Mullen v. Zoebe, Inc.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: LEVINE; KAYE
• Citation: Mullen v. Zoebe, Inc., 630 N.Y.S.2d 269, 86 N.Y.2d 135, 654 N.E.2d 90 (N.Y. 1995)
• Decision Date: 29 June 1995
• Parties: , 654 N.E.2d 90 Felix T. MULLEN, Respondent, et al., Plaintiff, v. ZOEBE, INC., et al., Defendants, and Li-Var Realty Corp., Sued Herein as Li-Var Realty, Appellant.

Page 269

630 N.Y.S.2d 269

86 N.Y.2d 135, 654 N.E.2d 90

Felix T. MULLEN, Respondent, et al., Plaintiff, v. ZOEBE, INC., et al., Defendants, and Li-Var Realty Corp Sued Herein as Li-Var Realty, Appellant.

Court of Appeals of New York.

June 29, 1995.

[86 N.Y.2d 136] [654 N.E.2d 91] Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Nina Cangiano, Steven L. Young and Joseph F. Muratore, of counsel), for appellant.

Barry, McTiernan & Moore, New York City (Roger P. McTiernan, William E. Fay, III, and Laurel A. Wedinger, of counsel), for respondent.

[86 N.Y.2d 137] Paul A. Crotty, Corp. Counsel of New York City (Alan Beckoff and Stephen J. McGrath, of counsel), for City of New York, amicus curiae.

Sullivan & Liapakis, P.C., New York City (Michael N. Block, Marshall M. Kolba and Stephen C. Glasser, of counsel), for Uniformed Firefighters' Ass'n and another, amici curiae.

[86 N.Y.2d 138] Edward M. Cooke, Monticello, and O'Connell and Aronowitz, Albany (Cornelius D. Murray and Kathleen M. Treasure, of counsel), for Firemen's Ass'n of State of New York, amicus curiae.

OPINION OF THE COURT

LEVINE, Judge.

Plaintiff, a uniformed firefighter in the Fire Department of the City of New York, incurred a serious back injury while responding to a fire at defendant's two-story building in Rockaway Park, Queens County. The first floor of the building was occupied by two commercial establishments and the second floor by illegal single-room occupancies. The fire was well in progress upon the arrival of plaintiff's ladder company. An advanced fire was found on the second floor, blowing out one side of the building and igniting the siding of the building. Screams were heard of someone trapped on the second floor. Plaintiff and Firefighter Richard Sullivan climbed stairs to the second floor and attempted to open the door to a room from which the screams seemed to have emanated. They were unable to force entrance because the door opened inward and was blocked by furniture. Sullivan, therefore, hunched over and plaintiff climbed on his shoulders to enter the room through a small elevated window he smashed open. Upon entering through the window, he fell to the floor and felt his body hit something during the fall. He experienced spasms and severe pain in his leg and lower back, but was able to help in moving the furniture so that the door to the room could be opened. He was then carried out and removed from the scene by ambulance.

It is conceded that defendant's building contained numerous violations of fire prevention and safety provisions contained in Multiple Dwelling Law § 248 (governing single-room occupancy buildings) and of the Administrative Code of the City of New York, including the absence of fire alarms, smoke detectors and a sprinkler system.

Plaintiff sued on several theories, among which was a cause of action under General Municipal Law § 205-a. ¹ The trial court denied defendant's request to charge the jury on comparative fault as between plaintiff and defendant pursuant to CPLR 1411 ² on plaintiff's General Municipal Law § 205-a cause of action, and the jury returned a substantial verdict in plaintiff's favor. On appeal, the Appellate Division upheld the trial court's refusal to charge comparative fault, but modified to reduce the damages awarded, directing a new trial unless plaintiff stipulated to the reduction, in which event the judgment as so modified was affirmed (205 A.D.2d 598, 613 N.Y.S.2d 271). Plaintiff so stipulated, and we granted defendant leave to appeal to address the issue of whether comparative fault under CPLR article 14-A applies in an action based upon General Municipal Law § 205-a. We agree with the courts below that the culpability of an injured or deceased firefighter in contributing to the happening of the injury-producing accident may not be invoked by a defendant property owner or occupier to reduce damages claimed under General Municipal Law § 205-a. Thus, we affirm the Appellate Division.

As authoritative, earlier decisions involving General Municipal Law § 205-a explain, that section, enacted originally some 60 years ago (L.1935, ch. 800), "created a [new] statutory cause of action--where none existed at common law" (Kenavan v. City of New York, 70 N.Y.2d 558, 567, 523 N.Y.S.2d 60, 517 N.E.2d 872), and did not merely define a statutory standard of care to be applied in a common-law negligence action (id.; see also, McGee v. Adams Paper & Twine Co., 26 A.D.2d 186, 194-195, 271 N.Y.S.2d 698, affd. 20 N.Y.2d 921, 286 N.Y.S.2d 274, 233 N.E.2d 289).

General Municipal Law § 205-a was enacted to benefit a specific class--firefighters--in two ways. First, "to ameliorate the harsh effects of the firefighter rule's bar to recovery in common-law negligence by imposing 'liability in any case where there is any practical or reasonable connection between a [statutory or code] violation and the injury or death of a fire[fighter]' " (Zanghi v. Niagara Frontier Transp. Commn., 85 N.Y.2d 423, 441, 626 N.Y.S.2d 23, 649 N.E.2d 1167 [quoting McGee v. Adams Paper & Twine Co., 26 A.D.2d, at 195, 271 N.Y.S.2d 698, supra] [brackets in original].

The firefighter's rule, as we have described it, bars recovery by firefighters against real property owners and occupiers for "negligence in the very situations that create the occasion for their services" (Santangelo v. State of New York, 71 N.Y.2d 393, 397, 526 N.Y.S.2d 812, 521 N.E.2d 770). We have recently further refined the rule to give landowners immunity from liability from their own negligence causing injuries to firefighters when "the performance of the * * * firefighter's duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury" ( Zanghi v. Niagara Frontier Transp. Commn., 85 N.Y.2d, at 439, 626 N.Y.S.2d 23, 649 N.E.2d 1167, supra [emphasis in original].

When General Municipal Law § 205-a was first enacted and until recently, the dominant rationale for the firefighter's rule was that, when firefighters enter the profession, they are expected to assume, as part of their duties, the risks of fire-related injuries, including the risk of negligence by property owners and occupiers in maintaining their premises (see, Raymond v. Republic Light, Heat & Power Co., 262 N.Y. 498, 499, 188 N.E. 37 [1933]; see also, McGee v. Adams Paper & Twine Co., 26 A.D.2d, at 190, 271 N.Y.S.2d 698,supra ). In Santangelo v. State of New York, supra, we expressed a preference for a policy-based justification for denying recovery: that firefighters (and police officers) should not be awarded damages for the very hazards that create the need for the performance of their duties, i.e., dangers which they are especially "trained and compensated to confront" (id., 71 N.Y.2d, at 397, 526 N.Y.S.2d 812, 521 N.E.2d 770). In creating a right of recovery under General Municipal Law § 205-a for an injury to or the death of a firefighter connected with violations of fire safety or prevention statutes, codes or rules, the Legislature determined that firefighters should not be expected to assume the risks of additional hazards arising out of such violations (see, McGee v. Adams Paper & Twine Co., 26 A.D.2d, at 195, 271 N.Y.S.2d 698, supra; see also, Zanghi v. Niagara Frontier Transp. Commn., 85 N.Y.2d, at 443, 626 N.Y.S.2d 23, 649 N.E.2d 1167, supra ). Thus, to that degree, the harsh results of the firefighter's rule are obviated by General Municipal Law § 205-a.

The second benefit the Legislature sought to confer specifically on firefighters by enacting General Municipal Law § 205-a was protection through encouragement of property owners and occupiers to comply with fire safety and prevention codes. By imposing liability (including statutory minimum awards) in the case of injury or death of a firefighter related to safety violations, section 205-a "affords firefighters protection from those premises harboring violations of safety provisions" (Kenavan v. City of New York, 70 N.Y.2d 558, 567, 523 N.Y.S.2d 60, 517 N.E.2d 872, supra [emphasis supplied]. "The Legislature, in creating [a cause of action under General Municipal Law § 205-a] in the interests of protecting fire[fighters ] against the hazards of such violations * * * intended to impose liability in any case where there is any practical or reasonable connection between a violation and the injury or death of a fire[fighter]" (McGee v. Adams Paper & Twine Co., 26 A.D.2d, at 195, 271 N.Y.S.2d 698, supra [emphasis supplied]. Thus, section 205-a reflects the Legislature's awareness that, by the very nature of their duties, firefighters are incapable of avoiding the additional hazards at fires resulting from fire safety and prevention code violations on the premises.

Applying comparative fault as between a code-violating property owner and an injured or deceased firefighter is incompatible with and undermines the protective purposes of General Municipal Law § 205-a. As we have described in relating the history of General Municipal Law § 205-a, it was intended to carve out an exception to the dominant rationale of the firefighter's rule that firefighters assume the risk of hazards created by ordinary negligence encountered in the performance of their duties. Underlying this statutory exception to the firefighter's rule was the Legislature's determination that fire professionals as a class should be protected from the additional dangers of fire safety and prevention code violations, and that assumption of risk doctrine should not apply when a firefighter is injured or killed as a result of exposure to such additional hazards because such additional dangers are unavoidable if safety violations exist on premises to which firefighters must respond in case of a fire. Comparative fault diminishing a firefighter's recovery would undermine the legislative goal to fully protect them from code violation hazards, and would subvert the law's deterrent effect.

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