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NYC Cops Catch Break

State:  NY

Police Officer Can Sue City in Tort for Injury in Line of Duty:

By Sherri Okamoto, legal reporter

A New York appellate court last week ruled that a police officer who suffered injuries while loading barricades onto a flatbed truck could sue her employer in tort.

The so-called "firefighter's rule" normally bars police officers and firefighters from pursuing negligence actions based on injuries that occur in the line of duty. But the Appellate Division, 2nd Department reasoned that New York City police officer Allison Gammons could recover damages pursuant to General Municipal Law Section 205-e after showing that her employer had violated its general duty under the Public Employee Safety and Health Act to provide her with a safe work environment.

David Kremen of Oshman & Mirisola, counsel for Gammons, explained that workers' compensation is not an available remedy for New York City police officers, so the civil action provided by Section 205-e helps "undo the harshness of the firefighter's rule, to some extent."

Section 205-e allows an officer to bring a tort action against her employer based on her employer's failure "to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus."

The Court of Appeals – in a 2000 case called Galapo v. City of New York – has interpreted this language as requiring that an officer be able to demonstrate a "negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties" on the officer's employer as a prerequisite to recovery.

Kremen argued that PESHA, which is codified as Labor Law Section 27-a, was a "well developed body of law and regulation that imposed clear duties" on the city, so a violation of a duty imposed by the act could serve as the predicate for an officer's Section 205-e claim against her employer. He said the city was liable to his client because it required her to work on a flatbed truck that lacked a rear guard rail.

PESHA adopted the workplace safety standards contained in the Occupational Safety and Health Act and applied them to New York's public-sector employees. The law requires that employers shall "furnish to each of its employees, employment and a place of employment which are free from recognized hazards," and "provide reasonable and adequate protection to the lives, safety or health of its employees."

The city argued that a violation of this general duty to provide a safe workplace could never serve as a basis for a police officer's Section 205-e claim. Since Section 27-a "certainly casts a broad net and would provide for a lot of scenarios where the city could be liable for injuries to its officers,"

Kremen said he understands why the city would want to take this stance. However, he said that if an officer can't use a violation of Section 27-a as a predicate violation for Section 205-e, "that would be basically eviscerating the statute."

Additionally, Kremen contended that it "makes no sense" to treat "the largest body of regulation in the country for worker safety" as not being "a well-developed body of law and regulation."

The attorney observed that New York's appellate courts have previously treated a violation of Section 27-a as a predicate violation for a Section 205-e claim, but "those decisions never took up the issue of whether it could be a predicate in the first instance."

Last Wednesday's decision in Gammons v. City of New York, he said, was the first time he was aware of an appellate division squarely addressing the issue, and the court ruled that a violation of Section 27-a's general duty can be a predicate violation for a Section 205-e claim.

Gammons, a New York City police officer, injured herself in September 2008 when she fell from the bed of a city-owned truck while working with her fellow officers to load some police barricades onto it.

The truck was equipped with side railings that were approximately 3 feet high; however, there was no railing on the rear of the truck. The barricades which Gammons and her fellow officers were loading into the truck were also longer than the bed of the truck.

She sued the city for common-law negligence and for violation of Section 205-e, but the city moved for summary judgment on both of her claims.

Kings County Supreme Court Justice Kenneth P. Sherman found that the firefighter rule barred Gammons from bringing her common-law negligence suit since she was engaged in an act in furtherance of a specific police function when she was injured. The justice, however, said Gammons could proceed with her Section 205-e claim.

The Appellate Division's 2nd Department said Sherman's rulings were right.

Gammons could not assert a common-law negligence claim because her fall "was directly related to the particular risks and dangers which she was expected to assume as part of her duties as a police officer assigned to barrier truck detail," the court said.

However, the court reasoned that the alleged factors which caused Gammons to fall – namely the lack of a rear railing on the truck and the failure to use a longer truck to transport the barriers – were not "risks unique to police work," and were "the kinds of occupational hazards that PESHA was designed to redress."

The court acknowledged that Section 27-a imposes a "general duty of care," but emphasized "that duty is nonetheless clear, as it requires public employers to provide their employees with a work area that is free from recognized hazards." Since the statute "provides an objective standard by which the actions or omissions of a public employer, such as the city, can be measured for purposes of liability," the court concluded that it could serve as a predicate for a police officer's Section 205-e claim.

Stephen J. McGrath, Margaret G. King and Michael Shender of the New York City Law Department represented the city.

Shender on Wednesday issued a statement saying that "we respectfully disagree with the Appellate Division's interpretation of the law and are considering our appellate options."

Kremen, the attorney for Gammons, said the case will head to trial on whether the city in fact had breached its duty under Section 27-a if the city does not pursue a further appeal.

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