Shepherd v. Werwaiss

• Citation: 947 F.Supp. 71
• Decision Date: 02 December 1996
• Docket Number: Civil Action No. CV-94-3107.
• Parties: Martin SHEPHERD and Elizabeth Shepherd, Plaintiffs, v. Beth N. WERWAISS, National Railroad Passenger Corporation and Alar Management, Defendants.
• Court: U.S. District Court — Eastern District of New York

947 F.Supp. 71

Martin SHEPHERD and Elizabeth Shepherd, Plaintiffs, v. Beth N. WERWAISS, National Railroad Passenger Corporation and Alar Management, Defendants.

Civil Action No. CV-94-3107.

United States District Court, E.D. New York.

December 2, 1996.

Lawrence Goldhirsch, Weitz & Luxenberg, P.C., New York City, for Plaintiffs.

Ronald E. Joseph, Lori B. Wolmetz, Landman Corsi Ballaine & Ford, New York City, for defendant National R.R. Corp.

Harriet D. Feuer, Alio, McDonough, Jennings & Ritzert, New York City, for defendant Alar Management Co.

MEMORANDUM AND ORDER

TRAGER, District Judge:

Plaintiff Martin Shepherd and his wife Elizabeth Shepherd brought a personal injury action against Beth N. Werwaiss,¹ National Railroad Passenger Corp. ("Amtrak") and Alar Management Corp. ("Alar") pursuant to General Municipal Law ("GML") § 205-e in conjunction with the Administrative Code of the City of New York, § 16-118 and the New York City Health Code, § 153.01. Pl.Mem. at 3. Amtrak now brings this motion for summary judgment, claiming that GML § 205-e does not apply in the instant case. Defendant Alar has joined in this motion.

Background

At the time he suffered the injury forming the basis of this action, Martin Shepherd was a New York City police officer and served as a member of the Violent Predator Task Force. Def. 3g ¶ 1. He had been employed as a police officer since January 3, 1983. Id. On the morning of April 29, 1991, Shepherd and his partner assisted a warrant squad team in efforts to execute an arrest warrant on a suspect in Astoria, Queens. Id. ¶ 2. When two officers attempted to arrest the suspect in his home, the suspect fled through the back window, whereupon Shepherd commenced chasing him. Id. ¶¶ 3, 4. Although plaintiff drew his weapon and ordered him to stop, the suspect continued to flee. Pl.Mem. at 2. During the ensuing chase, which continued along a railroad trestle, Shepherd saw the suspect scale and "go over" a chain link fence. Id. Shepherd then climbed and jumped off of the six or seven foot fence in pursuit of the suspect. Def. 3g ¶ 5. Shepherd fractured his left ankle when he landed on a steel wheel from a baby carriage or stroller that was covered by an empty baby diaper box. Pl.Mem. at 2. It is not contested that the sidewalk onto which Shepherd fell is not owned by Amtrak, but rather is adjacent to Amtrak property. Def. 3g ¶ 7. Alar is responsible for the maintenance of Amtrak's premises.²

Discussion

The salient issue on this motion for summary judgment is whether Amtrak's alleged violations of the Administrative Code of the City of New York § 16-118 and the New York City Health Code § 153.01 are proper predicates for a GML § 205-e action. In relevant part, the much-amended GML § 205-e now reads:

1. In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any police department injured, or whose life may be lost while in the discharge or performance at any time or place of any duty imposed by the police commissioner, police chief or other superior officer of the police department....

3. This section shall be deemed to provide a right of action regardless of whether the injury or death is caused by the violation of a provision which codifies a common-law duty and regardless of whether the injury or death is caused by the violation of a provision prohibiting activities or conditions which increase the dangers inherent in the work of any officer, member, agent or employee of any police department.³

Section 205-e, first enacted in 1989, substantially cabined the common-law firefighter's rule, which had been extended to police officers by the New York Court of Appeals in Santangelo v. New York, 71 N.Y.2d 393, 397-98, 526 N.Y.S.2d 812, 521 N.E.2d 770 (N.Y. 1988). The historical firefighter's rule (or defense) precluded firefighters from recovering against "property owners or occupants whose negligence in maintaining the premises occasioned the fires." Id. at 397, 526 N.Y.S.2d 812, 521 N.E.2d 770. In 1935, however, the legislature passed GML § 205-a to permit firefighters to sue for damages when they suffered injuries in the line of duty because of a private party's failure to comply with "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 (N.Y.1987). In 1989, in response to the Santangelo extension of the common-law firefighter's rule to police officers, the legislature enacted § 205-e to allow police officers to recover damages from private citizens when such injuries are due to violations of statutes and ordinances.

In 1992, the legislature amended § 205-e to clarify that police officers, unlike firefighters, could recover for injuries acquired at any time or place — not only for injuries due to failure to maintain safe premises. The statement of legislative intent accompanying the 1992 amendment provides that § 205-e should not:

be limited to violations pertaining to the safe maintenance and control of premises. Since our police officers are required to confront dangerous conditions under many and varied circumstances, there is a need to ensure that a right of action exists regardless of where the violation causing the injury or death occurs.

Zanghi v. Niagara Frontier Transp. Comm'n, 85 N.Y.2d 423, 445, 626 N.Y.S.2d 23, 649 N.E.2d 1167 (N.Y.1995) (quoting § 1 of L.1992, ch. 474).

In the most recent series of amendments enacted October 9, 1996, the legislature abolished the firefighter's rule (or defense) through the § 205 statutory right of action. The legislature: 1) established parity between § 205-a and § 205-e by permitting firefighters, like police officers, to sue for injuries suffered at any time or place; and 2) responded to judicial interpretations of § 205-e by enacting section 3, which, as quoted above, permits suits under statutes regardless of whether they codify a common-law duty or prohibit activities or conditions which increase the dangers inherent in police work.⁴

The ordinances upon which plaintiffs seek to predicate § 205-e liability are § 16-118(2) of the Administrative Code of the City of New York and the New York City Health Code § 153.01. Section 16-118(2) of the Administrative Code, entitled "Littering Prohibited," provides in relevant part:

Every owner, lessee, tenant, occupant or person in charge of any building or premises shall keep and cause to be kept the sidewalk ... abutting said building or premises free from obstruction and nuisances of every kind, and shall keep said sidewalks ... free from garbage, refuse, rubbish, litter, debris and other offensive material....

Section 16-118(8) further mandates that "any violation of any provision of this section shall constitute an offense punishable by a fine of not less than fifty dollars nor more than two hundred fifty dollars, or by imprisonment not to exceed ten days or both." Id. Section 153.01. of the New York City Health Code, also entitled "Littering Prohibited," states that "[n]o person shall litter, sweep, lay or throw any ... garbage, refuse or rubbish of any kind in or upon any street or public place, lot, air shaft, areaway, backyard, court or alley." The introductory notes to Article 153 of the New York City Health Code provide that "the violation of any of the provisions of this Code constitutes a misdemeanor under the City Charter § 558(2) and is punishable by imprisonment up to one year, a fine of not more than five hundred dollars, or both (Penal Law § 1937)."

Two related characteristics of these laws are paramount to a determination of this matter: first, neither ordinance eviscerates the City's nondelegable duty to maintain its sidewalks; and second, neither ordinance imposes civil liability on adjacent landowners for injuries due to noncompliance. These qualities in turn raise two related questions: first, are Amtrak and Alar the appropriate defendants in this matter; and second, should GML § 205-e, a statute designed to create parity and achieve legal fairness for police officers by repealing the firefighter's rule, permit police officers to recover damages against an abutting landowner where a private citizen could not?

Addressing each of these questions in turn, the first point to be made is that New York City has a nondelegable duty to maintain its sidewalks. See City of New York v. Kalikow Realty Co., 71 N.Y.2d 957, 958-59, 529 N.Y.S.2d 62, 524 N.E.2d 416 (N.Y.1988) ("This case is no way affects ... the City's nondelegable duty to maintain its sidewalks, a duty the City concedes."). However, the Court of Appeals recently held that a municipality may delegate this (heretofore termed) nondelegable duty if it enacts an ordinance which explicitly holds abutting landowners directly liable for injuries suffered due to sidewalks in disrepair. See Hausser v. Giunta, 88 N.Y.2d 449, 646 N.Y.S.2d 490, 669 N.E.2d 470 (N.Y.1996).⁵ According to the Court of Appeals:

Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner. There are, however, circumstances under which this general rule is inapplicable and the abutting landowner will be held liable....