Lawrence v. City of New York

• Decision Date: 24 August 1981
• Citation: 447 N.Y.S.2d 506,82 A.D.2d 485
• Parties: Anthony LAWRENCE, Respondent, v. The CITY OF NEW YORK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 506

447 N.Y.S.2d 506

82 A.D.2d 485

Anthony LAWRENCE, Respondent, v. The CITY OF NEW YORK, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 24, 1981.

Allen G. Schwartz, Corp. Counsel, New York City (Trudi Mara Schleifer and Ronald E. Sternberg, New York City, of counsel), for appellant.

Lipsig, Sullivan & Liapakis, P. C., New York City (Michael N. Block and Pamela Anagnos Liapakis, New York City, of counsel), for respondent.

Before TITONE, J. P., and RABIN, MARGETT and WEINSTEIN, JJ.

TITONE, Justice Presiding.

On February 2, 1971, plaintiff was employed as a fireman by the New York City Fire Department. While on a break in the backyard of premises where he and other fire fighters had been fighting a fire in the building thereon, plaintiff was struck by a couch pushed or thrown from the building. On or about February 8, 1972, plaintiff brought the within action against the appellant City of New York (hereinafter the city). An amended complaint was served on or about May 24, 1978.

Although there was some evidence respecting the failure of the city to have had a lookout stationed on the ground below in preparation for defenestration of smoldering items that might reignite the building, the thrust of plaintiff's case at the trial, limited to the issue of liability, was directed toward the alleged negligence of those who threw or pushed the couch from the building.

At the end of the trial, the jury, in response to interrogatories, held that the negligence of the city had been the proximate cause of the accident, and that plaintiff had not been guilty of contributory negligence nor had he assumed the risk of the incident which caused the injuries.

ISSUES RAISED ON APPEAL

Involved in all the points raised on appeal is the common law fellow-servant rule. The rule, stated by the Court of Appeals in Loughlin v. State of New York, 105 N.Y. 159, 162-163, 11 N.E. 371, is summarized as follows:

If the co-servant, whose act caused the injury, was at the time representing the master in doing the master's duty, the master is liable. If, on the other hand, the co-servant was simply performing the work of a servant, merely in his character as a servant or employee, the master is not liable. Moreover, the fact that the person whose negligence caused the injury was a servant of a higher grade than the servant injured, or that the latter was subject to the direction of the former, and was engaged at the time in executing the orders of the former, does not take the case out of the operation of the general rule, nor make the master liable.

On appeal the city asserts that the fellow-servant rule bars the instant action against it by plaintiff. ¹ The plaintiff responds by arguing that assuming the fellow-servant rule is still viable, it is not a bar to the action because (a) the duty to warn plaintiff, under the circumstances, was a nondelegable duty which was breached by the city as his employer, and (b) the jury specifically found that plaintiff did not assume the risks of the occurrence. Plaintiff also contends that the fellow-servant rule, being out of harmony with present day public policy, is obsolete and no longer viable as a bar to an action such as this one.

PLAINTIFF'S PLEADINGS

In paragraph 10 of the original and amended complaints, plaintiff alleged that the accident was caused by the negligence of the city in "negligently and carelessly throwing a couch from the window * * * without any signal, notice or warning to plaintiff of the operations being conducted by the members of the Fire Department * * *; in failing to warn or alert the plaintiff of the fact that the couch was to be thrown from the said window".

TRIAL

The opening statement to the jury by plaintiff's counsel focused upon the negligence of an unknown fire fighter or fire fighters in throwing a couch out of the window without warning persons below. He did not mention or suggest any additional theory concerning the failure of the city to have "traffic" direction at the ground level for items being thrown from the building.

During the trial itself, evidence was adduced that the fire to which plaintiff responded at or about 9:15 A.M. on the date in question, was at a two-story building on East New York Avenue in Brooklyn. After fighting the fire for about half an hour, plaintiff and other fire fighters were directed by their superior, Lieutenant Erhard, to take a standard break outside the building in the backyard. About 5 or 10 minutes after he went to the yard, and while he was removing a tree limb or log which was obstructing the movements of fellow fire fighters, plaintiff was struck without warning by a smoldering sofa thrown or pushed from the building. The blow rendered him unconscious. Other than testimony from plaintiff that proper procedure required the crew to watch out and give warning during defenestration, and Lieutenant Erhard's statement that proper procedure required "probably a man stationed downstairs," there was little significant evidence adduced respecting the existence of anyone who might have been assigned to warn fire fighters of matter being pushed or thrown from the building.

The narrow focus of plaintiff's case, i.e., negligence of fellow fire fighters in throwing or pushing the couch out of the window, was continued by his counsel on summation. According to his counsel, "the plaintiff * * * was injured, not through his own fault, not through anything he assumed, but due to the negligence of a fireman employed by the City of New York." In fact, counsel conceivably repudiated the secondary theory respecting traffic direction from the ground level when he also stated:

"He specifically testified it was improper to simply throw it out without giving any indication. He said what you do is you go--you look outside, certainly, and if men are out, you say to a man, 'Go downstairs and move the men away' or at the very least, you give them a warning.

"Now Mr. Weiler said there was no officer downstairs. You don't need an officer to say 'Fellows, look out. We are going to toss something out of the building.' You don't need an officer to say, 'Come on, guys, let's move away. There is something there that is smoldering.' There is no testimony that this couch was on fire * * *

"Even if it was burning, this was not a blazing inferno; this was a couch. They could have simply said, 'You, Fireman Lawrence, Fireman Murphy, Fireman Grey, move away. We are tossing this couch out of the window.'

"That, I submit, would have been proper procedure. That would have been reasonable * * * was a fireman doing his job, and he got hurt because of the negligence of other firemen, which is what I told you during voir dire when we picked the jury, * * * which is what I'm telling you now, and it's not because I say it, and it's not because Tony Lawrence says it; it's because the evidence compels that finding, the evidence which you are about to consider." (Emphasis supplied.)

TRIAL COURT'S DECISION ON MOTION TO DISMISS

After the jury rendered its verdict in favor of plaintiff on the issue of liability, the trial court, inter alia, denied defendant's motion to set aside the verdict and dismiss the complaint based upon the defense that the plaintiff is barred from recovery under the fellow-servant rule.

DISCUSSION AND DETERMINATION ON APPEAL

At the outset, it should be observed that had plaintiff brought this action within one year of the accident, ² it is conceivable that he would have prevailed because of provisions of subdivision 2 of section 2 of the Employers' Liability Law, to wit:

" § 2. Employers' liability for injuries.

"When personal injury is caused to an employee who is himself in the exercise of due care and diligence at the time:

* * *

* * *

"2. By reason of the negligence of any person in the service of the employer intrusted with any superintendence or by reason of the negligence of any person intrusted with authority to direct control or command any employee in the performance of the duty of such employee, the employee * * * shall have the same right of compensation and remedies against the employer as if the employee had not been an employee of nor in the service of the employer nor engaged in his work."

The intent of subdivision 2 of section 2 of the Employers' Liability Law is that so far as it pertains to the negligence of a superintendent, the fellow-servant doctrine does not apply (Bellegarde v. Union Bag & Paper Co., 90 App.Div. 577, 86 N.Y.S. 72, affd. 181 N.Y. 519, 73 N.E. 1119). The superintendence rule set forth in the statute probably would have inured to plaintiff's benefit had the action been timely brought thereunder, assuming that one of plaintiff's theories of liability was based upon the fire department's failure to have a superior officer direct traffic in the jettisoning of items such as a couch or sofa. Although the record is sparse, and perhaps barren of evidence that such failure was the result of insufficient supervision at the scene of the fire, Lieutenant Erhard did testify at the trial that proper procedure required someone on duty in that capacity. Moreover, in summation, trial counsel for the city conceded the lack of a traffic controller on the scene.

In any event, since the Employers' Liability Law does not apply to this case because of the time bar, in order for plaintiff to prevail on appeal, this court must concur in essence with at least one of the three arguments advanced by plaintiff, to wit: (1) the nondelegable duty of the city as an employer renders the fellow-servant rule inapplicable; (2) the finding of the jury that plaintiff did not assume the risk likewise renders the fellow-servant rule inapplicable; and (3) the fellow-servant rule is no longer viable.

(1) NONDELEGABLE DUTY OF THE CITY

It has been stated as a general rule that personal or absolute duties of a master cannot be delegated by him to a servant so as to relieve himself from liability on the...