Police Officers to Sue for Negligence
As part of our continuing commitment to provide
outstanding representation and to serve as an information resource, we wish to
inform you of a recent decision by the Court of Appeals concerning the right of
police officers to sue for negligence.
The dangers and hazards of working as a police officer
are obvious and well documented. One of
the lesser known areas of negligence law is where police officers are permitted
to sue third-parties for negligence for injuries sustained in their work as
police officers. General Municipal Law ("GML")
Section 205-e contains a cause of action allowing police officers to sue for
injuries sustained in the line of duty as a result of any neglect, or failure to comply with the
requirements of any statutes, ordinances, rules or orders of a government
entity. This statute was adopted by the
Legislature to overrule a prior Court of Appeals decision which had barred
police officers from maintaining common law negligence actions for injuries
sustained in the line of duty. Following
the initial enactment of GML Section 205-e, the legislature enacted several
amendments which enlarged police officers right to sue under GML Section
205-e. In order for a police officer to
assert a claim under GML Section 205-e, a plaintiff must identify the statute
or ordinance with which the defendant failed to comply. A recent case by the Court of Appeals
applying statutory and case law illustrates this principal.
In Gammons v. City
of New York, a former police officer was injured when she fell from a New
York City Police Department flatbed truck while she and fellow officers loaded
a truck bed with police crowd control barriers in Brooklyn. Plaintiff sued the City claiming the vehicle
was too short for safe barrier transport, and alleged a violation of OSHA as a
private cause of action against the City.
As a statutory violation predicate, plaintiff relied on Labor Law
Section 27-a(3)(a)(1), also known as the Public Employees Safety and Health Act
("PESHA") which provides that every employer shall furnish each of
its employees a place of employment free from hazards capable of causing death
or serious injury to its employees and which will provide reasonable and
adequate protection to its employees.
This is often called a "general duty" clause.
The City moved for summary judgment claiming that
plaintiff did not meet the requirements of GML Section 205-e in that the
statutes that she cited could not form
the basis for her cause of action. The
Court of Appeals disagreed and affirmed the Appellate Division which denied the
City summary judgment. The Court of
Appeals rejected the City’s argument that the PESHA did not contain an express
cause of action thus barring plaintiff’s suit.
The Court of Appeals found that GML Section 205-e does not require that
the predicate for a police officer’s cause of action contain an existing right
to sue.
The Court of Appeals also rejected the City’s contention
that Labor Law Section 27-a could not serve as a predicate because it
established a regulatory framework under which the Labor Department enforces
violations of the statute. The Court of
Appeals found that allowing an officer to sue under the PESHA did not undermine
the Labor Department’s role in enforcing workplace safety regulations. The Court of Appeals concluded that based on
the Legislator’s mandate that the Courts expansively apply Section 205-e to
provide police officers with a right to sue, the PESHA general duty clause
serves as an adequate predicate for plaintiff’s GML Section 205-e cause of
action.
Clearly, if a suit is brought by a police officer against
his employer under GML Section 205-e, it is important to make sure whether a
statutory basis exists. When a suit is
filed by a police officer against a defendant other than his employer, such as
an owner of premises where there is a slip and fall, it is also necessary to
check whether there is a statutory predicate for the suit.
Should you have any questions, please call.
Thomas M. Bona
