Zanghi v. Niagara Frontier Transp. Com'n

• Decision Date: 30 March 1995
• Citation: 85 N.Y.2d 423,649 N.E.2d 1167,626 N.Y.S.2d 23
• Parties: , 649 N.E.2d 1167 Ronald ZANGHI et al., Appellants, v. NIAGARA FRONTIER TRANSPORTATION COMMISSION et al., Defendants, and Greyhound Bus Lines, Inc., Respondent. Frank P. RAQUET et al., Appellants, v. Carol BRAUN et al., Respondents. Frank P. RAQUET et al., Appellants, v. Clifford A. ZANE et al., Defendants, and Leonard J. Zane, Respondent. Robert RUOCCO et al., Appellants, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 23

626 N.Y.S.2d 23

85 N.Y.2d 423, 649 N.E.2d 1167

Ronald ZANGHI et al., Appellants, v. NIAGARA FRONTIER TRANSPORTATION COMMISSION et al., Defendants, and Greyhound Bus Lines, Inc., Respondent.

Frank P. RAQUET et al., Appellants, v. Carol BRAUN et al., Respondents.

Frank P. RAQUET et al., Appellants, v. Clifford A. ZANE et al., Defendants, and Leonard J. Zane, Respondent.

Robert RUOCCO et al., Appellants, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent.

Court of Appeals of New York.

March 30, 1995.

Grosse, Chelus, Herdzik & Speyer, P.C., Buffalo (Thomas J. Speyer and Gregory V. Pajak, of counsel), for appellants in the first above-entitled action.

Gibson, McAskill & Crosby, Buffalo (Brian P. Crosby and David W. Kloss, of counsel), for respondent in the first above-entitled action.

Sullivan & Liapakis, P.C., New York City (Michael N. Block, Marshall M. Kolba and Stephen C. Glasser, of counsel), for New York State Trial Lawyers' Ass'n, amicus curiae, in the first above-entitled action.

Dreyer, Boyajian & Tuttle, Albany (James B. Tuttle, of counsel), for Police Conference of New York, Inc., amicus curiae, in the first above-entitled action.

Paul A. Crotty, Corporation Counsel of New York City (Pamela Seider Dolgow and Linda H. Young, of counsel), for City of New York, amicus curiae, in the first through third above-entitled action.

Renaldo, Myers, Regan & Palumbo, P.C., Buffalo (James I. Myers, of counsel), for appellants in the second above-entitled action.

Lustig & Brown, Buffalo (Melinda W. Ebelhar, of counsel), for Carol Braun and others, respondents in the second above-entitled action.

Quinn, McGarry & Caffery, P.C., Buffalo (David C. Quinn, of counsel), for Leonard J. Zane, respondent in the second above-entitled action.

Maloney, Gallup, Roach, Brown & McCarthy, P.C., Buffalo (J. Mark Gruber, of counsel), for Benito Olivieri, respondent in the second above-entitled action.

William V. O'Leary, Duncan & O'Leary, Albany, for New York State Ass'n of Fire Chiefs, Inc., amicus curiae, in the second above-entitled action.

Edward M. Cooke, Monticello, for Firemen's Ass'n of the State of New York, amicus curiae, in the second above-entitled action.

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, in the second above-entitled action and for New York State Trial Lawyers Ass'n, amicus curiae in the third above-entitled action.

Lombardi, Reinhard, Walsh & Harrison, P.C., Albany (Paul E. Davenport, of counsel), for New York State Professional Firefighters Ass'n, amicus curiae, in the second above-entitled action.

Monsour, Winn, Kurland & Warner, Lake Success (B. Jennifer Jaffee, of counsel), for appellants in the third above-entitled action.

Lawrence Heisler, Albert C. Cosenza and Lawrence A. Silver, Brooklyn, for respondent in the third above-entitled action.

OPINION OF THE COURT

TITONE, Judge.

In Cooper v. City of New York, 81 N.Y.2d 584, 601 N.Y.S.2d 432, 619 N.E.2d 369, we held that, pursuant to the firefighter rule, police and firefighters may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment. These three appeals require us to determine the scope of this bar to recovery. We conclude that the firefighter rule precludes a police officer or firefighter from recovering in tort when the performance of his or her duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury. Applying that test in each of these cases before us, we hold that all three plaintiffs are barred from recovering on their common-law negligence claims. In Raquet v. Braun, 201 A.D.2d 910, 607 N.Y.S.2d 799, however, we hold that the plaintiff firefighters' statutory claims pursuant to General Municipal Law § 205-a should be reinstated.

I. Background

In Zanghi v. Niagara Frontier, 203 A.D.2d 960, 611 N.Y.S.2d 407, plaintiff Police Officer Zanghi, who had been assigned to the Greyhound Bus Terminal during a bus driver strike, was injured when he slipped and fell on a snow-covered metal plate as he was approaching a picketer who was packing snowballs, presumably to throw at departing buses. Plaintiff, and his wife derivatively, sued defendants Niagara Frontier Transportation Commission, Niagara Frontier Transit Authority, the owner of the property, ¹ and Greyhound, its tenant, on a negligence theory, alleging specifically that defendants failed to protect him from a "hidden hazard" on the premises--the metal plates rendered slippery by the snow.

In Raquet v. Braun, Volunteer Firefighter Mitchell Spoth died and Volunteer Firefighter Frank Raquet was paralyzed from injuries sustained when the canopy roof on a building addition and a portion of the addition's masonry wall collapsed during a blaze in November 1984. Alleging common-law and statutory negligence claims, the Raquet and Spoth plaintiffs sued defendants Leonard Zane, the owner of the building, and the contractors Zane had hired in 1972 to design and construct the addition, including defendants Carol Braun, a professional engineer, J.M. Braun Builders, the contractor who erected the canopy roof, and defendant Benito Olivieri, individually and doing business as Mason Construction, Inc., the mason who constructed the addition's exterior wall. Specifically, plaintiffs alleged that all defendants were negligent because the building was not constructed in compliance with the approved plans and standard procedure. According to plaintiffs, the resulting defects in the structure caused the building to abnormally collapse outward instead of inward, leading to the death and injury of the two firefighters who were positioned on the street. The statutory claims were brought pursuant to General Municipal Law § 205-a based on all defendants' alleged violations of the State Building Construction Code and the Town of Clarence Code. Included in the General Municipal Law cause of action was the allegation that defendant Leonard Zane failed to obtain a certificate of occupancy for the expanded building as required by the building permit (see, Town of Clarence Code § 30-78[A].

In the third case, Ruocco v. New York City Tr. Auth., 204 A.D.2d 76, 611 N.Y.S.2d 513, two police officers, plaintiffs Robert Ruocco and Michael Falcone, were injured when they fell while rushing down a flight of stairs leading into the subway in response to a radio call for assistance from another officer. After they fell, the officers noticed that the stairs were wet and that an employee of the New York City Transit Authority (NYCTA) was standing at the bottom of the stairs with a mop and pail of water. Plaintiffs, and Josephine Falcone derivatively, sued defendant NYCTA in common-law negligence. Specifically, plaintiffs alleged that defendant failed to properly maintain the subway stairway, "which was cracked, worn, uneven, dirty and wet" at the time of the accident, and failed to warn of the danger.

All three sets of defendants moved to dismiss the respective complaints against them on the ground that the common-law negligence action was barred by the "firefighter rule." In each of the cases, the respective trial courts denied the defendants' motions, citing the "separate and apart" exception to the firefighter rule, which would permit a common-law negligence action to go forward if the conduct causing the injury was independent of the conduct for which the officers and firefighters had been summoned. In Raquet, the trial court additionally declined to dismiss the statutory claims, specifically rejecting the argument of defendants Braun, J.M. Braun Builders, and Olivieri that General Municipal Law § 205-a claims could only be brought against owners or occupants of the premises, and not against architects or contractors who worked on the premises years prior to the fire and collapse of the structure.

The rulings on the common-law claims were reversed by the Appellate Division in each case on the ground that the "separate and apart" exception had been rejected by this Court in Cooper v. City of New York, 81 N.Y.2d 584, 601 N.Y.S.2d 432, 619 N.E.2d 369, supra. The uniform conclusion was that all of the common-law negligence claims were barred by the firefighter rule because the injuries were caused by the particular types of risks that the respective police officers and firefighters had assumed as part of their duties. Additionally, in Raquet v. Braun, the Appellate Division dismissed the statutory claims against all defendants, holding that violations of building codes do not give rise to liability pursuant to General Municipal Law § 205-a because they do not " 'create hazards additional to those that firefighters already face in their profession' (Kenavan v. City of New York, [70 N.Y.2d 558,] 567 [523 N.Y.S.2d 60, 517 N.E.2d 872]." (201 A.D.2d, at 911, 607 N.Y.S.2d 799.)

We affirm the dismissal of the negligence claims in all three cases. We modify in Raquet by reversing and reinstating the statutory claims against defendant Leonard Zane, and otherwise affirm the dismissal of the common-law negligence claims.

II. Common-Law Negligence Claims

The "firefighter's rule," a product of this State's long-standing common law, precludes firefighters and police officers from recovering damages for injuries caused by "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). The rule is applied to bar common-law negligence claims where "the injury sustained is related to the particular dangers which police officers [and firefighters] are expected to assume as part of their duties" (Cooper v. City of New York, 81 N.Y.2d 584, 590, 601 N.Y.S.2d 432, 619 N.E.2d 369, supra).

The rationale for applying the firefighter rule...