Wolf v. City of New York
| Decision Date | 13 May 1976 |
| Parties | , 349 N.E.2d 858 Richard WOLF et al., Respondents, v. CITY OF NEW YORK, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
W. Bernard Richland, Corp. Counsel, New York City (Nina G. Goldstein and L. Kevin Sheridan, New York City, of counsel), for appellant.
Joseph P. Napoli, Harry H. Lipsig, P.C., and Joseph B. Castleman, New York City, for respondents.
Plaintiff Richard Wolf lived at Ridgefield Park, New Jersey, and was a member of the volunteer fire department there. Although he received training and went to a substantial number of fires in that State, he yearned to be a New York City fireman.
With this ambition in mind and thinking that he would be better prepared to pass a written examination, in January, 1969 he started frequenting a very busy firehouse in the Harlem section of Manhattan that housed Engine Company 58 and Ladder Companies 26--1 and 26--2. He usually arrived on a Friday or Saturday night, about twice a month, and brought with him his rubber coat, rubber boots, helmet and rubber gloves. He would ask for the person in charge and was allowed into the premises, a practice following on all occasions. Sometimes he slept there, either in the TV room or in a bunk on the second floor, in the presence of firemen. At times in the kitchen there, he ate with the firemen and partook of food which they had purchased jointly. He was given permission on all occasions to ride the engine and ladders and had attended about a hundred fires with these segments of the New York City Fire Department.
On August 2, 1969, Wolf arrived at the firehouse between 7:30 and 8:00 o'clock in the evening and received permission to enter the premises. After going to five or six fires, an alarm came for a fire at 310 West 121st Street. Following authorization from Acting Lieutenant Scollan, the officer in charge at the time, to ride ladder 26--2, Wolf, wearing his firemanic boots, gloves and helmet, proceeded aboard the apparatus to the fire scene, a five-story nonfireproof building. The full complement for such a ladder company was eight or nine men, but on that venture there were only six. At the fire, Wolf stood on the truck and watched until Brun, a fireman, asked that he take a Halligan tool, pike pole and gasoline can for a power saw up to the roof. He followed the firemen to the roof of the adjacent building and they then crossed over an 18-inch-high parapet wall to the roof of the burning structure. Once there, Wolf handed over the equipment to the men as needed. Upon request he delivered the gasoline to Brun who cut a hole in the roof. After standing for 5 or 10 minutes in a corner as requested by Brun, Scollan asked Wolf to come over with the pike pole and give a hand in tearing apart the roof which Brun had cut. It was dark and smokey. After working with Scollan for about five minutes, Scollan pointed and told Wolf to get off the roof. After proceeding in the direction as pointed to by Scollan, in which direction were some firemen standing on a roof, Wolf climbed over a 30-inch-high parapet and fell into an air shaft sustaining serious injuries.
This action was instituted by Wolf to recover for personal injuries and by his wife who asserted a derivative cause of action. The issue of liability was tried in the Civil Court of New York City and, based on a jury verdict, an interlocutory judgment was entered in favor of the plaintiffs and against the defendant. In turn, this judgment was affirmed by the Appellate Term and Appellate Division, 47 A.D.2d 152, 365 N.Y.S.2d 205.
As to defendant's negligence, the trial court instructed the jury:
'Negligence may be defined as the failure or omission to do some act or to perform some duty which one person owes to another. More simply defined, it is the absence of such care as a reasonably prudent person would be expected to use under the circumstances. I will repeat. Negligence is the absence of such care as a reasonably prudent person is expected to use under those circumstances, the circumstances in this particular case.
'However, if you are satisfied as to the first proposition that the plaintiff was in fact free from contributory negligence, that he did act as a reasonably prudent person under the circumstances, then you will be faced with the second question, that is the guilt of negligence of the defendants. Did the defendant through its agents conduct themselves as reasonable prudent persons under those circumstances? It matters not that there is a departmental rule or regulation against certain acts or omissions. It matters not, the issue here is whether those...
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