Phalen v. Kane

192 A.D.2d 186, 600 N.Y.S.2d 988, 1993 N.Y. App. Div. LEXIS 7763
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 16, 1993
StatusPublished
Cited by6 cases

This text of 192 A.D.2d 186 (Phalen v. Kane) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phalen v. Kane, 192 A.D.2d 186, 600 N.Y.S.2d 988, 1993 N.Y. App. Div. LEXIS 7763 (N.Y. Ct. App. 1993).

Opinion

OPINION OF THE COURT

Balio, J.

This appeal presents two issues for this Court’s consideration: (1) whether the common-law “fireman’s rule” or “firefighter’s rule” precludes a police officer from recovering damages for an assault and battery inflicted upon her during the performance of her duties; and (2) whether plaintiff has a cause of action for wanton or willful misconduct pursuant to General Municipal Law § 205-e.

I

We assume, for purposes of deciding this appeal, the truth of the factual allegations asserted by plaintiff in her complaint and papers submitted in opposition to the motion to dismiss.

On April 12, 1988, plaintiff, a Syracuse police officer, ticketed defendant Kane’s vehicle for a parking violation. Upon discovering that 19 outstanding and unpaid traffic violations existed for that vehicle, plaintiff called for a tow truck to impound the vehicle. Defendant then appeared at the scene, and after a verbal argument with plaintiff, tried to drive his vehicle from the area. As he entered the vehicle, defendant pushed plaintiff away. Plaintiff then reached into the car in an effort to prevent defendant from inserting a key in the ignition, and defendant slammed the door on her several times. Defendant then started to drive the car while holding plaintiff’s arm, forcing plaintiff to run with the car until she [188]*188could break free. Defendant drove from the scene. Plaintiff, in her police vehicle, pursued and eventually pulled defendant’s vehicle to the side of the street. Defendant then exited his vehicle and twice pushed plaintiff, at which point plaintiff drew her service revolver and arrested defendant.

The complaint asserts causes of action for common-law negligence, assault and battery, and for defendant’s "negligent and careless acts [that] intentionally, willfully, wantonly and maliciously caused personal injury”. On this appeal, plaintiff contends that Supreme Court erred in dismissing the causes of action for assault and battery and for wanton or willful misconduct.

II

Supreme Court erred by dismissing the assault and battery cause of action. "It is a long-standing common-law rule that firefighters injured while extinguishing fires generally cannot recover against the property owners or occupants whose negligence in maintaining the premises occasioned the fires” (Santangelo v State of New York, 71 NY2d 393, 396; see also, Kenavan v City of New York, 70 NY2d 558). The "fireman’s rule” has been expanded to preclude police officers from recovering damages "for negligence in the very situations that create the occasion for their services” (Santangelo v State of New York, supra, at 397; see also, Cooper v City of New York, 81 NY2d 584). In our view and consistent with the view adopted by nearly all other jurisdictions,

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Cite This Page — Counsel Stack

Bluebook (online)
192 A.D.2d 186, 600 N.Y.S.2d 988, 1993 N.Y. App. Div. LEXIS 7763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phalen-v-kane-nyappdiv-1993.