Premises Liability

This month we received a very interesting decision regarding New York’s Firefighter rule. In the old days, the rule was if you are a firefighter, you could not sue if you were hurt in the course of doing your duty, like if you were saving one’s life. So, if you were fighting a fire, and you fell down a set of stairs that had collapsed because it was not properly maintained, you could not sue. Of course, if you were not a firefighter and you were injured when that same staircase collapsed, you could sue. The State changed the law (General Municipal Law § 205-a) and now allows a firefighter to sue if he or she is injured so long as the defective condition is the result of a code violation. Thus, prior to the case mentioned below, for a firefighter to win his or her case, a defective condition would need to be proven along with a code violation. Now, however, it seems like there is one more element to prove.

Desthers v. Espinal (2014 NY Slip Op 7323) decided on October 29, 2014, by the Appellate Division, Second Department involved a claim by a New York City Firefighter under General Municipal Law § 205-a. The plaintiff, John Desthers, while responding to a fire, fell off a scuttle ladder within the Espinal home while he was trying to gain access to the roof. The plaintiff alleged a potpourri of violations of the New York City Building Code; Fire Code; Multiple Dwelling Law; Administrative Law and the Housing Maintenance Code as the statutory prerequisite to prevail on a General Municipal Law § 205-a claim for the firefighter. The plaintiff also alleged common law negligence for failure to maintain the scuttle ladder in the premises which were built in 1924 and contained the original ladder.

In affirming a dismissal of the action by the Lower Court, the Appellate Division in a unanimous decision stated:

“General Municipal Law § 205-a provides a right of action for firefighters who are injured as a result of any neglect, omission, willful or culpable negligence of the defendant 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 (General Municipal Law § 205-a[1] ). Although the plaintiff is not required to prove such notice as would be required under a common-law theory of negligence, the statute still requires that the circumstances surrounding the violation indicate that it was a result of neglect, omission, willful or culpable negligence on the defendant’s part (Lustenring v. 98-100 Realty, 1 AD3d 574, 578 [internal quotation marks omitted]; see McCullagh v. McJunkin, 240 A.D.2d 713, 713; Lusenskas v. Axelrod, 183 A.D.2d 244, 248-249).

Here, the defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that she neither created nor had any knowledge of the alleged defect (see Lustenring v 98-100 Realty, 1 AD3d at 578; McCullagh v. McJunkin, 240 A.D.2d at 713; Lusenskas v Axelrod, 183 A.D.2d at 249). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the alleged violations of the Administrative Code of the City of New York, including section 28-301.1 thereof, were the result of some neglect, omission, or culpable negligence on her part (see Lustenring v 98-100 Realty, 1 AD3d at 578; McCullagh v McJunkin, 240 A.D.2d at 713). The defendant also established her prima facie entitlement to judgment as a matter of law dismissing the common-law negligence cause of action by demonstrating that she neither created nor had actual or constructive notice of the defect before the incident (see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837; Schnell v Fitzgerald, 95 AD3d 1295, 1295-1296; Lal v Ching Po Ng, 33 AD3d 668, 668). In opposition, the plaintiffs failed to raise a triable issue of fact.”

This appears to be a new wrinkle in the law and I would be willing to bet that the Court of Appeals – the State’s highest Court – will like to take the chance at reviewing it.

For the decision, please click here.

http://law.justia.com/cases/new-york/appellate-division-second-department/2014/2013-00667.html