Raquet v. Braun

• Citation: 201 A.D.2d 910,607 N.Y.S.2d 799
• Parties: Frank P. RAQUET and Vicki L. Raquet, His Wife, Melvin J. Spoth, as Administrator of the Estate of Mitchell Spoth, Deceased, and Melvin J. Spoth, Individually, Respondents, v. Carol BRAUN, Benito Olivieri, Individually and D/B/A Mason Construction, Inc., J.M. Braun Builders, Inc., and John Braun, Appellants. Frank P. RAQUET and Vicki L. Raquet, His Wife, Melvin J. Spoth, as Administrator of the Estate of Mitchell Spoth, Deceased, and Melvin J. Spoth, Individually, Respondents, v. Clifford A. ZANE, et al., Defendants, and Leonard J. Zane, Appellant.
• Decision Date: 04 February 1994
• Court: New York Supreme Court Appellate Division

Page 799

607 N.Y.S.2d 799

201 A.D.2d 910

Frank P. RAQUET and Vicki L. Raquet, His Wife, Melvin J.

Spoth, as Administrator of the Estate of Mitchell

Spoth, Deceased, and Melvin J. Spoth, Individually, Respondents, v. Carol BRAUN, Benito Olivieri, Individually and D/B/A Mason

Construction, Inc., J.M. Braun Builders, Inc., and

John Braun, Appellants.

Frank P. RAQUET and Vicki L. Raquet, His Wife, Melvin J.

Spoth, as Administrator of the Estate of Mitchell

Spoth, Deceased, and Melvin J. Spoth, Individually, Respondents, v. Clifford A. ZANE, et al., Defendants, and Leonard J. Zane, Appellant.

Supreme Court, Appellate Division Fourth Department.

Feb. 4, 1994.

Maloney, Gallup, Roach, Brown & McCarthy, P.C. by Jo Mark Gruber, Buffalo, for appellant Benito Olivieri.

Quinn & McGarry, P.C. by David Quinn, Buffalo, for appellant Leonard Zane.

Cohen and Lombardo, P.C. by James Spandau, Buffalo, for appellants Braun.

Renaldo, Myers, Regan & Palumbo, P.C. by James Miller, Buffalo, for respondents Frank and Vicki Raquet and Melvin Spoth.

Before CALLAHAN, J.P., and GREEN, BALIO, LAWTON and BOEHM, JJ.

MEMORANDUM:

Supreme Court erred in denying the motions for summary judgment made by defendants Carol Braun, J.M. Braun Builders, Inc., John Braun, Benito Olivieri, individually and d/b/a Mason Construction, Inc., and Leonard J. Zane dismissing plaintiffs' causes of action asserting liability against defendants in common-law negligence and under General Municipal Law § 205-a. Plaintiff firefighter Frank P. Raquet was seriously injured and firefighter Mitchell Spoth died as a result of injuries received while fighting a fire at a commercial building when that structure's canopy roof collapsed outward and fell on them. Firefighters injured while extinguishing fires generally may not recover against the property owners or occupants whose negligence in maintaining the premises occasioned the fires (see, Santangelo v. State of New York, 71 N.Y.2d 393, 396, 526 N.Y.S.2d 812, 521 N.E.2d 770; Kenavan v. City of New York, 70 N.Y.2d 558, 523 N.Y.S.2d 60, 517 N.E.2d 872; McGee v. Adams Paper & Twine Co., 20 N.Y.2d 921, 286 N.Y.S.2d 274, 233 N.E.2d 289, affg on opn. below 26 A.D.2d 186, 271 N.Y.S.2d 698). Persons who choose to become firefighters assume the risks of fire-related injuries, including the risk of negligence of property owners and occupants in maintaining their premises (see, Santangelo v. State of New York, supra, 71 N.Y.2d at 397, 526 N.Y.S.2d 812, 521 N.E.2d 770; McGee v. Adams Paper & Twine Co., 26 A.D.2d 186, 190, 271 N.Y.S.2d 698, supra ). We conclude that the danger of being struck by the collapse of a building wall or roof at the scene of a fire is one of the particular dangers that firefighters are expected to assume as part of their duties (see, Cooper v. City of New York, 81 N.Y.2d 584, 601 N.Y.S.2d 432, 619 N.E.2d 369; McGee v. Adams Paper & Twine Co., supra ).

Plaintiffs contend that defendants' alleged violation of state and town building codes in the renovation of the building gives rise to liability under General Municipal Law § 205-a. We disagree. Although General Municipal Law § 205-a was enacted to ameliorate the harsh results of the common-law "fireman's rule" (see, Kenavan v. City of New York, supra, 70 N.Y.2d at 566, 523 N.Y.S.2d 60, 517 N.E.2d 872), the scope of that statute is "not so far-reaching" as a literal reading of the statute tends to suggest (Kenavan v. City of New York, supra, at 566, 523 N.Y.S.2d 60, 517 N.E.2d 872). "[T]he statute affords firefighters protection from those premises harboring violations of safety provisions...