St. Jacques v. City of New York

215 A.D.2d 75, 633 N.Y.S.2d 97

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 26, 1995
• Status: Published

Opinions

OPINION OF THE COURT

Ross, J.

The dispositive issue in these appeals is whether the defendant City’s failure to cause the sidewalks in question to be repaired in accordance with various sections of the New York City Charter, Administrative Code and Municipal Home Rule Law (see, NY City Charter § 2903 [b]; § 2904; Administrative Code of City of NY §§ 19-152, 7-201 [c] [2]; Municipal Home Rule Law § 11 [1] Q]) can support the plaintiffs’ actions pursuant to General Municipal Law § 205-e. The injured plaintiffs were police officers who sustained injuries under virtually identical circumstances. Both officers were on duty chasing a suspect on foot when they tripped, fell and were injured due to a depression and/or crack in the respective sidewalks on which they were running. In both cases counsel for the parties stipulated that maps prepared by the Big Apple Pothole & Sidewalk Protection Corporation, which were entered into evidence in each case, showed the sidewalk defect in question and were received by the City well before the respective incidents occurred. It was also stipulated that during the intervening time between receipt of the maps and the incidents in question, the defendant City did not issue notices of violation to the owners of the abutting property.

In St. Jacques v City of New York, the City moved for a trial order of dismissal on, inter alia, the grounds that the plaintiffs’ common-law claims were barred as a matter of law pursuant to Santangelo v State of New York (71 NY2d 393) and that plaintiffs had no viable claim under General Municipal Law § 205-e. The trial court found that pursuant to Santangelo (supra), there was no common-law right of action by a police officer to recover for injuries sustained upon tripping over a defect in a sidewalk while pursuing a suspect. With respect to the General Municipal Law § 205-e claim the court found that the plaintiffs had not set forth evidence that, if believed by a jury, would permit a finding to sustain the City’s liability under General Municipal Law § 205-e. Specifically, the Court found that the statute should be strictly construed and that none of the laws relied upon by the plaintiffs imposed a statutory duty on the City to maintain its sidewalks above and beyond its common-law duty.

In Wiltbank v City of New York, tried before the same trial court, the City moved for a directed verdict dismissing the complaint. In a ruling from the Bench the trial court granted the City’s motion for the reasons stated in its decision in the St. Jacques matter.

On appeal plaintiffs have abandoned their common-law negligence causes of action and proceed only on their claims under General Municipal Law § 205-e. Plaintiffs argue that the statute is a remedial measure and should be broadly interpreted to enable police officers to recover against the City of New York, based upon its failure to maintain its sidewalks in accordance with the duty imposed upon it by the Legislature. Plaintiffs cite various sections of the New York City Charter and Administrative Code in order to demonstrate that the City’s obligation to maintain its streets and sidewalks in a reasonably safe condition is statutory.

It has long been recognized that the "municipality owes a duty to keep the public sidewalks in a reasonably safe condition” (D’Ambrosio v City of New York, 55 NY2d 454, 462). While the duty has generally been recognized as a common-law duty, it has been held that the source of the duty is also statutory (Lopes v Rostad, 45 NY2d 617). Lopes involved an action against Nassau County and the statutory duty imposed upon it by Highway Law §§ 102 and 139. The case of City of New York v Kalikow Realty Co. (71 NY2d 957, affg 132 AD2d 481), relied upon by plaintiffs to demonstrate that the defendant City has a statutory obligation as well as one imposed by common law, involved the question, as framed by the Court, of "who, as between the City and [a] property owner, should ultimately pay” the judgment won by a plaintiff who was injured when he fell on a broken sidewalk (supra, at 958). In both the Appellate Division memorandum (132 AD2d 481, 482, supra) and the Court of Appeals memorandum (71 NY2d, supra, at 958-959) it was acknowledged that the City of New York had a statutory duty to maintain its sidewalks; the Court of Appeals noted that the nondelegable duty was conceded by the City.

The statutes relied upon by the plaintiffs provide as follows: New York City Charter § 2903 (b) provides the Commissioner of Transportation with authority to repair sidewalks, streets, bridges and tunnels. New York City Charter § 2904 sets out the duties and obligations of property owners with respect to "sidewalk flags, fencing of vacant lots and filling of sunken lots or cutting down of raised lots” and Administrative Code § 19-152 sets out the duties and obligations of property owners with respect to sidewalks and lots. Specifically, section 19-152 (d) provides that the Department of Transportation, upon being notified in writing of a dangerous condition in a sidewalk and after determining that the condition constitutes an immediate danger to the public, may notify the property owner of the condition and direct same to repair the defect. Section 7-201 (c) (2) of the Administrative Code, commonly referred to as the "Pothole Law”, requires written notice of any street defect as a condition precedent to any possible liability on the part of the City for that defect. Finally, Municipal Home Rule Law § 11 (1) (j) provides that the City may not adopt any law that would transfer such liability, as would attach to the City for the failure to maintain sidewalks, to the abutting landowner.

We agree with the trial court’s determination that nothing in any of the provisions cited by the plaintiffs imposes upon the City any duty beyond that which exists by virtue of the case law. Review of the provisions in question demonstrates that, rather than explicitly articulate that the City would be liable to an injured person in the manner of Highway Law § 139, the above-cited statutes provide, inter alia, the relevant authorities with control over the construction, maintenance and repair of public roadways and sidewalks; further, they delineate the mechanisms by which the City’s duty to maintain sidewalks and roads is to be carried out and set out the relevant rights and duties between the City and the abutting landowner. The statutes, which clearly prohibit the City from any "burden shifting”, neither diminish the City’s nondelegable common-law duty nor add to it.

General Municipal Law § 205-e, in pertinent part, provides a right of action or recovery, in addition to that created under any other provision of law, to officers injured or killed in the course of performing their duties, where the injury or death occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing 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 of their departments, divisions and bureaus.

It is by now well known that General Municipal Law § 205-e was enacted to bring police officers into parity with firefighters who were already provided with a right of action by General Municipal Law § 205-a (Ruotolo v State of New York, 83 NY2d 248, 255; L 1989, ch 346; see, Mem of Senator Skelos, 1989 NY Legis Ann, at 180). First enacted on July 12, 1989 (L 1989, ch 346), the enacting legislation of General Municipal Law § 205-e was amended in 1990 and made retroactive to revive actions dismissed on or after January 1, 1987 (L 1990, ch 762). The section was amended a second time in 1992 to provide a right of action to police officers injured in the line of duty, irrespective of whether they were injured as a consequence of a statutory violation respecting the safe maintenance and control of premises (see, L 1992, ch 474; Ruotolo v State of New York, supra, at 255-256). This last amendment was effected in recognition of the "vastly different public services provided by police and firemen” (Mem of Assembly Rules Comm, 1992 NY Legis Ann, at 285-286), and the fact that police officers may suffer injuries which the Legislature intended to be covered by General Municipal Law § 205-e as a result of violations of statutes other than those governing the proper maintenance and control of "premises” (Ruotolo v State of New York, supra, at 255-256).

General Municipal Law §§ 205-a and 205-e were clearly intended to ensure that firefighters and police officers would be able to recover for injures caused by violation of statutes, ordinances, codes, rules and regulations which increase the dangers inherent in their respective work (see, Kenavan v City of New York, 70 NY2d 558, 567; Mem of Assembly Rules Comm, 1992 NY Legis Ann, at 285-286). In Kenavan, the plaintiff’s decedent, a firefighter, was killed and other firelighters were injured while extinguishing a vehicle blaze, when a motorist drove his vehicle striking the firefighters and crashing into the back of their engine. The Court discussed the scope of General Municipal Law § 205-a with regard to the types of statutes and ordinances, the violation of which would provide a basis for recovery. The Court specifically addressed plaintiff’s argument that under the plain language of section 205-a the violation of any statute, ordinance, rule or order, including a violation of the Vehicle and Traffic Law, would be sufficient to sustain liability under section 205-a. While noting that section 205-a as a remedial statute is to be liberally construed, it was concluded however, that "the intended scope of the enactment is not so far-reaching” as plaintiff in that case contended (Kenavan v City of New York, supra, at 566). The Court traced the history of section 205-a and found that despite the use of the phrase "any of the statutes, ordinances, rules [or] orders”, the "scope of section 205-a is limited to property owners and the maintenance of premises in a safe condition for firefighters” (supra, at 566). The Court rejected the Appellate Division’s restriction of the statute to fire preventive provisions only. However, the Court also rejected plaintiff’s assertion that the violation of Vehicle and Traffic Law § 1224, Administrative Code § 755 (4)-3.0 and Department of Sanitation General Order No. 5, was sufficient to sustain liability under General Municipal Law § 205-a, on the ground that the sections were "not related to the safety of premises and the failure to comply with their requirements would not increase the risks already inherent in fighting fires generally, or in fighting vehicle fires specifically” (supra, at 567).

One of the matters decided with Zanghi v Niagara Frontier Transp. Commn. (85 NY2d 423), which is relied upon by the plaintiffs, was Raquet v Braun (85 NY2d 423). Raquet involved claims by two volunteer firefighters, one of whom was killed and the other paralyzed when the canopy roof of a building addition and a portion of the addition’s masonry wall collapsed during a fire. The statutes and ordinances involved in Zanghi were building.codes, which the Court noted are generally fire safety oriented. The violation of such provisions was found by the Court to have enhanced the risk of injury to firefighters from the collapse of building structures. Thus, contrary to the dissent’s apparent interpretation and the plaintiffs’ argument regarding that case, the Court’s ruling did not materially expand the scope of the General Municipal Law § 205-a as delineated in Kenavan (supra).

General Municipal Law § 205-e, as derived from section 205-a, uses virtually identical language and is therefore similarly limited in scope to the violation of statutes, which increase the risks and dangers inherent in police work (see, Mem of Assembly Rules Comm, 1992 NY Legis Ann, at 285-286). The issue in this case, therefore, can be stated as, whether the City’s failure to comply with statutes cited by plaintiffs, increased the risks inherent in police work generally or in pursuit of suspects specifically, so as to sustain an action pursuant to General Municipal Law § 205-e.

In Zanghi (supra) and Ruocco v New York City Tr. Auth. (85 NY2d 423), decided with it, the Court dealt, inter alia, with claims of common-law negligence advanced by police officers and recognized the existence of the inherent risks officers undertake in pursuing suspects both on foot and in their vehicles. It was noted that police officers are called upon to render assistance to other officers and to respond to the report of crime in a variety of ways. The Court recognized that the primary goal of the officers is to reach the scene quickly and that in doing so "care and caution in the steps taken to reach that location are naturally compromised. The risk that an officer may be injured during the response, due to the loss of footing, a blow out on a tire, or a car collision at an intersection is inherent in police duties” (Zanghi v Niagara Frontier Transp. Commn., supra, at 440).

At the core of plaintiffs’ argument is the assertion that the defects in the sidewalks in question rendered it more likely that the officers would be injured when they undertook their pursuit of the fleeing suspects. However, the risk of injury "due to the loss of footing”, is a risk inherent in the performance of the duties of a police officer, and accordingly, an action for common-law negligence cannot be maintained by police officers injured while en route to a crime scene (Zanghi v Niagara Frontier Transp. Commn., supra, at 440). Therefore, where as here, the statutes, on which plaintiffs rely to sustain their General Municipal Law § 205-e causes of action, do not create any greater duty than that which exists at common law, but merely delineate how the duty is to be fulfilled, it cannot be concluded that the specific violations alleged by the plaintiffs increased inherent risks undertaken by officers when they respond to a call or pursue a suspect. The same risk of injury would have been present whether or not the alleged statutory violations occurred and we conclude, therefore, that the plaintiffs’ actions in both cases were properly dismissed.

Del Casino v City of New Rochelle (176 AD2d 282) and Alberti v Eastman Kodak Co. (204 AD2d 1022, Iv denied App Div, 4th Dept, Sept. 30, 1994), relied upon by the dissent, are distinguishable. Del Casino involved alleged violations of sections of the State Highway Law, which placed affirmative requirements upon the defendant City of New Rochelle, above any common-law duty which existed, as well as violations of provisions of the Charter of the City of New Rochelle. Moreover, it cannot be determined from the memorandum in that matter what requirements were imposed upon the defendant City by its Charter provisions, as the provisions are neither identified nor explained. In Alberti, the Court specifically stated that the statute involved was "not a mere codification of common-law nuisance” (204 AD2d, supra, at 1022).

Moreover, contrary to the dissent’s characterization of our reasoning, we do not "exclude” the provisions of the Charter and Administrative Code relied upon by the plaintiffs; rather we conclude that the provisions do not impose any greater duty upon the City than existed at common law prior to their enactment. We reiterate that none of the provisions relied upon by the plaintiffs herein set out that the City of New York shall be liable to anyone upon a failure to abide them; they merely delineate the rights and responsibilities of the City of New York and the abutting landowners with respect to the City’s common-law nondelegable duty to maintain sidewalks and roads. Lastly, the dissent’s reliance upon the argument that if the Legislature wished to exclude the subject provisions of the City Charter and Administrative Code it would have done so specifically, ignores the import of the holding in Kenavan (supra). There the Court limited the application of General Municipal Law § 205-a pursuant to its interpretation of the legislative intent, the relevant sections of the Vehicle and Traffic Law involved in Kenavan not being specifically excluded by the General Municipal Law § 205-a.

Accordingly, the judgment of Supreme Court, New York County (Harold J. Hughes, J.), entered December 12, 1994, which granted the defendant’s motion for summary judgment made at the close of plaintiffs’ case and dismissed plaintiffs St. Jacques’ action, is affirmed, without costs, and the judgment of the same court and Justice entered December 13, 1994, which granted defendant’s motion for summary judgment made at the close of plaintiffs Wiltbanks’ case and dismissed that action, is also affirmed, without costs.