St. Jacques v. City of New York

Tom, J. (dissenting).

Plaintiff Daniel St. Jacques, a New York City police officer, was injured while pursuing a robber in the line of duty when he stumbled and fell due to a broken and defective condition in the sidewalk. Plaintiffs (the officer’s wife filed a claim for loss of consortium) commenced the underlying action in February 1990 against the City of New York (the City) asserting common-law negligence and a cause of action under General Municipal Law § 205-e.

During the course of the jury trial, at the close of plaintiffs’ case, counsel for both sides stipulated that the City had received notice of the sidewalk defect in question from the Big Apple Pothole & Sidewalk Protection Corporation and conceded that prior to the occurrence, it failed to issue notices of violation to the abutting owner or make repairs to the sidewalk. The City thereafter moved to dismiss the action on the grounds that the common-law claims were barred as a matter of law pursuant to the holding of Santangelo v State of New York (71 NY2d 393), and that plaintiffs had no viable claim pursuant to General Municipal Law § 205-e. Justice Hughes agreed with the City and dismissed the complaint.

New York City Police Officer Larry Wiltbank was injured in the same manner as St. Jacques in that he tripped and fell on an allegedly defective sidewalk while chasing a criminal suspect. Justice Hughes granted the City a directed verdict and dismissed Wiltbank’s complaint for the same reasons set forth in the St. Jacques’ decision. Both police officers appeal the dismissal of the General Municipal Law § 205-e claim only.

*84The plaintiffs argue herein that General Municipal Law § 205-e* should be afforded a broad interpretation so that an officer can seek recourse against the City for the City’s failure to maintain its sidewalks. The City, on the other hand, contends that the statute should be narrowly construed, and that its legislative history indicates it was not meant to cover situations such as the one before us.

The IAS Court, in dismissing both complaints, disagreed with plaintiffs’ analysis and held that the Charter and Administrative Code provisions which require the City to maintain its sidewalks did not impose any duty upon the City but, instead, were directed against, and imposed a duty upon, abutting landowners. Justice Hughes also held that Administrative Code of the City of New York § 7-201 (c) (2) (the Pothole Law) was intended to impose an obligation of a prior written notice before a claimant could recover against the City for a violation of the City’s common-law duty to maintain the sidewalks and was not intended to impose a new statutory duty upon the City.

Plaintiffs maintain that the City violated, inter alia, section 2904 of the New York City Charter and Administrative Code of the City of New York §§ 19-152 and 7-201 (c) (2), which impose a nondelegable duty upon the City to maintain its sidewalks in good repair and provide the mechanism by which the City is to carry out its duty. Plaintiffs contend that the foregoing provisions mandate that the City inspect the sidewalks for defects or, upon written notice of same, direct the abutting landowner to repair the sidewalk, if warranted, or perform the repairs itself.

General Municipal Law § 205-e, enacted in July 1989, created a new cause of action for police officers injured in the line of duty and provides for liability: ”[I]n the event any *85accident, causing injury, death or a disease which results in 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 their departments, divisions and bureaus” (§ 205-e [1]; emphasis added).

The obligation to maintain its sidewalks in a reasonably safe condition, and the attendant tort liability for the failure to do so, has always rested with the City (D’Ambrosio v City of New York, 55 NY2d 454, 462; Oeters v City of New York, 270 NY 364, 368; Rubin v City of New York, 211 AD2d 417, 418). The City’s duty derives from both the common law as well as from statute. In Lopes v Rostad (45 NY2d 617, 623), the Court of Appeals observed that:

"It has long been established that a governmental body, be it the State, a county or a municipality, is under a nondelegable duty to maintain its roads and highways in a reasonably safe condition, and that liability will flow for injuries resulting from a breach of the duty * * *.

”The source of this duty is not only the common-law, but also statute. ” (Emphasis added.)

In holding that a municipality has a nondelegable statutory duty to maintain its streets in good repair, the Court of Appeals in Lopes (supra, at 623) cited the following language from Highway Law § 102: " 'The County superintendent * * * shall * * * 1. Have general charge and supervision of the work of constructing, improving, repairing and maintaining all county roads.’ ”

Similarly, section 2903 (b) (2) of the New York City Charter (the Charter) provides:

"b. Highway operations. The commissioner shall have charge and control of the following functions relating to the construction, maintenance and repair of public roads, streets, highways, parkways, bridges and tunnels * * *

"(2) designing, constructing and repairing of public roads, streets, highways and parkways”.

*86Since the Charter employs almost identical language to that employed by Highway Law § 102, the conclusion can be drawn that the City is under a nondelegable statutory duty to maintain its streets and sidewalks.

In City of New York v Kalikow Realty Co. (132 AD2d 481, affd 71 NY2d 957), this Court held that section 230 of the New York City Charter (now NY City Charter § 2904 and Administrative Code § 19-152) imposes a nondelegable statutory duty upon the City to maintain its sidewalks in good repair. As this Court held: "The sole basis for the finding of liability against the city was its statutory duty to maintain the city sidewalks. The language of the letter, supra, however, clearly shows that Kalikow voluntarily assumed the duty to maintain the sidewalk in a safe condition during the course of the planned construction. Although, as the dissent emphasizes, the city had a nondelegable duty to maintain the sidewalk, it must be emphasized that that duty ran to Manos.” (Supra, at 482; emphasis added.)

In affirming Kalikow, the Court of Appeals stated that: "It bears emphasis that the issue before us is limited to who, as between the City and this property owner, should ultimately pay plaintiff’s judgment. This case in no way affects either the injured plaintiff, who has already been fully compensated by the City, or the City’s nondelegable duty to maintain its sidewalks, a duty the City concedes. Nor does our holding countenance the City’s breach, as found after trial, of its obligation to maintain its streets in safe condition, or inject any disincentive to performance of that duty.” (City of New York v Kalikow Realty Co., supra, at 958-959; emphasis added.)

In view of the foregoing, the City’s attempt to shift its nondelegable statutory duty to the abutting landowner, an argument which the court below erroneously adopted, must be rejected. The next question, in the answer of which I disagree with the majority, is whether a cause of action pursuant to General Municipal Law § 205-e may be premised on violations of section 2904 of the New York City Charter and Administrative Code § 19-152.

General Municipal Law § 205-e (1) clearly and unambiguously provides that a cause of action may be asserted thereun*87der upon the 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” (emphasis added). There are absolutely no restrictions or exceptions for claims arising under the Administrative Code or the Charter and since the primary consideration of the court in construing statutory provisions is to ascertain and give effect to the legislative intent through a literal reading of the words and language of the statute itself (McKinney’s Cons Laws of NY, Book 1, Statutes § 92 [a]; Matter of State of New York v Ford Motor Co., 74 NY2d 495; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471, 479-480; Matter of Albano v Kirby, 36 NY2d 526, 529-530; Matter of Allstate Ins. Co. v Libow, 106 AD2d 110, 114, affd 65 NY2d 807), the lack of qualification for the provisions in question is decisive. Further, where the statute in question is clear on its face, and its words "are possessed of a definite and precise meaning”, the resort to extrinsic matter, such as its legislative history, is inappropriate (Matter of Allstate Ins. Co. v Libow, supra, at 114; Matter of Yong-Myun Rho v Ambach, 74 NY2d 318, 322; see also, Giblin v Nassau County Med. Ctr., 61 NY2d 67, 74).

"[T]he plain and obvious meaning of a statute is always preferred to any curious, narrow or hidden sense that nothing but a strained interpretation of legislative intent would discern. * * *

"[CJourts may only look behind the words of a statute when the law itself is doubtful or ambiguous.” (Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., supra, at 479-480 [emphasis added]; Matter of Yong-Myun Rho v Ambach, supra, at 322.)

Hence, in light of the clear wording of the statute, there is, in my view, no need to go beyond the unambiguous provisions of the statute, nor is there any support for the assertion that the Charter and Administrative Code provisions in question should be excluded. Indeed, the Second Department has held that a cause of action interposed under General Municipal Law § 205-e may be premised upon a violation of a City Charter provision (Del Casino v City of New Rochelle, 176 *88AD2d 282 [in which a police officer was allowed to maintain an action for injuries sustained due to the City of New Rochelle’s failure to properly maintain a footbridge in accordance with the provisions of the New Rochelle City Charter and the Highway Law]), and the Fourth Department has held that a General Municipal Law § 205-e claim may encompass common-law duties (Alberti v Eastman Kodak Co., 204 AD2d 1022, rearg and Iv denied App Div, 4th Dept, Sept. 30, 1994 [in which the Court held that "(w)e decline to adopt the reasoning * * * that a statute or regulation that merely codifies a common-law duty cannot serve as a predicate for a General Municipal Law § 205-e cause of action.”]).

The Court of Appeals, in the recently decided trio of cases captioned Zanghi v Niagara Frontier Transp. Commn. (85 NY2d 423), reiterated its holding in Cooper v City of New York (81 NY2d 584), that pursuant to the "firefighter rule”, police and firefighters may not recover in common-law negligence for line-of-duty injuries which result from risks associated with the particular dangers inherent in that type of employment (Zanghi v Niagara Frontier Transp. Commn., supra, at 436).

In Roquet v Braun, one of the appeals decided in Zanghi, however, the volunteer firefighter, who suffered paralyzing injuries when a wall and canopy roof collapsed, asserted common-law and statutory negligence claims. The Court, in addressing the viability of the plaintiff’s claims under General Municipal Law § 205-a (the legislative counterpart to General Municipal Law § 205-e) stated:

"To fall within the protective scope of the statute and defeat a motion to dismiss, a plaintiff seeking recovery under General Municipal Law § 205-a must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm to the firefighter (Brophy v Generoso, 137 AD2d 478, 479). * * *

"In Kenavan v City of New York (70 NY2d 558, supra) * * * [t]he Court rejected the theory—improperly revived by the Appellate Division in this case—that the statutory relief is limited solely to 'violations of fire preventive regulations’ and *89explained that the statute authorizes a damage award for firefighters injured in 'premises harboring violations of safety provisions that create hazards additional to those that firefighters already face in their profession’ (id. [emphasis added]).

"Additionally, our statement in Kenavan that safety violations 'create hazards additional to those that firefighters already face in their profession’ (70 NY2d, at 567, supra) was not intended to create an additional pleading requirement for a plaintiff firefighter seeking to establish a section 205-a claim. Rather, through that language we merely meant to point out that safety violations, by their nature, increase the hazards that firefighters would normally face in buildings harboring no such violations.” (Supra, at 441, 442-443.)

In view of the foregoing broad application given to General Municipal Law § 205-a, I conclude that in the instant matters, plaintiff police officers, who were allegedly injured while pursuing a suspect and were caused to slip and fall on a broken and defective sidewalk which the City failed to maintain pursuant to its statutory obligations, have stated a valid cause of action under General Municipal Law § 205-e as the violations in question " 'create hazards additional to those that [policemen] already face’ ” (supra, at 443).

The majority, in placing reliance on Kenavan v City of New York (70 NY2d 558, supra), concludes, inter alia, that since the provisions of General Municipal Law § 205-e do not create any greater duty than that which exists at common law, "[t]he same risk of injury would have been present whether or not the alleged statutory violations occurred”.

The Court of Appeals, in Zanghi, however, clarified the holding of Kenavan and held that violations that "increase the hazards that firefighters would normally face” (Zanghi v Niagara Frontier Transp. Commn., supra, at 443) are actionable and further stated that the Appellate Division had erred in dismissing the General Municipal Law § 205-a claim on the ground that the code violations "did not create any dangers for the firefighters beyond those they would traditionally confront” (supra, at 443). I submit that the majority’s conclusion is precisely what the Court of Appeals in Zanghi held was error, for while a police officer in pursuit always faces the risk of injury, the City’s statutory violations herein increased the risk the officer would normally face in his or her profes*90sion and therefore serve as a predicate for General Municipal Law § 205-e liability.

In conclusion, since the City breached a statutory, nondelegable duty which increased the risk faced by a police officer pursuing a suspect in the course of the performance of his duties, leading to injury, I conclude that plaintiffs’ General Municipal Law § 205-e claims are valid, the complaints should be reinstated and new trials ordered.

I further conclude that there is no legal support for the majority’s finding that General Municipal Law § 205-e does not apply to the provisions of the Administrative Code and the Charter in issue because they are codifications of a preexisting common-law duty. If the intent of the Legislature was to exclude the subject provisions of the Administrative Code and the Charter from the application of General Municipal Law § 205-e, it could have done so in clear and plain language, and the all-inclusive term "any” would have been deleted from the statute. General Municipal Law § 205-e provides for no such exception.

Sullivan, J. P., Rosenberger and Asch, JJ., concur with Ross, J.; Tom, J., dissents in a separate opinion.

Judgments, Supreme Court, New York County, entered December 12, 1994 and December 13, 1994, affirmed, without costs.

General Municipal Law § 205-e, like its counterpart General Municipal Law § 205-a, was enacted in an attempt to ameliorate the often harsh results of the common-law rule that firefighters, and policemen, were held to have assumed the risks of their profession despite the fact that the owner of the premises on which they were injured was negligent in creating a condition which led to the injury (see, e.g., Santangelo v State of New York, supra).