In New York, police officers and firefighters injured in the line of duty have two potential causes of action: common law negligence and a statutory cause of action pursuant to General Municipal Law, Section 205-a, for firefighters and General Municipal Law, Section 205-e, for police officers.
Prior to 1996, the firefighter’s rule provided that police and firefighters assume the ordinary, inherent risks of their highly dangerous employment, and may not sue in common law when such dangers result in an injury. The common law claim was barred if “the performance of his or her duties increase[s] the risk of the injury happening and did not merely furnish the occasion for the injury.” For instance, where a police officer “is injured by a suspect who struggles to avoid an arrest, the rule precludes recovery because the officer is specially trained and generously compensated to confront such dangers.” Zanghi v. Niagara Frontier Transportation Commission, 85 N.Y.2d 423 at 440, 626 N.Y.S.2d 23 at 28 (1995). But, “if a police officer who is simply walking on foot patrol is injured by a flowerpot that fortuitously falls from an apartment window, the officer can recover damages because nothing in the action undertaken placed him or her at increased risk for that accident to happen.” Id.
Then in 1996, the New York State Legislature enacted General Obligations Law §11-106 making the rule applicable only in actions against a “police officer’s or firefighter’s employer or co-employee.” As to private defendants there is no longer any “firefighter’s defense.” So, if a police officer trips and falls on a New York City sidewalk while pursuing a perpetrator, the case is dismissed as against the city of New York, but there is still a viable common law negligence cause of action against the adjoining private property owner. Cosgriff v. City, 241 A.D.2d 382, 659 N.Y.S.2d 888 (1st Dept. 1997). In Brady v. City of New Rochelle, 296 A.D.2d 365, 744 N.Y.S.2d 494 (2d Dept. 2002), a police officer plaintiff was injured in a motor vehicle accident during a police training course. The Second Department affirmed dismissal of his case because he was performing his duties as a police officer at the time (heightened risk) and because he was suing his employer, his common law negligence action was barred by GOL 11-106.
Determining the Risk
The determination of whether injuries resulted from risks “associated with the particular dangers inherent” in police work or firefighting is fact-specific. The Court of Appeals has recognized that the Appellate Division and trial court cases making this determination are many, and hard to reconcile. Wadler v. City of New York, 14 N.Y.3d 192, 899 N.Y.S.2d 73 (2010); citing Tighe v. City of Yonkers, 284 A.D.2d 325, 725 N.Y.S.2d 384 (2d Dept. 2001) (officer tripped over plate in street while walking to patrol car; firefighter rule not applied); Carter v. City of New York, 272 A.D.2d 498, 708 N.Y.S.2d 426 (2d Dept. 2000) (officer fell because of sidewalk defect while issuing summons; rule applied); Simons v. City of New York, 252 A.D.2d 451, 675 N.Y.S.2d 597 (1st Dept. 1998) (officer escorting complainant tripped over depression in roadbed; rule applied); Poveromo v. Avis Rent-A-Car Sys., 242 A.D.2d 467, 662 N.Y.S.2d 52 (1st Dept. 1997) (officer injured in police car that went over a metal bumper; rule applied); Olson v. City of New York, 233 A.D.2d 488, 650 N.Y.S.2d 291 (2d Dept. 1996) (firefighter fell in pothole while dismounting from fire truck; rule not applied); Siciliano v. City of New York, 16 Misc.3d 1129(A), 847 N.Y.S.2d 905 (Sup. Ct., Richmond Co. 2007) (officer fell in pothole while walking to vehicle; rule not applied). In Wadler, the Court of Appeals found that the firefighter rule applied because “[a]n act taken in furtherance of a specific police function—entry into a protected parking lot, which only plaintiff’s police credentials allowed him to enter—exposed plaintiff to the risk of this injury.”
However, where a police officer or firefighter’s duties merely furnish the occasion for the plaintiff’s accident but do not heighten the risk of injury, the firefighter rule does not apply. Delio v. City of New York, 8 A.D.3d 325, 777 N.Y.S.2d 911 (2d Dept. 2004); see also Olson v. City of NewYork, 233 AD3d 488 (2d Dept. 1996).
Whether a police officer is on duty or not is not dispositive of the application of the firefighter rule. The nature of a police officer’s job means he faces significant risks even when not on duty. Wadler 14 N.Y.3d 192; citing Levine v. Chemical Bank, 221 A.D.2d 175, 633 N.Y.S.2d 296 (1st Dept. 1995); Campbell v. Lorenzo’s Pizza Parlor, 172 A.D.2d 478, 567 N.Y.S.2d 832 (2d Dept. 1991). It is the nature of the risk that is dispositive of whether the firefighter’s rule applies or not.
In circumstances where a municipality is also the owner of the premises abutting the sidewalk where the plaintiff police officer or firefighter fell, the firefighter’s rule still bars recovery. For example, in Grogan v. City of New York, 259 A.D.2d 240, 699 N.Y.S.2d 12 (1st Dept. 1999), the plaintiff, a New York City police officer, tripped and fell while pursuing a suspect on an icy and broken sidewalk abutting city-owned property. The court held that GOL 11-106 precludes all claims against the employer in whatever capacity. As such, because the plaintiff tripped while pursuing a suspect, the injury arose from a heightened risk of the job and therefore, the action could not be brought at common law.
However, a municipality is not completely immune from liability when a police officer or firefighter is injured where the firefighter’s rule applies. General Municipal Law 205-a and 205-e provide statutory causes of action for firefighters and police officers respectively. Unlike the common law cause of action, recovery under Sections 205-a and 205-e is not subject to or circumscribed by the firefighter’s rule. In fact, recovery under these statutes cannot be diminished by the plaintiff’s own comparative negligence. See Mullen v. Zoebe, 86 N.Y.2d 135, 630 N.Y.S.2d 269 (1995)(GML 205-a); Warner v. Adelphi University, 240 A.D.2d 730, 660 N.Y.S.2d 50 (2d Dept. 1997)(GML 205-e).
To make out a claim under section 205-e, a plaintiff must “ identify the statute or ordinance with which the defendant failed to comply,  describe the manner in which the [police officer] was injured, and  set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm.” Williams v. City of New York, 2 N.Y.3d 352, 779 N.Y.S.2d 449 (2004); see also Giuffrida v. Citibank, 100 N.Y.2d 72, 760 N.Y.S.2d 397 (2003).
Prior to 1996, courts had held that a statute or regulation that simply reiterated a duty already owed at common law is not a sufficient predicate for a cause of action pursuant to GML 205-a and 205-e. GOL 11-106 decreed that GML 205-a and 205-e provide a cause of action regardless of whether the statute or regulation violated posed a duty also owed at common law and, further, regardless of whether the danger in issue was one inherent to police work or firefighting.
To serve as a statutory predicate, a statute must contain either a particularized mandate or a clear legal duty. Either standard will suffice so as long as the governmental standard is a well-developed body of law and regulation. Desmond v. City of New York, 88 N.Y.2d 455, 646 N.Y.S.2d 492 (1996).
Violations of the Vehicle and Traffic Laws (VTL) have been held to be sufficient predicates for GML 205-e liability. Schiavone v. City of New York, 271 A.D.2d 430, 706 N.Y.S.2d 895 (2d Dept. 2000). Administrative Code violations have also been found to be sufficient predicates. Maiello v. City of New York, 273 A.D.2d 284, 709 N.Y.S.2d 855 (2d Dept. 2000) (Plaintiff had a viable cause of action pursuant to GML 205-e based upon violation of The Administrative Code of The City of New York 27-127 and 27-128). The Penal Law is also a proper predicate for section 205-e liability provided that the section violated prohibits specific acts. Williams v. City of New York, 2 N.Y.3d 352, 779 N.Y.S.2d 449 (2004).
Violations of statutes providing only for general duties of care have been found insufficient as predicates for GML 205-a and 205-e liability. For example, Multiple Dwelling Law Section 78, requiring multiple dwelling owners to keep their buildings in good repair was “too general” to serve as a predicate for GML 205-a liability. Hayes v. City of New York, 264 A.D.2d 610, 695 N.Y.S.2d 328 (1st Dept. 1999) Labor Law 200, a codification of common law negligence, is also an insufficient predicate. Balsamo v. City of New York, 287 A.D.2d 22, 733 N.Y.S.2d 431 (2d Dept. 2001). By contrast, Labor Law 27(a), requiring every employer to furnish its employees with a work environment which is free from recognized hazards which may cause injury or harm was held by the Balsamo court to be a sufficient predicate because 27(a) was not permissive, but rather contained a specific mandate to provide a safe workplace.
In addition to statutory predicates, regulations have also been held to be viable predicates for GML 205-a and 205-e causes of action including violations of OSHA standards. McGovern v. City of New York, 294 A.D.2d 148, 742 N.Y.S.2d 218 (1st Dept., 2002). In McGovern, the First Department held that an OSHA regulation can serve as a predicate to a 205-a claim because it is part of a well-developed body of law that imposes a clear legal duty.
In contrast, courts have held that a violation of the police patrol guide is an insufficient statutory predicate for 205-e liability. In Gervasi v. Pateay, 254 A.D.2d 172, 679 N.Y.S.2d 45 (1st Dept. 1998), the patrol guide sections cited by the plaintiff could not support a GML 205-e claim since the “sections cited by the plaintiff were not part of a well developed body of law and regulation.” See also Flynn v. City of New York, 258 A.D.2d 129, 693 N.Y.S.2d 569 (1st Dept. 1999) (cause of action pursuant to GML 205-e was limited to “non-compliance with well developed bodies of law and regulations” which “imposed clear duties” and neither the patrol guide nor the training manual (requiring helmets) constituted a well-developed body of law or regulation); Malenczak v. City, 265 A.D.2d 532, 697 N.Y.S.2d 138 (2d Dept. 1999) (alleged violation of a city police patrol guide procedure could not serve as a predicate to amend the complaint to add a cause of action to allege a GML 205-e violation).
Even if a plaintiff establishes a statutory or regulatory predicate, he still must establish that the violation was a proximate cause of the injury. A plaintiff must establish a practical or reasonable connection between the predicate violation and the injury sustained by the plaintiff. Abbadessa v. City of New York, 269 A.D.2d 341, 702 N.Y.S.2d 869 (2d Dept. 2000); Betterly v. Estate of Silver, 266 A.D.2d 30, 698 N.Y.S.2d 17 (1st Dept. 1999) (failure of the landlord to install window guards and locked exterior doors in an apartment building in violation of the Administrative Code provision requiring the same was not the proximate cause of a police officer’s fall while in an apartment while attempting to apprehend a prisoner).
For example, in Sconzo v. EMO Trans, 295 A.D.2d 493, 744 N.Y.S.2d 471 (2d Dept. 2002), the plaintiff police officer was checking the roof of defendant owner’s building for evidence of criminal activity and set up a ladder with a defective hinge which broke, sending him to the ground. This was held insufficient to prove a practical or reasonable connection between the violation and the injury and the cause of action failed under 205-e.
While the firefighter’s rule no longer benefits private defendants, it still provides a strong, but not airtight defense for municipalities.
Brian P. Heermance is a partner and Jamie K. McAleavey is an associate in the New York office of Morrison Mahoney.