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GENERAL MUNICIPAL LAW - MUNICIPAL LIABILITY - FELLOW OFFICER LAWSUITS

General Municipal Law § 205-e supports lawsuits by police officers when fellow officers violate statutes that impose clear legal duties, and that are a part of well-developed bodies of law.

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

In two separate, but related cases, police officers sought relief under General Municipal Law § 205-e. In the first case, Maria Gonzalez was injured as a result of a traffic accident in which her partner ran a red light in a marked police vehicle. She sued both her partner and the City of New York under § 205-e alleging that her partner violated Vehicle and Traffic Law § 1104(e). The jury awarded her damages, and subsequently the Appellate Division modified on unrelated grounds and affirmed. The City of New York appealed on two grounds. First, the City asserted that fellow officer lawsuits are not authorized under § 205-e. Second, the City argued that Vehicle and Traffic Law § 1104(e) cannot be grounds for a § 205-e claim.

The Court denied the City's appeal on both grounds. Fellow officers are valid targets of a General Municipal Law § 205-e claim. The many and varied amendments to § 205-e do not specifically exclude claims based on fellow officer actions. The Court concluded that the Legislative intent was to apply the law expansively to include actions of fellow officers. Furthermore, the Court determined that Vehicle and Traffic Laws are part of a well-developed body of law, and that Vehicle and Traffic Law § 1104(e) imposes a clear legal duty. As such, a § 205-e claim may be predicated on a violation of § 1104(e).

In the second case, Sean Cosgriff was injured when, in the course of his duties as a New York City police officer, he tripped and fell on a defective sidewalk. The City had previously issued a notice requiring repair of the defective sidewalk. Cosgriff sued the owner of the property, its management company, and the City. His private claims were settled, but the suit against the City went forward based on common-law negligence theories and General Municipal Law § 205-e. The lower courts found in favor of Cosgriff. The City appealed, arguing that the New York City Charter and Administrative Code statutes on which Cosgriff based his claim are not appropriate for a § 205-e claim. The Court denied this appeal as well, holding that New York City Charter § 2903(b)(2) and Administrative Code of the City of New York § 7-201(c) dictate clear legal duties, are part of well-developed bodies of law, and as such, may be the basis of a § 205-e claim.

ISSUE & DISPOSITION

Issue(s)

1) Whether General Municipal Law § 205-e can be used in claims based on the actions of fellow officers.

2) Whether Vehicle and Traffic Law § 1104(e), New York City Charter § 2903(b)(2), and Administrative Code of the City of New York § 7-201(c) can form the basis of a claim asserted under General Municipal Law § 205-e.

Disposition

1) Yes. Actions of fellow officers have not been specifically excluded despite numerous amendments to the law. The Legislature intended an expansive application of General Municipal Law § 205-e to include fellow officers' lawsuits.

2) Yes. Each statute at issue requires a clear legal duty, and is a part of a well-developed body of law. Therefore, each statute may be the basis of a claim under General Municipal Law § 205-e.

AUTHORITIES CITED

Cases Cited by the Court

Other Sources Cited by the Court

  • Vehicle and Traffic Law § 1104(e).
  • General Municipal Law § 205-e.
  • N.Y. Gen. Oblig. Law § 11-106.
  • N.Y. City Admin. Code § 7-291(c); § 19-152.
  • N.Y. City Charter § 2903(b)(2); § 2904.
  • 1989 N.Y. Laws, Governor's Mem. approving, 1989 N.Y. Legis. Ann. at 182.
  • 1989 N.Y. Laws 346, Sponsor's Mem. in Support, 1989 N.Y. Legis. Ann. at 180.
  • 1990 N.Y. Laws 762.
  • 1992 N.Y. Laws 474.
  • 1994 N.Y. Laws 664.
  • 1996 N.Y. Laws 703.
  • 1996 N.Y. 703, Sponsor's Mem. in Support, 1996 Legis. Ann. at 529.
  • Calatayud v. California, 959 P.2d 360 (Ca. 1998).
  • Linden v. Solomacha, 556 A.2d 346 (N.J.1989).
  • Mitsuuchi v. City of Chicago, 532 N.E. 2d 830 (Ill. 1988).
  • Taylor v. City of Redmond, 571 P.2d 1388 (Wa. 1977).
  • Roberts v. Sewerage and Water Board of New Orleans, 634 So.2d 341 (La. 1994).

COMMENTARY

State of the Law Before Gonzalez and Cosgriff

General Municipal Law § 205-e provides a right of action for police officers injured in the course of duty. The statute, which the Legislature has amended several times since enacting it in 1989, is to be applied "expansively." See Schiavone v. City of New York, 92 N.Y.2d 308 (N.Y. 1998) (noting that "an expansive interpretation is consistent with the over-all goal of this legislation"). Attempts by the Court to limit the application of the statute have been legislatively overruled. See L. 1996, ch. 703 (replacing the holding of St. Jacques v. City of New York, 215 A.D.2d 75, aff'd on different grounds 88 N.Y.2d 920 (N.Y. 1996)).

In Desmond v. City of New York, 88 N.Y.2d 455 (N.Y. 1996), the Court considered whether a departmental directive was "within the class of 'statutes, ordinances, rules, orders and requirements' whose violation can sustain a cause of action under General Municipal Law § 205-e." Desmond, 88 N.Y.2d at 459. The Court concluded that this particular directive was not within this class for failing to meet the first of two requirements called for in § 205-e. Id. at 463. The first requirement, which the directive in Desmond lacked, is that the statute must impose a particularized mandate or a clear legal duty. Id. at 464. The second requirement is that the statute be part of a well-developed body of law and regulation. Id. at 464.

The other statutes at issue, Vehicle and Traffic Law § 1104 and city Charter § 2904, have also been interpreted prior to this case. Vehicle and Traffic Law § 1104 exempts the drivers of emergency vehicles from certain traffic laws when the drivers are "involved in an emergency operation." The Court has held that Vehicle and Traffic Law § 1104(e) "precludes the imposition of liability for otherwise privileged conduct except where the conduct rises to the level of recklessness." Saarinen v. Kerr, 84 N.Y.2d 494, 497 (N.Y. 1994); see also Campbell v. City of Elmira, 84 N.Y.2d 505 (N.Y. 1994). Additionally, with regard to City Charter § 2904 and Administrative Code § 19-152, the Court has determined that these provisions do not impose an affirmative duty on the city to "keep its sidewalks in safe repair." Such duty lies on the property owners. See St. Jacques v. City of New York, 215 A.D.2d 75, aff'd on different grounds 88 N.Y.2d 920.

Effect of Gonzalez and Cosgriff on Current Law

The Court indicated that it was going to follow Legislative intent in construing General Municipal Law § 205-e expansively. If the Legislature had intended to block fellow officer lawsuits, the Court reasoned that it would have chosen to do so at one of the several points in which it amended the statute. After Gonzalez, it is clear that General Municipal Law § 205-e permits a police officer to sue the City of New York for misconduct by a fellow officer.

The Court clarified its holding in Desmond v. City of New York, 88 N.Y.2d 455, 459 (N.Y. 1996), by determining that the conduct described by a statute, serving as a predicate for a General Municipal Law § 205-e claim, must be measurable by an objective standard for purposes of establishing liability. In Desmond, the directive at issue authorized an officer to use guided discretion within certain specific criteria, which the Court determined was not a particularized mandate or a clear legal duty that can be objectively reviewed by a factfinder. In contrast, § 1104(e) establishes a clear duty by imposing "the duty to drive with due regard for the safety of all persons." Vehicle and Traffic Law § 1104(e). This statute is also a part of a well-developed body of law because it is from this State's Legislature which, the Court notes, "is very different in rank, in kind and in effect from what was involved in Desmond." Gonzalez at para. 17.

In Cosgriff, the Court distinguished between New York City Charter § 2904 and Administrative Code § 19-152, that do not impose legal duties upon the City, and City Charter § 2903(b)(2) and Administrative Code § 7-201 which do place the ultimate duty to direct or effect repairs of sidewalks on the City. As such, City Charter § 2903(b)(2) and Administrative Code § 7-201 can serve as the basis for a claim under General Municipal Law § 205-e.

Unanswered Questions

This Court's holding, that fellow officer lawsuits are not precluded under General Municipal Law § 205-e, seems to be at odds with General Obligations Law § 11-106, which specifically precludes these lawsuits. Considering this apparent incongruity, will the Legislature respond by amending § 205-e to preclude cases involving the negligence of fellow officers?

From this holding, as well as that of Desmond v. City of New York, 88 N.Y.2d 455 (N.Y. 1996), the Vehicle and Traffic Law, New York City Charter, and Administrative Code qualify as well-developed bodies of law for purposes of General Municipal Law § 205-e, while the particular police department directive at issue in Desmond does not. As a minor consideration, the criteria for determining whether a law or statute is part of a well-developed body of law have yet to be articulated in detail. In addition, when considering this holding in conjunction with subdivision three of § 205-e, would a provision qualify if it codifies a common-law duty, but is not a part of a well-developed body of law?

In regard to the claim in Cosgriff, does it matter whether a city has notice of a sidewalk defect when considering this type of claim under General Municipal Law § 205-e? In other words, can a § 205-e claim be predicated on City Charter § 2903(b)(2) in isolation, when the requirements of Administrative Code § 7-201 have not been met?

Survey of the Law in Other Jurisdictions

Other states have not been as receptive as New York when confronted with fellow officer lawsuits. In Calatayud v. State, 959 P.2d 360 (Ca. 1998), a similar issue was raised when two California Highway Patrol Officers shot a Pasadena Police Officer while they were attempting to control and detain a suspect. California Civil Code § 1714.9 (a)(1) provides that limitation on liability does not extend where the injury occurs after the presence of the officer is known. The California Supreme Court declined to extend § 1714.9 (a)(1) to fellow police officers engaged in the course of their duties.

In New Jersey, N.J.S.A. 34:15-8 provides that persons in the same employ are not liable for injury or death except for intentional wrongs. The Superior Court of New Jersey in Linden v. Solomacha, 556 A.2d 346 (N.J. 1989), construed this bar against tort claims to extend to co-employees working in different departments. In this case, the injury occurred when a state police officer was struck by a state vehicle driven by an employee of the state Department of Treasury while both were acting in their official capacities.

Similarly, the Supreme Court of Illinois in Mitsuuchi v. City of Chicago, 532 N.E. 2d 830 (Ill. 1988), held that an injured police officer was barred from bringing a common-law negligence action against a fellow officer after their squad car struck a light pole. The appellate court had previously ruled that the officer could not maintain a common-law negligence action against the City under §§ 22-18 through §§ 22-22 of the Municipal Code, which were enacted under the authority of § 22-306 of the Pension Code. The Supreme Court of Illinois held that a plaintiff is barred from maintaining a negligence action against a fellow officer under § 22-307 of the Pension Code.

In Washington, however, fellow officer lawsuits have received similar treatment to that in New York. In Taylor v. City of Redmond, 89 Wash.2d 315, 571 P.2d 1388 (1977), the Supreme Court of Washington addressed the issue of whether a city police officer who was shot by a fellow officer while both were on duty could sue the city and the fellow officer for negligence. The Court held that the officer was not within the scope of the Workers Compensation Act because the Law Enforcement Officersç and Fire Fightersç Retirement System Act exempted police officers and fire fighters from coverage. Thus, the officer was able to bring a negligence suit against the city and fellow officer.

Finally, on a related note, the Supreme Court of Louisiana examined the issue of whether the Sewerage and Water Board of New Orleans was immune from tort liability where a New Orleans police officer was injured when his patrol car hit an open sewer hole. The Court in Roberts v. Sewerage and Water Board of New Orleans, 634 So.2d 341 (1994), held that the Sewerage and Water Board was independent and autonomous from the City of New Orleans and, thus, was not entitled to tort immunity as the employer of the officer.

Prepared by:

  • Kevin Churchill, '01
  • Shannon Steege, '00
  • Jason Jones, '01
  • Noel Valdez, '01
  • Kristin Schledorn, '01