Williams v. City of New York

H. Miller, J.P.,

dissents and votes to modify the judgment appealed from by remitting the matter for a new trial on the issue of damages unless the plaintiffs stipulate to reduce the verdict, with the following memorandum, in which Crane, J., concurs.

On November 13, 1989, in the course of their duties, New York City Police detectives Keith Williams and Richard Guerzon were killed when a prisoner they were transporting shot them with a service revolver he had obtained from a detective’s locker while being detained in a locker room. The prisoner had been handcuffed by one hand to a pipe mounted on a table in the locker room. This was done in anticipation of the prisoner taking a polygraph test. The decedents’ survivors commenced this action against, among others, the City of New York, asserting a cause of action pursuant to General Municipal Law § 205-e based on violations of the Police Department Administrative Guide and Patrol Guide requirements, Administrative Code of the City of NY §§ 27-127 and 27-128, and Labor Law § 27-a. The matter was tried and the jury found, by special interrogatories which addressed each theory of liability sepa*567rately, that the City was liable for violating the predicate statutes and that these violations were a direct or indirect cause of the occurrence.

I agree with my colleagues in the majority that the Police Department Administrative Guide and Patrol Guide requirements may not serve as predicates for liability under General Municipal Law § 205-e and that Administrative Code §§ 27-127 and 27-128 were not violated in this case. However, I respectfully dissent from my colleagues’ determination that the decedents’ workplace was not unsafe within the meaning of Labor Law § 27-a.

General Municipal Law § 205-e (1) imposes liability where injury to a police officer “occurs directly or indirectly as a result of any * * * culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes” or other provisions of law. For a plaintiff to recover damages for personal injuries under General Municipal Law § 205-e, the plaintiff must identify the particular statute allegedly violated by the defendant and establish a reasonable or practical connection between a violation and the injury sustained (see Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423, 441 [1995]; Balsamo v City of New York, 287 AD2d 22, 25-26 [2001]; Abbadessa v City of New York, 269 AD2d 341 [2000]).

In my view, the plaintiffs have a viable cause of action for a violation of Labor Law § 27-a, specifically the general duty clause of section 27-a (3) (a), which provides that: “[e]very employer shall: (1) furnish to each of its employees, employment and aplace of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees; and (2) comply with the safety and health standards promulgated under this section.” (Emphasis added.) A plain reading of the general duty clause (hereinafter the clause) reveals that its focus is on an employer’s duty to provide for the safety of its employees. The central thrust of the clause, contained in clause (1), concerns “recognized hazards” that cause or may cause “death or serious physical harm to * * * employees.” (Labor Law § 27-a [3] [a] [1].) The second part of the clause, clause (2), mandates that employers “comply with [promulgated] safety and health standards.” (Labor Law § 27-a [3] [a] [2].) Thus, taken together, the general duty clause is exclusively focused on an employer’s duty to prevent hazardous conditions from developing, either in employment or the place of employment. At issue in this case is whether the decedents’ *568employer, by detaining prisoners in a locker room where they could acquire firearms, failed to render its workplace free of a recognized hazard that was causing or likely to cause death or serious physical harm.

The term “recognize” means “to be aware of the significance of’ (Webster’s New World Dictionary of American English 1121 [3d College ed 1988]). Therefore, to constitute a “recognized hazard,” the dangerous potential of a condition or activity must actually be known to an employer. In this case, the City had actual knowledge of the hazard presented by using the locker room to detain prisoners. There were, for example, ongoing complaints to superiors of the inadequacy of the locker room for holding prisoners; directives stating that the lockers, where firearms were kept, were required to be secured under the threat of discipline; at least 20 detective squad meetings at which prisoner security was discussed; testimony that it was general practice to leave prisoners in the locker room without supervision; testimony that prisoners not infrequently, such as during meals, were handcuffed by only one hand to the metal pipe mounted to the table. It is reasonable to infer from the presence of these safety precautions, concerns, and lax procedures, that the City was aware that the use of the locker room for detaining prisoners was hazardous, not only because it was not customary to detain prisoners in such an area (prisoners usually were detained in a cell or cage), but also, arid more important, because prisoners were detained in a room in close proximity to firearms.

The majority’s position that, in this case, the City fulfilled its duty to its employees under Labor Law § 27-a (3) by, inter alia, promulgating security memoranda, conducting safety meetings, and requiring the cuffing of prisoners by both hands to the steel bar in the locker room ignores the obvious fact that an accident did occur in this case, despite all those facts. In preparation for a polygraph test, the prisoner, who was handcuffed by one hand to the mounted pipe, obtained and concealed on his person a firearm that he later used to fatally shoot the police officers. Whether the accident could have been avoided by, for example, closer monitoring of the prisoner, or by handcuffing him by two hands to the mounted pipe — a practice not strictly followed — is an issue of comparative fault and, under General Municipal Law § 205-e, cannot enter into the discussion (see Mullen v Zoebe, Inc., 86 NY2d 135, 142-144 [1995]; Warner v Adelphi Univ., 240 AD2d 730 [1997]; see also Raquet v Braun, 90 NY2d 177, 184 [1997]).

Furthermore, this Court’s decision in Sciangula v City of *569New York (250 AD2d 833 [1998]) does not stand for the proposition, as the majority implies, that the clause protects employees only from hazardous physical and environmental conditions in the workplace. In Sciangula, this Court concluded that a police officer’s claim that “following his recuperation from an injury he was returned to duty in an inappropriate work assignment where he was attacked by a prisoner and injured, does not fall within the ambit of Labor Law § 27-a (3).” Sciangula (supra) implies that the common threat of violent encounters between prisoners and police officers does not constitute a hazard within the meaning of Labor Law § 27-a. In this case, however, the employment and place of employment were unsafe not because the officers faced the general risk of being injured by a prisoner. It was unsafe because of a detention practice which posed the specific risk that a prisoner would acquire and use a firearm to physically harm a police officer. The improper detention of prisoners created a hazard in addition to those normally faced by police officers, or, at a minimum, aggravated the existing inherent hazard of potential violence that exists between police officers and prisoners. This, in my view, violated the clause requiring an employer to furnish a hazard-free “employment,” not merely a hazard-free “place of employment.”

In light of the expansive interpretation which must be accorded to General Municipal Law § 205-e (see Gonzalez v Iocovello, 93 NY2d 539 [1999]; Schiavone v City of New York, 92 NY2d 308, 317 [1998]) and to Labor Law § 27-a in effectuating the goal of General Municipal Law § 205-e (see Balsamo v City of New York, supra), and the clear legal duty imposed on public employers under Labor Law § 27-a to provide a safe workplace for their employees, I conclude that the routine practice of detaining prisoners in a locker room containing firearms presented a “recognized” hazard within the meaning of Labor Law § 27-a.

Since a statutory violation has been demonstrated, the only remaining question is whether there is “a practical or reasonable connection between the violation and the injury or death of the police officer” (Abbadessa v City of New York, supra at 341; see Mullen v Zoebe, supra at 140). In an action under General Municipal Law § 205-e, “it is not necessary to demonstrate the same degree of proximate cause as is required in a common-law negligence action” (Dillon v City of New York, 238 AD2d 302, 303 [1997]; see Zanghi v Niagara Frontier Transp. Commn., supra at 441; Giuffrida v Citibank Corp., 288 AD2d 433, 434 [2001], lv granted 98 NY2d 611 [2002]; Brasca v Jes*570sup, 258 AD2d 490 [1999]). Here, it is undisputed that the firearm the prisoner acquired in the locker room in which he was detained was used, shortly thereafter, to fatally shoot the police officers during the prisoner’s transport. It is irrelevant that the shootings took place outside the area where the violation occurred, since the “criterion is simply whether the connection between the statutory violation and the resultant injury is sufficiently ‘practical or reasonable’ ” (O’Connell v Kavanagh, 231 AD2d 29, 34 [1997]; see Jantzen v Edelman of N.Y., 221 AD2d 594 [1995]), or that there was an intervening criminal act “[w]hen the intervening, intentional act of another is itself the foreseeable harm” (Kush v City of Buffalo, 59 NY2d 26, 33 [1983]; see Lusenskas v Axelrod, 183 AD2d 244, 248 [1992]). Accordingly, because it was a natural and foreseeable consequence that a prisoner with access to a firearm would use it against a police officer, there is a sufficient connection between the City’s violation of Labor Law § 27-a and the death of the two officers in this case to support the legal sufficiency of the jury’s verdict (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]).

However, while there is sufficient evidence to impose liability under General Municipal Law § 205-e, in my view, the damages awarded were excessive (see CPLR 5501 [c]). Accordingly, I would modify the order appealed from by remitting the matter for a new trial on damages unless the plaintiffs stipulate to reduce the verdict.