Slipping and falling as the result of an undetectable unknown substance on road constitutes an accident within the meaning of the Retirement and Social Security Law
Sammon v DiNapoli, 2012 NY Slip Op 05587, Appellate Division, Third Department
City of Yonkers Firefighter Michael M. Sammon’s application for accidental disability retirement benefits was denied by the New York State Employees’ Retirement System.
Sammon had fallen when “his foot gave way on a slippery spot on the ground.” As a result he was unable to continue performing the duties of a firefighter. Ruling that Sammon’s disability did not result from an accident within the meaning of Retirement and Social Security Law, the System approved his application for performance of duty disability benefits.*
Sammon filed an Article 78 petition challenging the System’s determination.
The Appellate Division annulled the System’s ruling disapproving Sammon’s application for accidental disability retirement benefits explaining that to qualify as an accident within the meaning of Retirement and Social Security Law §363, the "cause of the injury [that resulted in the disability] must be a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." Further, said the court, the burden rests on the applicant to demonstrate that the injury was accidental.
The Appellate Division held that Sammon satisfied both tests.
As to “slip and fall incidents,” the question of whether an accident occurred turns on whether the condition that caused the slip could have been "reasonably anticipated." Sammon and his coworker testified that the spot on the ground on which he slipped was an unknown substance that blended in with the roadway and was, thus, undetectable.
As this event occurred during the summer and there is no indication that there was inclement weather, the Appellate Division said that it could not agree with System that the fact that sometimes slippery surfaces exist in public roadways is alone enough to conclude that Sammon should have reasonably anticipated the spot on which he slipped.
The court distinguished the situation in Sammon’s case from those involving [1] an individual who was not aware of ice prior to falling but who had observed snow on ground and acknowledged parking lot” iced over in past” and [2] an applicant who did not see an oily substance on stairs but had been warned by a building inspector just prior to falling that stairs were slippery.
* Sammon's had filed an application for accidental disability retirement benefits and, in the alternative, an application for performance of duty disability retirement benefits.
The decision is posted on the Internet at:
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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.
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