Police and Firefighter Municipal Claims

I am a police officer who was injured during an arrest. I was working with three other officers to arrest a mentally disturbed person who was belligerent to other people. During the arrest, one of my fellow officers discharged a taser into me by accident. I had some unknown cardiac issues, so I am unable to return to work. Do I have a claim?

Unfortunately the answer is probably not. The answer involves a story dating back decades. But the following is a brief sketch into the history of these types of claims.

Police and Firefighters for many years were not allowed to sue for negligence for personal injuries sustained in the course of their duties against any entity or person. Police and Fireman were and are covered by “line of duty” benefits for injuries sustained in the course of their duties. The policy was that those “line of duty” benefits (which included medical care and short term disability benefits, as well as long term disability: three-quarter pay) were the only benefits Police and Firefighters were entitled to claim.

Then the legislature enacted General Municipal Law § 205-e. This was the original law which authorized private claims for Police and Firefighters against negligent parties for causing injuries to Police and Firefighters. Thus a Firefighter could sue a building owner for violating building codes which caused a fire. Police could sue owners of parking lots for a hazard which caused a trip and fall accident. The problem for municipalities were new claims that Firefighters and Police could now bring that they were never able to bring before.

Eventually, the law developed through Court decisions which held that Police and Firefighters could still bring claims for “negligent non-compliance with well developed bodies of law and regulation which impose clear duties.”  Galapo v City of New York, 95 NY2d 568. This meant that a plaintiff (Firefighter or Police) would have to plead and prove a violation of a law or regulation. The more difficult question has been defining a “clear duty.” The Courts have dismissed many cases in which a plaintiff (Police or Firefighter) pleads and proves a violation of a law or regulation (against a municipality), but Courts have held that the law or regulation did not define a “clear duty.” Thus, a Police or Firefighter could not bring a claim against a municipality.

Then the legislature enacted General Obligations Law § 11-106. The statute itself permits negligence claims against all parties except the municipality (and all other fellow Police or Firefighters) for which the Police or Firefighters work. The legislative history of this statute is clear: the statute explicitly denies claims against municipalities by the Firefighters and Police.

Thus, the only possible claim is under General Municipal Law § 205-e and that claim is not likely.

Subway Crime

I was injured during an incident on the subway. I was attacked by several youths. There was a conductor on the subway but he did nothing to stop the attack on myself or the other passengers. Do I have a claim against the City?

Generally speaking, the City of New York and the New York City Police Department do not guarantee the safety of its citizens from crime. The argument against municipal liability boils down to economics. The City cannot afford to hire and deploy police to protect everyone, everywhere, at all times. Many times, the police can only offer a deterrent to crime. That deterrent is that the police will investigate crimes after they are committed and potentially arrest and offer cases to the District Attorney to prosecute alleged criminals. Every time a crime is committed by a perpetrator, that perpetrator may be arrested, prosecuted, and incarcerated for the crime. It is that possibility of incarceration that acts as a deterrent to potential criminals.

In order for the City to be responsible for the damages to a crime victim, there must be a “special relationship” established between the crime victim and police officer on the scene. If a police officer sees a crime in progress and has started to assist the victim, then if the police officer fails to assist or fails to request back up, the victim could bring a case against the City. There are many variations of these facts, and each slight variation can bring a different result.

Your specific case may be one the few types of cases which could find the New York City Transit Authority (NYCTA) responsible for the actions of the criminals that attacked you. Public Authorities Law § 1212(3) authorizes a private recovery against the NYCTA for the negligent operation of the subway system. You stated that a conductor was on the subway but did nothing to stop the attack on you (and other passengers). Although that conductor was not obligated to personally intervene (like a superhero in some Marvel comics movie), but if the subway employee witnessed the attack, but did not summon help, even though summoning that help would not put the conductor at risk, the MTA could be responsible for your damages.

Building Security

I was mugged while doing laundry in my apartment building. The police never caught the mugger, can I bring a claim for my injuries?

I’m sorry this happened to you. You might have a claim against your landlord for lack of security in your building.

Building security claims are dependent upon where the attack occurred and the status of the attacker. Since you stated the attack occurred while you were doing laundry, I assume this means you were in a common area in the apartment building when the assault occurred. The next step in the legal anaylis would be to determine if your attacker was in the building as a tenant or guest of a tenant. If the attacker was in the apartment building already as a tenant, there is nothing the landlord could do to prevent the crime from occurring. A landlord is not responsible for the criminal acts of a tenant, unless the landlord had notice of the tenants prior bad acts. Finally, if the attacker came from outside the building, we would have to know how the mugger got inside the building. If there were minimal security measures that were not in place, then the landlord would be responsible.

In a recent case decided by the Court of Appeals, the Court found that failure to have working locks on exterior doors was breach of “minimal securty measures.” See Scurry v NYCHA, 2023 Slip Op 02752 decided May 23, 2023. The Court held that the breach of “minimal security measures” means the case should not have been dismissed before trial. The case was allowed to go forward for a trial by jury.

The question really is who was the perpetrator of the assault? If the mugger came from outside the building and there were no “minimal safety measures” in place, you may have a claim against the landlord. If the mugger was one of fellow tenants, you may have a very difficult case. Whatever investigation the police did would be crucial to address this issue.

Protecting the Vulnerable

“When I was young, I was abused in a foster home. What can I do now to obtain some justice?”

I am sorry for whatever abuse you endured.

If you want justice for abuse, the first thing I would advise you to do is report what happened to the police. Your question doesn’t state your age nor the nature or time of the abuse, but I would advise you to report crimes to the police. Depending on what happened and when it happened, the District Attorney may or may not be able to bring charges against the perpetrator.

You may also have civil claims that you can bring against the perpetrator and the authority that investigated the perpetrator before and after you were placed in their custody. The Child Victims Act extended the statute of limitations for victims to make claims against perpetrators. Claims against the perpetrator directly may have no value since the perpetrator may already be in jail and unable to pay any judgment.

There may be several claims against the Department of Social Services and Child Protective Services. One claim could be Federal Civil Rights claim under 42 USC 1983. Federal Civil Rights claims require that the municipal entity showed “deliberate indifference” to the victim’s welfare and safety. That means that the municipal employee disregarded a known or obvious consequence of his action or inaction. This can be inferred from a “pattern of omissions revealing deliberate inattention to specific duties imposed for the purpose of safeguarding plaintiff’s from abuse.”

Cases like these can drag on for a long time. But the Federal claim will give the plaintiff the best chance to obtain crucial discovery, necessary to prove a claim, from the municipal entity. Most of the records of these agencies are protected from discovery by statute. But a viable claim against the municipal entity would give the Court the leverage to order documents to be turned over during discovery.

There are many other considerations and claims. Needless to say, an extended consultaion with an attorney would be your best course of action.

Assaults at Work II

In a previous post, the issue of Compensation for assaults by a co-worker was addressed. The question was asked if an assault by a co-worker was covered by Worker’s Compensation. The answer was Compensation would cover a claim arising out of an assault that occurred on the job. A second issue that may arise in this case is the right of an employee to directly sue a co-employee for assault.

Generally, employees may sue not their co-worker’s for negligence. If your co-worker’s negligence causes you to sustain injuries on the job, then your exclusive remedy is Compensation benefits. However, if that co-worker punches you, then you can also sue that co-worker for assault.  Unlike Compensation claims, in a suit for assault, the injured employee can obtain an award for pain and suffering.

Sometimes, direct suits against co-workers do not work out. Sometimes, employees may not be able to identify the assailant.  Sometimes, law suits against co-workers result in judgments that can never be collected because the assailant is insolvent.

But the injured worker can still elect to sue the assailant and can have a judgment against that person in the event the assailant ever becomes solvent in the future.