The Firefighter Rule

The Firefighter Rule

Cibelli v Episcopal Diocese of New York, NYS Supreme Court, Justice Liebowitz, Not selected for publication in the Official Reports

In the Cibelli case, New York State Supreme Court Justice Liebowitz outlines the common law “firefighters rule” and the impact of recent amendments to the General Municipal Law on the application of the common law rule.

In this case a firefighter sued to recover for personal injuries suffered while fighting a fire at a Diocese church. Justice Liebowitz ruled:

1. Cibelli's action was barred by the “firefighter rule;” and

2. Cibelli failed to establish a prima facie case under General Municipal Law Section 205-a, dealing with injuries resulting from fire code and other statutory violations.

As to the “firefighters rule,” the court explained:

It is established law in this State that a firefighter injured in the line of duty is not entitled to recover for the injuries sustained on the theory of common law negligence. In other words, firefighters are barred from recovering damages for injuries resulting from the special risks inherent in the duties they are called to perform.

The rationale for this rule is that firefighters and police officers are trained and compensated to confront dangers and are therefore precluded from recovering damages for the very situations that create a need for their services. Further, “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.”

Therefore, when firefighters act in furtherance of their duties, which expose them to a heightened risk of sustaining injury, he or she may not recover damages for common law negligence.

Turning to the recent amendments to the General Municipal Law [GML], Justice Liebowitz commented that GML 205-a allows firefighters or representatives of deceased firefighters to sue where an injury “occurs directly or indirectly as a result of any neglect ... or negligence of any person or persons in failing to comply with the requirements of any statutes, ordinances, [or] rules ...” during the discharge of his or her duty.

According to the ruling, in enacting GML 205-a the Legislature intended to protect firefighters from additional dangers resulting from fire prevention code violations and other statutory violations, without the application of the assumption of risk doctrine. The problem here, said Justice Liebowitz, is that Cibelli failed to establish any facts or offer any proof that the Diocese violated any sections of the code.

Finally, Justice Liebowitz rejected Cibelli's argument that he could sue pursuant to General Obligations Law [GOL] Section 11-106. GOL 11-106, said the court, applies only when the “injury is proximately caused by the neglect, willful omission, or intention, willful or culpable conduct of any person or entity other than that ... firefighter's employer or co-employee.” Again Justice Liebowitz decided that Cibelli failed to establish that the Diocese's action or inaction was a proximate cause of his injury.

Working at home is not a reasonable accommodation for a disabled supervisor

Working at home is not a reasonable accommodation for a disabled supervisor

Kvorjak v State of Maine, CA1, 259 F.3d 48

Sometimes granting a disabled employee's request to work at home constitutes a reasonable accommodation of his or her disability. At other times such a request would not constitute a “reasonable accommodation” for the purposes of the Americans With Disabilities Act [ADA].

In the Kvorjak case the U.S. Circuit Court of Appeals, First Circuit, ruled that allowing an individual who is required to supervise other employees to work at home is not a reasonable accommodation for the purposes of the ADA.

Brian Kvorjak, a State of Maine Employment Claims Adjudicator, sued his former employer, the Maine Department of Labor, contending that its refusal to allow him to work at home as an accommodation of his disability violated the ADA.

Kvorjak is partially paralyzed as a result of spinal bifida. He was successfully employed by the State of Maine for twenty-two years, the last seven and one-half with the Department of Labor's Division of Unemployment Field Services. As the result of an economy move, Kvorjak's workstation was relocated and his ten-minute commute to work jumped to a ninety-minute trip.

Although Kvorjak was offered relocation expenses if he moved closer to his new work location, he refused to do so and he was laid off on June 18, 1997. Instead of relocating, Kvorjak had asked to be permitted to work out of his home.

In response to Kvorjak's allegation that the Department's rejection of his request to work at home violated federal and state disability laws, the State argued that it was not obliged to accommodate Kvorjak because his request to work at home stemmed not from his disability but from a personal preference against moving. It emphasized that Kvorjak could not, in any event, perform the essential functions of the claims adjudicator position from his home.

The federal district court concluded as a matter of law that Kvorjak could not perform “several important functions” of the position while working at home. The Circuit Court affirmed the lower court's ruling, pointing out that the individual has the burden of proposing an accommodation that would enable him or her to perform his or her job effectively and is, at least on the face of things, reasonable.

The ruling states that the record demonstrated that the essential functions of a claims adjudicator cannot be performed at an individual employee's home. As Kvorjak failed to introduce any evidence to rebut this, the Circuit Court said that he failed to meet his burden and, thus, granting summary judgment to the State was appropriate.

Accidental disability retirement

Accidental disability retirement

Michalczyk v NYSERS, 286 AD2d 852

Whether or not an employee has reported for work and whether or not the individual's injury resulted from an accident were the critical issues raised in considering Henry Michalczyk's application for accidental disability retirement benefits.

Michalczyk was employed as a Security Hospital Supervising Treatment Assistant at a State psychiatric center. He was injured as a result of two falls. However, his application for accidental disability retirement benefits was denied by the New York State Employees' Retirement System [ERS].

As to his first fall, Michalczyk said he fell while he was walking across an icy parking lot on his way to work. According to Michalczyk, the process of reporting to work at the psychiatric center involved passing through a metal detector, showing identification and obtaining keys. None of these steps had been taken prior to his fall.

The Appellate Division pointed out that it had “repeatedly held” that an employee who is injured before reporting for work is not eligible for accidental disability retirement benefits because he or she was not “in service” when the injuries were sustained. Since Michalczyk had not yet reported for work at the time of his fall, the court ruled that substantial evidence supported ERS's determination denying his claim for disability retirement benefits.

Michalczyk's claim based on the injury he suffered as a result of his second fall raised a different issue: what is an accident.

Michalczyk was injured as a result of a fall while at work on August 18, 1997 -- he slipped while descending a flight of stairs at his work place in the course of making his daily inspection rounds.

Michalczyk testified that he had routinely used the stairs without incident on a daily basis prior to his fall. It was further established that the stairs were clean and unobstructed at the time of Michalczyk fell.

ERS ruled that this mishap was not the product of an “accident” within the meaning of the Retirement and Social Security Law [RSSL].

In Lichtenstein v Board of Trustees of Police Pension Fund, 57 NY2d 1010, the Court of Appeals said that an accident for the purposes of entitlement to accidental disability benefits under RSSL is a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.”

The court sustained ERS's determination, commenting that “[g]iven [Michalczyk's] routine use of the stairs in performing his daily employment duties, his fall cannot be construed as the result of an extraordinary or unexpected event; hence, it was properly found to result from his own misstep and not the type of accident that would render him eligible for benefits.”

Irresistible impulse as a defense in a disciplinary action

Irresistible impulse as a defense in a disciplinary action

Perry v Comm. of Labor, 283 AD2d 754

Readers may recall that in the 1959 movie Anatomy of a Murder actor James Stewart successfully defended an individual indicted for murder on the theory his client's actions were the product of an “irresistible impulse.”

Unemployment insurance claimant John K. Perry was not as successful with this theory in challenging a determination by the Unemployment Insurance Appeals Board denying him benefits after finding that his employment was terminated due to his misconduct.

The nature of Perry's alleged misconduct: his misuse of his employer's computer equipment.

Perry, a human resource specialist, was terminated after his employer discovered that he used his computer terminal to frequently access pornographic websites during working hours.

Perry's defense: his behavior was nonvolitional given his “impulse control disorder”. He produced a letter from his psychologist indicating that he suffered from posttraumatic stress disorder displayed in the form of obsessive behavior such as accessing pornographic websites. However, said the court, the evidence failed to establish that Perry was unable to control this impulse while working.

The Appellate Division's conclusion:

Since Perry disregarded his employer's policy against accessing inappropriate websites at work, substantial evidence supports the Board's decision that Perry lost his employment due to disqualifying misconduct.

Challenging a Section 75 disciplinary settlement agreement

Challenging a Section 75 disciplinary settlement agreement

Johnston v Triborough Bridge and Tunnel Auth., NYS Court of Appeals, 97 NY2d 627

Edward P. Johnston, an employee of the Triborough Bridge and Tunnel Authority [TBTA], was involved in an after-hours altercation during which his service revolver discharged. As a result, disciplinary charges were filed against him pursuant to Section 75 of the Civil Service Law.

On April 12, 1989, Johnston and the TBTA settled the disciplinary action and Johnston signed a “Waiver of Section 75 Hearing and Acceptance of Recommended Penalty.” The waiver included the following provisions:

1. Johnston agreed to waive his right to a disciplinary hearing pursuant to Civil Service Law Section 75 and his right to file an appeal pursuant to Civil Service Law Section 76;

2. Johnston agreed to serve a probationary period of 12 months “exclud[ing] all time during which he was not on duty;” and,

3. During this disciplinary probationary period, the TBTA, in its sole discretion, could dismiss him for any new violation of its rules or regulations.

Johnston, while serving his disciplinary probationary, was injured while on duty. As a result he was absent from work from August 19, 1989 until October 1996. In June 1997, following allegations that he had abandoned his post without authorization, TBTA dismissed Johnston without a hearing.

Johnston appealed his termination to the New York City Civil Service Commissioner, arguing that he was no longer on probation on the effective date of his dismissal. This, he contended, meant that was entitled to a hearing pursuant to Civil Service Law Section 75 before he could be terminated.

Johnston based his claim on the theory that his probationary period should be calculated in calendar days. TBTA, on the other hand, contended that the calculation should be based his workdays --only on the days Johnston actually worked, in this instance 253 days. Thus, TBTA argued, Johnston was still serving his disciplinary probation when he was dismissed.* 

As to Johnston's right to appeal to the City's Civil Service Commission, TBTA contended that the Commission lacked jurisdiction to hear the appeal because the settlement agreement specifically provided that Johnston waived his Section 76 rights of appeal.

The Commission agreed, dismissing Johnston's appeal on the ground that it did not have jurisdiction. The Appellate Division, however, sustained a lower court's ruling that “the Commission was bound to construe the 1989 agreement to ascertain whether the waiver therein remained effective at the time of petitioner's termination” [Johnston v TBTA, 278 AD2d 34-35]. The Court of Appeals reversed this holding.

The Court of Appeals held that Section 76 “solely authorizes the Commission to hear appeals from hearings in connection with disciplinary proceedings under section 75.” As there was no such proceeding in Johnston's case, the Commission had no jurisdiction to hear his application to review his discharge, which was not effected under Section 75.

The Court also commented that Section 76(2) limits the Commission's review to the record and transcript of the disciplinary hearing. As there was no record or transcript in this instance, the Commission had no jurisdiction to determine the matter.

In contrast, the Court of Appeals noted that Johnston “could have brought an Article 78 proceeding at the time of his dismissal in June 1997 challenging the TBTA's conclusion that he was a probationary employee” [emphasis supplied], which he failed to do. Accordingly, the Court held that Johnston “cannot reassert his contentions by appealing to the Commission because its jurisdiction is explicitly limited to appeals of Section 75 determinations.

* Typically probationary periods are automatically extended for a term equal in length to the probationer's absence during his or her probationary period. In many jurisdictions the rules allow the appointing authority, at its discretion, to deem part or all of such absence[s] “time served” as a probationer. One notable exception: a probationer who is called to active military duty is deemed to have satisfactorily served in his or her probationary period while on military leave if he or she is honorably released from military service and is subsequently timely reinstated from such leave.