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Monday, June 07, 2010
Suing for damages for a "line of duty injury" suffered in the course of performing firefighter and police officer duties
Alcalde v Riley, 2010 NY Slip Op 04528, Decided on May 25, 2010, Appellate Division, Second Department
The so-called Firefighters Rule, which has been extended to police officers,* bars firefighters and police officers from recovering for line of duty injuries that occur as a result of the specific risks inherent in performing the duties of firefighter or police officer.
The Firefighters Rule, however, has been tempered by General Municipal Law §205-a and by General Obligations Law §1-106.
In Alcalde the Appellate Division explores these two provisions of law in considering the lawsuit brought by Jason Alcalde, a New York City firefighter, against a number of defendants, including homeowner Jacqueline Riley, to recover damages for personal injuries he allegedly sustained while responding to a fire at Riley's single-family home in Queens, New York.
The court explained that GML §205-a “provides a right of action for firefighters where the negligence of any person in failing to comply with the requirements of any of the statutes, ordinances, or rules of the federal, state, or local governments directly or indirectly caused the firefighter's injury or death during the discharge of his or her duty,” while GOL §11-106 ”largely abolished the former so-called ‘firefighter's rule’ by giving firefighters a cause of action in negligence for injuries suffered while in the line of duty except as to actions against municipal employers and fellow workers.”**
In the event a firefighter seeks to recover for injuries pursuant to GML §205-a, he or she must "identify a statute or ordinance with which the defendant failed to comply," and must "set forth facts from which it may be inferred that the defendant's negligence directly or indirectly caused" his or her injuries.”
The court then indicated that GOL §11-106 provides that "[i]n addition to any other right of action or recovery otherwise available under law, whenever any . . . firefighter suffers any injury, disease or death while in the lawful discharge of his official duties and that injury, disease or death is proximately caused by the neglect, willful omission, or intentional, willful or culpable conduct of any person or entity, other than that . . . firefighter's employer or co-employee, the . . . firefighter suffering that injury . . . may seek recovery and damages from the person or entity whose neglect, willful omission, or intentional, willful or culpable conduct resulted in that injury."
Here, said the Appellate Division, the fire incident report stated that the fire originated "in combustible roofing material on the roof of the first-floor rear setback and that the cause of the fire was the reckless use of an open flame...."
Although homeowner Jacqueline Riley's made a prima facie showing that she neither created, nor had actual or constructive notice of, any dangerous condition on the subject premises that resulted in Alcalde‘s injuries, the Appellate Division said that Alcalde raised a triable issue of fact through the expert affidavit of Michael F. Cronin, the principal of a consulting firm specializing in the areas of fire protection, fire safety, and fire analysis.
Cronin stated that a blocked interior staircase at the premises constituted a safety hazard that increased the likelihood of harm to the Alcalde.
As Riley's son-in-law had indicated that Riley resided in the house around the time of the fire, the Appellate Division concluded that there is a triable issue of fact as to whether Riley had actual or constructive notice of the blocked staircase that allegedly contributed to Alcalde’s injuries.
Accordingly, said the Appellate Division, Supreme Court’s granting Jacqueline Riley’s motion for summary judgment dismissing the complaint against her was incorrect and reversed the lower court’s order.
* See Santangelo v City of New York, 71 NY2d 393
** These provisions do not affect the eligibility of firefighteres for GML §207-a benefits or the eligiblilty of police officers for GML §207-c benefits.
N.B. An employer may be able to seek reimbursement from a third party "person or entity" for benefits it paid to disabled firefighters pursuant to GML §207-a. or for benefits paid to police officers puruant to GML §207-c.
GML §207-a.7 provides that "Notwithstanding any provision of law contrary thereto contained herein or elsewhere, a cause of action shall accrue to the municipality or fire district aforesaid for reimbursement in such sum or sums actually paid as a salary or wages and/or for medical or hospital treatment treatment, as against any third party against whom the fireman shall have a cause of action for the injuries sustained.
Similarly, §207-a.6 provides that "Notwithstanding any provision of law contrary thereto contained herein or elsewhere, a cause of action shall accrue to the municipality for reimbursement in such sum or sums actually paid as salary or wages and or for medical treatment and hospital care as against any third party against whom the policeman shall have a cause of action for the injury sustained or sickness caused by such third party."
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04528.htm
For information about PELP's e-book Disability Retirement and General Municipal Law Sections 207-a/c go to: http://booklocker.com/books/3916.html
The Layoff, Preferred List and Reinstatement Manual - a 435 page handbook reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html
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