Maines v. Cronomer Valley Fire Dept., Inc.

• Citation: 50 N.Y.2d 535,429 N.Y.S.2d 622,407 N.E.2d 466
• Parties: , 407 N.E.2d 466 Kenneth MAINES, Appellant, v. CRONOMER VALLEY FIRE DEPT., INC. et al., Defendants, and Dale Kluger et al., Respondents.
• Decision Date: 12 June 1980
• Court: New York Court of Appeals

Page 622

429 N.Y.S.2d 622

50 N.Y.2d 535, 407 N.E.2d 466

Kenneth MAINES, Appellant, v. CRONOMER VALLEY FIRE DEPT., INC. et al., Defendants, and Dale Kluger et al., Respondents.

Court of Appeals of New York.

June 12, 1980.

Sheila Callahan, Newburgh, and Howard Karger, New City, for appellant

Bertram W. Eisenberg, Liberty, for Dale Kluger, respondent.

Monte J. Rosenstein, for Stewart Stellwagon, respondent.

Joseph L. Canino, Poughkeepsie, for Mike Presutti, respondent.

John E. Boeggeman and Kevin D. Moloney, White Plains, for Francis Wrightmeir, respondent.

Joseph A. Catania, Jr., Newburgh, for Richard Patterson, respondent.

OPINION OF THE COURT

MEYER, Judge.

Section 19 of the Volunteer Firemen's Benefit Law does not bar an action by an injured fireman plaintiff who has accepted compensation benefits against defendant fellow fireman whose injury-causing acts were outside the scope of defendants' employment. The order of the Appellate Division, 65 A.D.2d 768, 410 N.Y.S.2d 533, affirming dismissal of plaintiff Maines' complaint should, therefore, be reversed insofar as appealed from, ¹ with costs, and summary judgment as to the individual defendants should be denied. ²

The papers on defendants' motions to dismiss establish that on June 12, 1975 plaintiff attended the regular monthly meeting of the Cronomer Valley Fire Department at the company meeting hall, during part of which he and another junior fireman were inducted as senior members. After the meeting formally ended plaintiff remained in the building with others for at least an hour to watch a game of cards. Another group of volunteer firemen left the meeting hall and went to a different building on the premises, referred to as the truckhouse. At about 11:30 p. m. one of the firemen returned from the truckhouse and told plaintiff to come with him because one of the members wanted to speak with him. On their way to the truckhouse, Maines, who had been hazed when he was inducted to junior membership and thus suspected that some type of horseplay awaited him, told the other fireman that "if they were going to do any fooling around not to do it today because (he had his) good clothes on." No response was made. Immediately upon entering the truckhouse a bedsheet was pulled over plaintiff's head, a leather belt was tied to his waist, his feet were bound together with three-quarter-inch rope, and his arms were held to restrain him from struggling loose. Maines was then carried outside to the parking lot and thrown into a garbage dumpster. Once in the dumpster, grease was thrown at him, he was hosed with water for several minutes, and despite his protestations that he had landed on broken glass and had been severely cut, the lid to the dumpster was closed and he was kept inside for several minutes more. The dumpster was then turned on its side and as plaintiff rolled out the other firemen saw that he had in fact been hurt. They administered first aid and rushed him to the hospital for treatment of his seriously gashed left hand and fingers and injuries to his right wrist. That same night the department chief fined each of the individual defendants $5 for costs, suspended them for 54 days and placed them on probation for six months. One defendant, who was a first lieutenant, lost his rank for a year.

The fire department chief filed notice of the accident with the Workers' Compensation Board. Though plaintiff did not attend the first hearing held by the board, he ultimately did attend at least one later hearing and was awarded and accepted benefits in the amount of.$8,332 for the injuries sustained. The decision stated simply that claimant "sustained injury to his left hand in the course of firematic (sic) duties."

Whether compensation is plaintiff's exclusive remedy turns on the interpretation of sections 19 and 20 of the Volunteer Firemen's Benefit Law and of related sections of the Workers' Compensation Law. Section 19 of the former law provides in relevant part that: "The benefits provided by this chapter shall be the exclusive remedy of a volunteer fireman * * * for * * * injury * * * in the line of duty * * * as against * * * (3) any person or agency acting under governmental or statutory authority in furtherance of the duties or activities in relation to which any such injury resulted" and section 20, which is entitled "Other remedies of volunteer firemen; subrogation," states that: "The provisions of section twenty-nine of the workmen's compensation law to the extent that such provisions are not inconsistent with the provisions of this chapter, shall be applicable as fully as if set forth in this chapter." Section 29 of the Workers' Compensation Law provides, so far as here relevant, in subdivision 1 that "If an employee entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured employee * * * may take such compensation and medical benefits and * * * pursue his remedy against such other," and in subdivision 6 that the right to compensation is the exclusive remedy of an employee injured "by the negligence or wrong of another in the same employ."

Viewed solely on the basis of the words used, section 29 of the Workers' Compensation Law, which turns on whether plaintiff and defendant were "in the same employ," gives a coworker greater protection than does section 19 of the firemen's law, which protects only a person acting "in furtherance of the duties or activities in relation to which" the injury resulted, for our decisions have long recognized that an employee may be within the course of employment (and thus in "the same employ") even though not acting strictly in furtherance of his duties or his employer's objectives (see, generally, 1A Larson, Workmen's Compensation Law, §§ 20-23). On its wording section 19 affords no basis for dismissal of the complaint, for a jury could find, there being evidence (both in the disciplining of defendant firemen and in testimony of individual witnesses that such initiation or hazing activities were not an accepted practice in the fire department) that in fact defendants were not acting "in furtherance of the duties or activities" in relation to which plaintiff's injuries resulted (Matter of Ognibene v. Rochester Mfg. Co., 298 N.Y. 85, 80 N.E.2d 749; see Matter of Heitz v. Ruppert, 218 N.Y. 148, 152-153, 112 N.E. 750; cf. 1A Larson, Workmen's Compensation Law, § 23.41). Likewise the disparate wording of the two laws would make section 29 of the Workers' Compensation Law inapplicable because section 20 of the firemen's law applies section 29's exclusivity provision only to the extent not inconsistent with the firemen's law. Nor would the referee's finding estop plaintiff collaterally, for the only finding required by subdivision 3 of section 3 and section 6 of the firemen's law, and indeed the only finding made, was that Maines had been injured "in line of duty."

We prefer not to predicate our ruling on the difference in wording between the two laws, however, because the Memorandum of the Joint Legislative Committee on Fire Laws which accompanied the bill which became the Volunteer Firemen's Benefit Law (N.Y.Legis.Doc., 1956, No. 45, reprinted at McKinney's Cons.Laws of N.Y., Book 63B, p. 17) contains language suggesting that section 19 was intended to follow the exclusivity rule of the Workers' Compensation Law (N.Y.Legis.Doc., 1956, No. 45, p. 26; McKinney's Cons.Laws of N.Y., Book 63B, p. 12, see, also, p. 29), a conclusion which is consistent with the result we reached in Pollini v. Fuller Rd. Fire Dept., 34 N.Y.2d 744, 357 N.Y.S.2d 502, 313 N.E.2d 793. ³ We leave the question open also because, though the word "employ" does not necessarily import employment for hire, it may be argued that section 19's "furtherance of the duties or activities" phrasing was simply the scrivener's effort to transpose "in the same employ" to a law relating to volunteers, and because, in final analysis, we conclude that even under the broader wording of the Workers' Compensation Law, defendants were not "in the same employ" as that phrase has been construed and, therefore, plaintiff is not barred from suing them.

That plaintiff was "in line of duty" at the time he was summoned to the truckhouse is not open to question. Section 5 of the Volunteer Firemen's Benefit Law includes within the "duties and activities" for which benefits are to be paid "attending or working at meetings of his fire department" (subd. 1, par. f), and the frequent holding of this and other courts has been that the interpretation of such a provision must not be restricted to the exact hours of the event in question, but should be reasonably, and sometimes liberally, construed in reference to the particular factual context (Wright v. Day, 26 N.Y.2d 905, 309 N.Y.S.2d 940, 258 N.E.2d 221; Doyle v. Jennings, 26 N.Y.2d 957, 310 N.Y.S.2d 512, 258 N.E.2d 924; Matter of Myslborski v. Greenport Fire Dist., Volunteer Firemen's Co., 38 A.D.2d 646, 327 N.Y.S.2d 203). There is nothing in the instant record to suggest that the board was not wholly justified in finding plaintiff to have been in course of duty when injured, and in any event there has been no appeal from that finding.

But the words "in the same employ" as used in the Workers' Compensation Law are not satisfied simply because both plaintiff and defendant have the same employer; a defendant, to have the protection of the exclusivity provision, must himself have been acting within the scope of his employment and not have been engaged in a willful or intentional tort. Though the cases cited by the courts below (Doca v. Federal Stevedoring Co., 280 App.Div. 940, 116 N.Y.S.2d 25, affd. 305 N.Y. 648, 112 N.E.2d 424; Meaney v. Keating, 200 Misc. 308, 102 N.Y.S.2d 514, affd. 279 App.Div. 1030, 113 N.Y.S.2d 240, affd. 305 N.Y. 660, 112 N.E.2d 763; Moakler v. Blanco, 47 A.D.2d 614, 364 N.Y.S.2d 528; Durso v. Modern Biscuit Corp., 11...