Santangelo v. State

• Citation: 71 N.Y.2d 393,521 N.E.2d 770,526 N.Y.S.2d 812
• Parties: , 521 N.E.2d 770 Joseph SANTANGELO, Appellant, v. STATE of New York, Respondent. Fred KIRSCHENHEITER, Appellant, v. STATE of New York, Respondent.
• Decision Date: 22 March 1988
• Court: New York Court of Appeals Court of Appeals

Page 812

526 N.Y.S.2d 812

71 N.Y.2d 393, 521 N.E.2d 770

Joseph SANTANGELO, Appellant, v. STATE of New York, Respondent.

Fred KIRSCHENHEITER, Appellant, v. STATE of New York, Respondent.

Court of Appeals of New York.

March 22, 1988.

James J. Kelly, Deer Park, for appellants.

Robert Abrams, Atty. Gen. (Vernon Stuart, O. Peter Sherwood and Peter H. Schiff, Albany, of counsel), for respondent.

OPINION OF THE COURT

KAYE, Judge.

Police officers injured while attempting to subdue an escaped mental patient cannot, in general, recover damages against the State for negligence in connection with the patient's escape.

Claimants--Suffolk County Police Officers Joseph Santangelo and Fred Kirschenheiter--were injured on July 15, 1979 when they attempted to apprehend Brian Bordes, an escaped mental patient, and return him to Kings Park Psychiatric Center.

Bordes had a history of confinement and escape from Kings Park. Several times Bordes was delivered there by Suffolk County police officers, most recently on May 9, 1979 when he was involuntarily committed after having fired a rifle into a cabinet at his grandparents' home. Police directed the hospital staff to inform them if he was discharged because there were warrants outstanding for his arrest. But the hospital's supervision failed yet again, and on May 17 Bordes--considered potentially dangerous to himself and others--escaped once more. The hospital notified the family and the police of the escape, but when Bordes remained at large for 30 days, the hospital simply marked him "discharged", meaning that its records no longer reflected that he had escaped. Suffolk County police were notified of the "discharge" and canceled the alarm on Bordes. Thus, on July 15 there was no notification in police records of his escape or his potential dangerousness.

On the morning of July 15, 1979, Bordes' uncle called Suffolk County police headquarters and advised Santangelo that Bordes was an escapee from Kings Park and was at his grandparents' home, that he feared for their welfare, and that Bordes previously had fled at the sight of uniformed police officers. Santangelo determined from the office teletype file that there were no outstanding alarms for Bordes, and with Kirschenheiter went to apprehend him. They found Bordes seated on the living room couch. When they identified themselves as police, Bordes produced a knife from his pocket and threatened them with it. In their ensuing efforts to subdue Bordes, including spraying chemical mace and shooting at him, both officers were injured.

Claimants thereafter instituted personal injury suits against the State, asserting two theories: that the State was negligent in permitting this dangerous patient to escape and remain at large, and that the State violated Department of Mental Hygiene regulations regarding escapees in marking Bordes "discharged" and in failing to give them the required particular notice of his escape and dangerousness. The Court of Claims found both that the State was negligent and that it had violated regulations by marking Bordes "discharged" after his escape. However, the court denied claimants any recovery because public policy precluded it, because claimants were not within the class intended to be protected by the regulations and because, even if they were, the requisite notification had in effect been made. The Appellate Division affirmed (127 A.D.2d 647, 511 N.Y.S.2d 666). We granted leave and now affirm.

It is a long-standing common-law rule that firefighters injured while extinguishing fires generally cannot recover against the property owners or occupants whose negligence in maintaining the premises occasioned the fires ( see, 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). The rule has been recognized in the statutory law of this State by the adoption of General Municipal Law § 205-a, creating a cause of action where none would otherwise exist, for firefighters sustaining "injuries while engaged in extinguishing a fire on premises wherein the owner or other person in control negligently failed to comply with the requirements of some statute, ordinance, or rule respecting the maintenance and safety of such premises." ( Kenavan v. City of New York, 70 N.Y.2d 558, 567, 523 N.Y.S.2d 60, 517 N.E.2d 872, supra.)

The initial rationale for the common-law rule--known as the "fireman's rule"--was that firefighters entering upon premises were no more than licensees, and therefore took the property as they found it ( see, Flowers v. Rock Creek Terrace, 308 Md. 432, 520 A.2d 361; Prosser and Keeton, Torts § 61, at 429; Annotation, Liability of Owner or Occupant of Premises to Fireman Coming Thereon in Discharge of his Duty, 11 A.L.R. 4th 597). Later cases have rejected the premises-based rationale and instead cast the general denial of liability in terms of assumption of risk: 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, e.g., McGee v. Adams Paper & Twine Co., 26 A.D.2d, at 190, 271 N.Y.S.2d 698, supra; see also, ...