Injured Police Officer's Claim Continues against the City

A police officer who fell off a flatbed truck while loading barriers can proceed with a personal injury lawsuit against New York City that claims a violation of a state law requiring public sector employers to provide workers with employment that is "free from recognized hazards."

In Gammons v. City of New York, 2011-04823, the Appellate Division, Second Department, affirmed Supreme Court Justice Kenneth Sherman's partial grant of summary judgment that rejected Allison Gammons' common law negligence claim but permitted her to proceed with the liability claim arising from an alleged violation of the Public Employee Safety and Health Act.

The ruling was written by Justice John Leventhal (See Profile), and joined by justices Peter Skelos, Sheri Roman (See Profile) and Robert Miller, who heard arguments on May 4, 2012.

The panel examined the question of whether Labor Law §27-a(3)(a)(1) was a sufficient statutory predicate for General Municipal Law §205-e, which creates a cause of action for a police officer injured by another'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 Labor Law statute in question is the so-called "general duty" clause within the Public Employee Safety and Health Act.

The provision mandates public sector employers to "furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees."

In the underlying case, Gammons and another officer were assigned in September 2007 to load a flatbed truck with wooden barriers and bring them to various locations. Though the New York City Police Department at the time had newer trucks equipped with longer flatbeds and rear railings, Gammons used an older vehicle that was smaller and without a rear railing.

While standing at the truck's rear and holding the barrier with both hands, her fellow officer gave a hard push, causing her to fall off the back.

Gammons sued the city and the NYPD for common law negligence and pursuant to General Municipal Law 205-e, based on a violation of the Public Employee Safety and Health Act.

In February 2011, Sherman, sitting in Brooklyn, ruled the common law negligence claim was barred by the so-called Firefighter's Rule, which prevents firefighters and police officers from recovery for injuries sustained in connection with the risks that inherently come with their jobs.

But he held the General Municipal Law 205-e claim could proceed because the general duty clause served as a proper predicate.

Both sides appealed.

The city argued that the Second Department had to refrain from ruling whether the general duty clause could be the proper basis for a General Municipal Law claim because the state Court of Appeals has not yet addressed the question.

But Leventhal noted that the Second Department has already "recognized instances" where the clause was an adequate basis for such a claim.

The city also asserted the Public Employee Safety and Health Act was not meant to give a private right of action to address hazardous workplaces.

Yet Leventhal said Gammons was not asserting a cause of action under the act or its general duty clause and was instead saying it was a predicate for the General Municipal Law §205-e cause of action.

The General Municipal Law claim, he said, "does not stand alone and must be predicated on a violation of a separate legal requirement."

Leventhal concluded that the Public Employee Safety and Health Act was "applicable to the type of defects that are alleged to have caused the plaintiff's accident in this case."

He noted a 2001 Second Department case, Balsamo v. City of New York, 287 AD2d 22, that said the Public Employee Safety and Health Act was a sufficient predicate for a General Municipal Law claim where an officer injured his knee due to a sharp protruding edge of an unpadded computer built onto the vehicle's floor.

By contrast, he cited a 2004 state Court of Appeals decision in Williams v. City of New York, 2 NY3d 352, arising from the deaths of detectives who were killed when a prisoner shot them with a service revolver he stole while detained in the detective squad's locker room.

There, the Williams court said the survivors did not establish claims under §205-e premised on an alleged violation of the safety act's general duty clause because the safety act did not pertain to the "special risks faced by police officers because of the nature of police work."

In this case, Leventhal said, "The injury sustained by the plaintiff, which allegedly was caused by defects in the NYPD's flatbed truck, is akin to the occupational injury sustained by the police officer in Balsamo, and not to the fatal shooting committed by a prisoner against the police detectives in Williams…Like the unpadded computer console in Balsamo, the lack of a rear railing on the flatbed truck and the failure to use a longer truck to transport the barriers are the kinds of occupational hazards that [the Public Employee Safety and Health Act] was designed to redress."

Kremen, Gammons' attorney, said in an interview that while he was "disappointed" on the rejection of the common law negligence claim, the court's reasoning on General Municipal claim was "spot on."

Assistant corporation counsels Stephen McGrath, Margaret King, and Michael Shender appeared for the city.

"We respectfully disagree with the Appellate Division's interpretation of the law and are considering our appellate options," Shender said in a statement.

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