Gardell, 6% to Ogno and 4% to Verdonik. Finally, the jury found the city liable on the statutory cause of action.

The plaintiffs' causes of action against the city should have been dismissed as a matter of law, prior to their submission to the jury.

We first turn to the plaintiffs' theory that the defendant city was liable in common-law negligence in failing to remove the abandoned car. It is true that a municipality has a duty to keep public streets and sidewalks in a safe condition so that vehicular traffic and pedestrians may traverse them without fear of injury (see, D'Ambrosio v. City of New York, 55 N.Y.2d 454, 450 N.Y.S.2d 149, 435 N.E.2d 366; Green v. State of New York, 71 A.D.2d 761, 419 N.Y.S.2d 313; O'Neill v. City of Port Jervis, 253 N.Y. 423, 171 N.E. 694). However, in the case at bar, no liability may be imposed upon the city since there was no evidence adduced that any dangerous condition impeding pedestrian or vehicular traffic existed. The abandoned car was not in the middle of the street or on the sidewalk. At all times it was parked in a lawful parking space and did not constitute a hinderance to motorists or pedestrians. Although the record supports a finding that the city had constructive notice of the abandoned car and failed to remove it, it is well established that "[p]ublic entities remain immune from...