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May 6, 2013

Employer held liable for employee’s failure to call for assistance when asked to do so by police officers


Employer held liable for employee’s failure to call for assistance when asked to do so by police officers
Filippo v New York City Tr. Auth., 2013 NY Slip Op 03025, Appellate Division, First Department
Jannet Velez v 2013 NY Slip Op 03025, Appellate Division, First Department

Two police officers were injured in a subway station as the result of an individual’s resisting arrest. The criminal act leading to the arrest was committed in the street in the presence of the police officers who chased the perpetrator into the subway station.

Upon entering the station the police officers, who were in plainclothes, displayed their shields and asked the station agent to “call for backup” support. The station agent was inside a locked token booth that was equipped with an Emergency Booth Communication System (EBCS) that would have enabled him to summon help by pressing a button or stepping on a pedal.

Both police offers were injured when the perpetrator put up “a fierce and protracted struggle to resist arrest.” The station agent, however, watched the struggle from his token booth and did not activate the EBCS or make any other attempt to summon help.

The police officers sued the Transit Authority on the theory is that station agent’s failure to call for help constituted negligence which was a proximate cause of their injuries. Although Supreme Court granted the Transit Authority's motion for summary judgment, finding that the station agent was under no duty to call for any assistance, the Appellate Division reversed the lower court’s ruling.

The court explained that Public Authorities Law §1212(3) imposes liability upon the Transit Authority for the negligence of its employees in the operation of the subway system and is held to a duty of ordinary care under the particular circumstances of each case.

In Crosland v New York City Tr. Auth. 68 NY2d 165, the Court of Appeals held that the Transit Authority could be held liable for the negligent failure of its employees to summon aid as they watched a gang of thugs fatally assault a passenger. The Appellate Division said that the trial court’s holding that Crosland had no application in this instance because the plaintiffs were police officers was incorrect.

Noting that General Obligations Law §11-106 gives police officers as well as firefighters, who are injured in the line of duty, “a distinct right of action against tortfeasors that cause such injuries,” the Appellate Division said that the police officer’s lawsuit was not barred by their status as police officers and the Transit Authority's liability was established at trial.

In addition, the court rejected the Transit Authority argument that the evidence did not establish that a timely response on station agent’s part would have prevented the police officer from being injured as “this argument was raised for the first time on appeal” but indicated that if it were properly before the court it “would find it unavailing.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_03025.htm

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