Knight v. McGuire

Kassal, J. (dissenting).

The issue on this appeal is whether, under the recently announced rationale of the Court of Appeals in Matter of Lichtenstein v Board, of Trustees of Police Pension Fund of Police Dept. of City of N. Y., Art. II (57 NY2d 1010), petitioner became disabled as a result of a job-related accident so as to qualify for accident disability retirement benefits. The underlying facts are not in dispute. Petitioner, a police officer, was assigned to the 114th Precinct. On April 15, 1979, he was on duty at Boulevard Hospital and was about to enter the rear door of a police patrol car upon the arrival of his relief officer. It had been raining heavily and he slipped on a wet portion of the curb, and fell to the pavement, injuring his left elbow. A line-of-duty designation for the accident was approved by the police department. He underwent surgery and was placed on sick leave four days after the accident, on April 19, 1979. On August 25, 1980, a police orthopedic surgeon advised that therapy would not improve the condition and petitioner thereafter filed for accident disability benefits. On October 13,1980, the medical board, after determining that he had a permanent loss of flexion in his left elbow which rendered him unfit for police duties, approved petitioner’s application. The board of trustees, however, by a six-to-six vote, retired petitioner on ordinary disability (Matter of City of New York v Schoeck, 294 NY 559). In denying the application and in dismissing the petition, Special Term found the admitted facts insufficient to warrant accident disability benefits, concluding that “[a]n injury sustained by a governmental employee while performing regular and usual duties without the intervention of an external, fortuitous event, proximately causing or contributing to the injury, is not an accident within the meaning of the statute”. The determination, rendered prior to the disposition by the Court of Appeals in Lichtenstein, essentially applied the same standard. On the conceded facts here, however, I find petitioner to be entitled to accident disability benefits. The standard adopted by the Court of Appeals in Lichtenstein (p 1012) in defining the term “ ‘accident’ ” is the “commonsense” definition used in the insurance field “of a ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’ (Johnson Corp. v Indemnity Ins. Co. of North Amer., 6 AD2d 97,100, affd 7 NY2d 222).” Applying this *626definition, the Lichtenstein court held (p 1012) that “an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury within the meaning of section B18-43.0”. On this basis, accident disability retirement was denied, where the petitioner, also a patrolman, injured his back while leaning over the hood of an automobile to place a summons on the vehicle. In subsequent cases, we have followed the Lichtenstein rationale to conclude on the same basis that accident disability benefits were unwarranted. Thus, in Matter of Menna v New York City Employees’ Retirement System (91 AD2d 537), we reversed a determination awarding accident disability benefits where the officer sustained a disabling back condition when he placed a spare tire into the trunk of his patrol car. In Matter of Schussler v Codd (91 AD2d 890) we denied accident disability to an officer who suffered a hearing impairment as a result of continuous exposure to excessive noise in participating in firing range activities (see, also, Matter of Cardone v Codd, 91 AD2d 909). Likewise, in Matter of Shannon v Board of Trustees of N. Y. City Employees’ Retirement System (92 AD2d 528), we reversed a judgment awarding accident disability to an employee of the New York City Department of Sanitation, who had sustained disabling injuries as a consequence of his having lifted a heavy garbage can in the performance of his ordinary employment duties. In Manzolillo v New York City Employees’ Retirement System (87 AD2d 791), decided prior to the disposition in Lichtenstein, we confirmed the determination which had denied an application for accident disability benefits to petitioner who, while performing usual patrol duties on a motor scooter, developed a disabling elbow condition diagnosed as “ ‘bilateral and medial epicondylitis’ ”. In Matter of Rinaldi v Board of Trustees of N. Y. City Employees’ Retirement System (88 AD2d 870), we denied disability benefits where petitioner, an exterminator, became incapacitated as a result of exposure on the job to harmful dusts and chemicals, over an extended period. The foregoing, however, are readily distinguishable from the situation involved in this case. In each of the cited cases, the petitioning employee sought accident disability benefits as the result of a disabling condition sustained in the course of and as a result of his employment. In each, the injury occurred while the employee was performing the job he was hired to do and, in none was there a sudden, unexpected or fortuitous, external event. In our case, however, the slip and fall, caused by a wet pavement condition, was sudden, certainly fortuitous and unexpected, thus satisfying the Lichtenstein rationale. The injury was occasioned by an external and unexpected event, within the “commonsense” of the term “accident,” as adopted by the Court of Appeals in Lichtenstein. To conclude otherwise would establish a line of demarcation which would have no rational basis. For example, assume that the fall resulted from a slip on a foreign substance, or from an oil slick condition caused by an accidental discharge from a vehicle, would the majority deny accident disability benefits to an employee who, while on police patrol duty, slipped as a result of that condition? Would not the situation be substantially similar had the fall resulted from a defective condition of the stairway of the station house and should not the legal result be the same? Under such circumstances, the injury would be accidental within the meaning of section B18-43.0 of the Administrative Code. The fact that the condition which precipitated the fall resulted from the slippery wet condition of the pavement following a rainstorm should not have any dispositive effect. The determination of whether accident disability benefits may be awarded is dependent upon the manner by which the injury occurred, not necessarily the cause of the condition which led to the injury. I do not subscribe to the concept, *627as implied by the majority, that, to constitute an accident, the officer must have been in the actual pursuit of a criminal. Such an unreasonably harsh and restrictive construction of the Administrative Code is unwarranted and unrealistic as it would unfairly exclude a wide range of unexpected or fortuitous events which occur while a police officer performs routine duties. As an illustration, suppose the petitioner in the same patrol car returning to the precinct after his tour of duty had been injured because the car took a sudden lurch or there was a defective door lock, causing him to fall out of the vehicle? The answer — accident and coverage under the Administrative Code — is self-evident. Nor do I find that the determination" by the Third Department in Matter of Covel v New York State Employees’ Retirement System (84 AD2d 902), requires a different result. There, petitioner, a school custodian, sustained a disabling back condition as the result of having slipped while mopping a wet floor. Petitioner had previously applied oil to the floor, which he knew to be slippery. On this basis, accident disability benefits were denied since the injury resulted from a risk inherent in the performance of petitioner’s routine duties and not as the result of an accident. The distinguishing feature in Covel which renders the determination inapposite to the facts here is that in Covel, petitioner created the slippery condition and, thereafter, slipped while mopping the floor, the very task he had been retained to do. Thus, in that case, the employee who had created the hazardous condition was injured while in the discharge of his duty to remove that very condition and it could not be deemed unexpected or fortuitous. In our case, clearly the injury was the result of an unexpected, external force, albeit while petitioner was performing his routine functions as a police officer. There is nothing in the Lichtenstein definition which eliminates accidents in the mundane pursuit of ordinary and commonplace duties, like patrol. The performance of that duty, however, does not negate the fact that the fall resulted and the injury occurred as the result of a sudden, fortuitous and unexpected happenstance, sufficient to sustain the application for accident disability benefits. Accordingly, I dissent and would reverse and vacate the judgment, grant the petition and remand the matter to respondents for further action consistent with the views expressed herein.