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Michael Napolitano Authors, "Protecting Those Who Protect Us – A Primer on the Law"

May 1, 2013

Firefighters and police officers provide vital, life-saving services to New Yorkers every day. Their job is replete with dangers and threats that they confront on a daily basis. As seen in recent events, first responders, firefighters and police officers run towards danger to protect the public with little regard for their own safety. When firefighters and police officers are injured in the line of duty, there are legal mechanisms to insure that they can be made whole and compensated for their injuries. The legal architecture is not without hurdles, however.

Traditionally, New York courts followed the “Firefighter’s Rule” which bars recovery in negligence for injuries sustained by a firefighter (or police officer) while in the line of duty. The rule, which has its origins in the common law, was initially premised on the idea that firefighters responding to a fire were licensees and thus took the property as they found it. Another rationale for the rule was that firefighters assumed the risk of suffering the kinds of injuries that go along with being employed in that profession. More recently, courts have justified the rule on the ground that firefighters are well-trained professionals who are hired and compensated specifically to confront dangerous situations that are frequently caused by someone’s negligence. and must be precluded from recovering damages for the very situations that create a need for their services.

This harsh rule has far reaching implications that could prevent a firefighter or police officer who sustained terrible injuries as a result of someone’s negligence from receiving compensation for his or her loss. To ameliorate the effects of the Firefighter’s Rule, the state legislature enacted a series of laws designed to protect firefighters and police officers.

General Obligations Law § 11–106 largely abolished the Firefighter’s Rule by giving firefighters a cause of action in negligence for injuries suffered while in the line of duty except as to actions against municipal employers and fellow workers. While General Obligations Law §11-106 still precludes suits against firefighters’ employers subject to the applicability of the Firefighter’s Rule, it does not create any additional or greater barrier to suit than the Firefighter’s Rule.

General Obligations Law §11-106 gives firefighters a cause of action in negligence (as opposed to the statutory cause of action afforded under General Municipal Law § 205-a) for line of duty injuries, except against municipal employers and fellow workers. Thus, an injured firefighter now has two potential avenues for recovery from negligent parties. First, if the violation of a statute, rule or City ordinance caused injury to a firefighter, he may bring a lawsuit under GML § 205-a. Second, if someone’s negligence caused the injuries, regardless of whether there was a violation of a statute, the firefighter may bring a common law cause of action in negligence, except against his employer.

Because recovery at common law was so restrictive, the Legislature enacted, mostly for political reasons, special statutory causes of action for firefighters and police officers: General Municipal Law § 205-a for firefighters and General Municipal Law § 205-e for police officers. Unlike the common law cause of action, recovery under G.M.L §§ 205-a and 205-e is neither subject to nor circumscribed by the Firefighter’s Rule. In fact, comparative negligence is not a defense in such action.

General Municipal Law § 205–a creates a statutory right of action for firefighters or representatives of deceased firefighters and was enacted to counter the Firefighter’s Rule’s bar to recovery in common-law negligence by imposing liability in any case where there is any practical or reasonable connection between a statutory or code violation and the injury or death of a fire fighter.

To establish a case under GML §205-a, a plaintiff must identify a predicate statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm to the firefighter. In order to prevail in a lawsuit brought under General Municipal Law § 205-a, the plaintiff must show that the defendant violated some federal, state or local law. The violation must be of a “well-developed body of law.” Provisions from the New York City Administrative Code (including the electrical code, the housing maintenance code, and the building code), the New York State Multiple Dwelling Law, the New York State Vehicle and Traffic Law, and OSHA are frequently cited in GML § 205-a cases. The Penal Law and §27-a of the Labor Law have also been used.

G.M.L. § 205-a is the culmination of years of legislative efforts designed to accomplish two major objectives: ameliorate the harsh effects of the Firefighter’s Rule by creating a cause of action where none previously existed and encourage compliance with relevant statutes and ordinances by exposing violators to liability for injuries resulting directly or indirectly from non-compliance. This statute serves the laudatory purpose of protecting those who protect us.

In March, 2013, the Second Department, in an instructive case for how courts assess cases involving firefighters and the statutes protecting them, upheld a jury verdict in favor of a plaintiff firefighter who was injured when he fell down a staircase while attending a training seminar at a building owned by the City of New York. When he attempted to access the basement of the building, he slipped on debris in a stairwell, lost his balance, and fell forward suffering injury.

The plaintiff presented expert testimony to establish that the handrail, which was flush against the wall, was dangerous and defective. The plaintiffs asserted that the defective nature of the handrail violated Administrative Code of the City of New York §§ 27–127 and 27–128, and that these violations were a cause of the injured plaintiff’s accident. The jury found for the plaintiff and the appellate court upheld the verdict.

As can be seen, the statutes protecting firefighters (and police officers) have evolved over time and now provide avenues for recovery and an easier path for these heroes to be made whole after suffering injury on the job.