Can a Police Officer or Firefighter Sue After Being Hurt on the Job in New York?

Yes, in most cases. For a long time the answer in New York was no. The Legislature has taken that rule apart in stages since 1935, and today an injured officer often has two claims against an outside party and, in narrower cases, one against the department itself.

Take an invented example. A Nassau County police officer answers a night alarm at an office building in Hicksville. The stairwell lights are out, and the officer falls down a flight of stairs and tears a knee. Months earlier the town had issued the owner a violation order for the stairwell lighting, and nobody fixed it. Our post on carbon monoxide at a restaurant or mall touched these statutes for the officers who answered that call; this one is about the officer’s own claim.

Where the firefighter rule came from

The firefighter rule is judge-made. The Court of Appeals gave the modern reason in Santangelo v State of New York (1988): “as a matter of public policy firefighters trained and compensated to confront such dangers must be precluded from recovering damages for the very situations that create a need for their services.”

Santangelo is a Long Island case. Two Suffolk County police officers were hurt trying to subdue a man who had escaped from Kings Park Psychiatric Center. The Court of Claims found the State negligent in letting him escape, and the officers still recovered nothing, because the policy behind the rule applied “as well to police officers injured in the line of duty.”

Consequently, every claim an officer has today comes from a statute. Without one, the common-law rule still controls.

How New York took the rule apart

The Court of Appeals traced the history in Giuffrida v Citibank Corp. (2003). General Municipal Law § 205-a, enacted in 1935, gave firefighters a claim when a violated statute or regulation caused a line-of-duty injury. In 1989, as “a direct response to Santangelo,” the Legislature enacted § 205-e to give police officers the same claim. Amendments in 1992 and 1996 made both claims apply wherever the violation happens and even when the violated provision “codifies a common-law duty.”

The 1996 law also enacted General Obligations Law § 11-106, the broad one. It gives an officer hurt “while in the lawful discharge of his official duties” a claim against “any person or entity, other than that police officer’s or firefighter’s employer or co-employee,” whose neglect or culpable conduct proximately caused the injury. The Court in Giuffrida said it “largely abolishes the firefighter’s rule.”

Here is how Jason Tenenbaum explains what these statutes did to the old rule:

They abrogate the firefighter rule. The old rule stated that a firefighter or police officer could not sue for getting hurt doing their job because dealing with danger is part of the job. That’s out the door now. Under General Obligations Law section 11-106 an officer has a cause of action for ordinary negligence against anyone other than the employer or a co-worker, like the owner of the building. And under 205-a for firefighters and 205-e for police officers, if you can show that there was a violation of a statute, ordinance or rule regarding the premises or activity that is causally related to your injury, then you have a cause of action.

For the officer in Hicksville, that means two claims against the building owner: negligence, and a statutory claim built on the uncured violation order. The card below sets out both.

Which violations count

Read literally, the two statutes reach a violation of any requirement of any government body. The Court of Appeals has refused to read them that way. In Williams v City of New York (2004), quoting Galapo, it said the statute “cannot reasonably be applied literally in accordance with its broad language,” and that the officer “must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties.”

The cases sort the rules into two piles. The NYPD Patrol Guide does not count, because it is not “a duly-enacted body of law or regulation” (Galapo v City of New York, 2000), and neither does a department guideline that leaves the risk to each officer’s “individual judgment” (Desmond v City of New York, 1996). The emergency-driver statute in the Vehicle and Traffic Law counts (Gonzalez v Iocovello, as described in Williams), as do Penal Law sections that prohibit specific acts, with no conviction required (Williams). So does the general duty clause of the Public Employee Safety and Health Act (Gammons v City of New York, 2014).

A proper rule is not enough; it must actually have been broken. Where no criminal charges were brought, Williams held that “a rebuttable presumption exists that the Penal Law has not been violated,” and the Court affirmed the dismissal of both cases before it.

The practical question comes first:

So the first question is which rule they broke. You got to find out what statute or ordinance they violated. It has to be from a well-developed body of law that imposes clear duties, like a building code or a fire code. The department’s own patrol guide doesn’t count. The best proof is generally going to be a violation order from the town or the fire marshal that was never cured and someone who saw it that day.

In Hicksville, that is the town’s order on the stairwell lights. Get a copy of it, and of any order that came before it.

How close the connection must be

The statutory claim reaches an injury that happens “directly or indirectly” because of the violation. In Giuffrida, a New York City firefighter fought a fire in a doughnut shop the Fire Department had cited twice for an altered fire suppression system that was never fixed. He stayed inside working the last hose so the others could get out, his air ran out, and he was burned and overcome by smoke. The Appellate Division blamed the empty air tank. The Court of Appeals reversed.

A plaintiff “need only establish a ‘practical or reasonable connection’ between the statutory or regulatory violation and the claimed injury,” the Court held. The empty tank “was not a superseding cause”; it was “the result of an act of courage.” Two uncured violations and a fellow firefighter who saw no sign the system had gone off were enough to defeat summary judgment. The Court also repeated that comparative fault principles cannot be used to defend a firefighter’s claim under the statute. The link still has to be shown: the plaintiff “will always be required to raise a question of fact” that the violation was a direct or indirect cause.

Who can be sued, and who cannot

Outside parties are the main defendants: the building owner, a store or tenant, a driver, a contractor. The negligence statute was written for them, and the statutory claim applies too when they broke a qualifying rule.

The officer’s employer and fellow officers are different. The negligence statute keeps the old bar for them. For police, Williams put it plainly: liability against a fellow officer or the employer “can only be based on the statutory right of action in General Municipal Law § 205-e.” Those cases are hard, though Gammons let an officer proceed against the NYPD over a fall from a police truck. Williams held the safety act’s general duty clause does not reach “the special risks faced by police officers because of the nature of police work,” such as how prisoners are held and weapons are stored.

Volunteer firefighters face one more limit. The firefighter statute covers any “member” of a fire department, but Volunteer Firefighters’ Benefit Law § 19 makes that law’s benefits “the exclusive remedy” against the political subdivision and others acting under governmental authority. In Brady v Village of Malverne (2010), the Second Department held that a Malverne volunteer’s widow could not use the firefighter statute to recover from the village and the fire company after he was pinned against the firehouse ceiling while working on top of a fire truck another firefighter was driving out. Section 19 protects only the listed political subdivisions and those “acting under governmental or statutory authority”; a private owner or driver is not on that list.

Consequently, for most officers the real case is against the outside party. The decision flow below follows the three doors.

Salary and medical benefits, and the employer’s claim

General Municipal Law § 207-c covers “any member of a police force of any county,” town, village or city of under one million people, which by its terms reaches a county police force such as Nassau’s or Suffolk’s. The employer pays “the full amount of his or her regular salary or wages” until the disability ends and is liable “for all medical treatment and hospital care.” Section 207-a gives paid firefighters of a town, village, fire district or smaller city the same protection. Volunteers are covered by their own benefit law instead.

The county, village or fire district that paid has its own “cause of action” for reimbursement against any third party the officer can sue. Consequently, most settlement conversations include the employer’s claim, and it is better to raise it early than to find it at the closing.

The deadlines

Against a public body the clock is much shorter than the three years a private defendant gets: a notice of claim within 90 days under General Municipal Law § 50-e, and suit within one year and ninety days. Before suit, the municipality has the right to demand an examination of the claimant under § 50-h; our post on the 50-h hearing walks through it, and our statute of limitations guide has the general chart.

The first days after the injury are when the proof is easiest to get:

So write down the address, the owner, the conditions you saw, the names of people who were there. If it’s a private building, a private car, you have three years to sue. If it’s a town, village, county or school district, you have 90 days to serve a notice of claim. And remember that the county or village paying your salary and medical bills under 207-c or 207-a has its own claim against the same party for what they paid.

Bring these to the first call

• The police or fire department incident report number, and the date, time and address.
• Any violation order, summons or inspection record on the building, vehicle or site, and the agency that issued it.
• Names of the officers, firefighters and witnesses who saw the condition.
• Photographs of the scene and the condition, taken that day if you have them.
• Your salary-and-medical benefits determination or volunteer benefits claim number.

Back to Hicksville

The officer is paid by the County while the knee heals. The building owner is a private party, so the officer has three years to sue it, in negligence and on the uncured lighting violation, and the County has its own claim against the same owner for what it paid. Our premises liability practice covers how an owner’s notice of a condition is proved, and our wrongful death practice covers the claims a family brings when an officer does not come home.

Sources

• General Obligations Law § 11-106
• General Municipal Law § 205-a and § 205-e
• General Municipal Law § 207-a and § 207-c
• General Municipal Law § 50-e, § 50-h and § 50-i
• Volunteer Firefighters’ Benefit Law § 19
• CPLR 214 and EPTL 5-4.1
• Santangelo v State of New York, 71 NY2d 393 (1988)
• Desmond v City of New York, 88 NY2d 455 (1996)
• Galapo v City of New York, 95 NY2d 568 (2000)
• Giuffrida v Citibank Corp., 100 NY2d 72 (2003)
• Williams v City of New York, 2 NY3d 352 (2004)
• Brady v Village of Malverne, 76 AD3d 691 (2d Dept 2010)
• Gammons v City of New York, 24 NY3d 562 (2014)

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If you are a police officer or firefighter hurt on a call on Long Island, call (516) 750-0595 with the incident report number and any violation order on the property, or request a free case review.