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.

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.

Assumption of Risk

A recent Court of Appeals touches on an issue present in two prior posts: one post was on injuries at school, and a second post dealt with exculpatory clauses. The legal issue is Assumption of Risk.

The Assumption of Risk rule announced in 1929 by legendary Judge Cardozo of the Court of the Appeals states: “one who takes part in . . . a sport accepts the dangers that inhere in it so far as they are obvious and necessary.” The rule was given an updated interpretation on April 27, 2023 in the cases of Grady and Secky.

Secky was a basketball player at New Paltz High School. The Coach asked players to participate in rebounding drill with another player to compete for a rebound. Secky got the worst of the competition and was thrown into bleachers, causing a right shoulder injury.

Grady was a baseball player at Chenango Valley High School. Grady was participating in a fielding drill with five players and two coaches. Grady was stationed at first base. To Grady’s right (between first and second base) there was a seven foot by seven foot fence. And on the other side of fence was a second player stationed at “short first base.” There was also a thrid baseman, short stop and second baseman. One coach was hitting ground balls to the third baseman who was throwing to the first baseman. A second coach (at the same time) was hitting ground balls to the short stop who was directed to throw the ball to the second baseman, and then the second baseman would throw the ball to “short first base.” Unfortunately for Grady, one of the balls from the second baseman, missed the “short first baseman,” went past the fence, and struck Grady on the right side of his face, causing significant vision loss.

The Court of Appeals overruled the Supreme Court and the Appellate division and found Grady has a case that can go to jury and let the jury decide if this baseball drill was unique and created dangers over and above the usual dangers of baseball.

Secky was not as fortunate. The drill did not unreasonably increase the risk of injury beyond that inherent in the sport of basketball.

Injuries at School

“My daughter was injured playing softball at school.  She broke her ankle and needed a rod and pins inserted in her leg to repair it. Can she sue the school?”

Injuries incurred while engaging in recreational activities may lead to a successful claim against the school.  But while playing any sport, every particpant assumes that she or he will be subject to some risk that is not present in the classroom. The question of school liability comes down to handling the risk in the best way possible.

The standards for school conduct are different if the activity occurred during school hours in a physical education class versus an interscholastic competition. Besides seeing if written safety policies were followed, the court would have to look at the equipment involved (was it certified by the National Operating Commttee on Standards for Athletic Equipment?). Were the parents fully apprised of all the risks? How much training and experience did the coach have? Was the coach ever evaluated? Were there any prior complaints about the coach? If the safety equipment was certified, did the athlete have adaquate training so she knew how to use the equipement? Did the athlete have proper training to avoid injury? Was the athlete in good physical condition so she could avoid injury? Was the school equiped to render medical assitance so as to avoid further injury to the athlete?

There are many more areas of inquiry depending upon the cirmstances. Without spending more time discussing specifics, it is impossible to determine if the school was liable.

A Tale of Crossing Guards

“My child was struck by a car while walking home from school.  Shouldn’t the City also be responsible for the accident as well as the driver of the car that struck my child for failing to provide crossing guards so children can get home safely on busy New York Streets?”

As with most questions presented, the answer really lies with the details of the accident if the City is negligent for failing to provide crossing guards. The lead case with crossing guard accidents is probably Florence v Goldberg, 44 NY2d 189 (1978).  This was a 1978 case in which a jury found the City responsible for failing to replace a civilian crossing guard assigned to a busy Brooklyn intersection who called in sick.  The 6 year old plaintiff was struck walking home.  The key fact in the case was the intersection was protected by a crossing guard for the first two weeks of school.  The plaintiff’s mother accompanied the plaintiff for the first two weeks of school.  She then accepted a job after two weeks and relied on the crossing guard to help her child get home safely.

The Court found that the crossing guard created a special duty of the police to insure the child would get home safely.  But the Court repeated the rule that there is no general duty to insure citizens are never the victims of accidents or crimes. Municipalities have limited resources so they are not responsible for every act violating its citizens.  A mugging victim cannot claim the City should have had more of a police presence to prevent a crime from occurring.  Similary, if an adult was struck in that busy Brooklyn intersection, there would be no claim because there was no special relationship between the vicitim and the police force.  Similarly, if the young victim in the Florence case was injured by a bandit who beat the child up or by a friend who pushed him down, there would be no claim.  The civilian crossing guard was only there to insure safety against cars in the intersection, not against all tragedies that can occurr on a City street.

The question, as it is written, never states if the intersection in question was normally covered by crossing guards or not. If the intersection in question never had a crossing guard to begin with, then the City would not be responsible because no special duty existed bewteen the City and your child.