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SHEPHERD v. WERWAISS

November 27, 1996

MARTIN SHEPHERD and ELIZABETH SHEPHERD, Plaintiffs, against BETH N. WERWAISS, NATIONAL RAILROAD PASSENGER CORPORATION and ALAR MANAGEMENT, Defendants.


The opinion of the court was delivered by: TRAGER

MEMORANDUM AND ORDER

 TRAGER, District Judge:

 Plaintiff Martin Shepherd and his wife Elizabeth Shepherd brought a personal injury action against Beth N. Werwaiss, *fn1" National Railroad Passenger Corp. ("Amtrak") and Alar Management Corp. ("Alar") pursuant to General Municipal Law ("GML") § 205-e in conjunction with the Administrative Code of the City of New York, § 16-118 and the New York City Health Code, § 153.01. Pl. Mem. at 3. Amtrak now brings this motion for summary judgment, claiming that GML § 205-e does not apply in the instant case. Defendant Alar has joined in this motion.

 Background

 At the time he suffered the injury forming the basis of this action, Martin Shepherd was a New York City police officer and served as a member of the Violent Predator Task Force. Def. 3g P 1. He had been employed as a police officer since January 3, 1983. Id. On the morning of April 29, 1991, Shepherd and his partner assisted a warrant squad team in efforts to execute an arrest warrant on a suspect in Astoria, Queens. Id. P 2. When two officers attempted to arrest the suspect in his home, the suspect fled through the back window, whereupon Shepherd commenced chasing him. Id. PP 3,4. Although plaintiff drew his weapon and ordered him to stop, the suspect continued to flee. Pl. Mem. at 2. During the ensuing chase, which continued along a railroad trestle, Shepherd saw the suspect scale and "go over" a chain link fence. Id. Shepherd then climbed and jumped off of the six or seven foot fence in pursuit of the suspect. Def. 3g P 5. Shepherd fractured his left ankle when he landed on a steel wheel from a baby carriage or stroller that was covered by an empty baby diaper box. Pl. Mem. at 2. It is not contested that the sidewalk onto which Shepherd fell is not owned by Amtrak, but rather is adjacent to Amtrak property. Def. 3g P 7. Alar is responsible for maintenance of Amtrak's premises. *fn2"

 Discussion

 The salient issue on this motion for summary judgment is whether Amtrak's alleged violations of the Administrative Code of the City of New York § 16-118 and the New York City Health Code § 153.01 are proper predicates for a GML § 205-e action. In relevant part, the much-amended GML § 205-e now reads:

 
1. In addition to any other right of action or recovery under any other provision of law, in the event any accident, 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, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any police department injured, or whose life may be lost while in the discharge or performance at any time or place of any duty imposed by the police commissioner, police chief or other superior officer of the police department . . . .
 
3. This section shall be deemed to provide a right of action regardless of whether the injury or death is caused by the violation of a provision which codifies a common-law duty and regardless of whether the injury or death is caused by the violation of a provision prohibiting activities or conditions which increase the dangers inherent in the work of any officer, member, agent or employee of any police department. *fn3"

 Section 205-e, first enacted in 1989, substantially cabined the common-law firefighter's rule, which had been extended to police officers by the New York Court of Appeals in Santangelo v. New York, 71 N.Y.2d 393, 397-98, 526 N.Y.S.2d 812, 521 N.E.2d 770 (N.Y. 1988). The historical firefighter's rule (or defense) precluded firefighters from recovering against "property owners or occupants whose negligence in maintaining the premises occasioned the fires." Id. at 397. In 1935, however, the legislature passed GML § 205-a to permit firefighters to sue for damages when they suffered injuries in the line of duty because of a private party's failure to comply with "some statute, ordinance, or rule respecting the maintenance and safety of such premises." Kenavan v. City of New York, 70 N.Y.2d 558, 567, 523 N.Y.S.2d 60, 517 N.E.2d 872 (N.Y. 1987). In 1989, in response to the Santangelo extension of the common-law firefighter's rule to police officers, the legislature enacted § 205-e to allow police officers to recover damages from private citizens when such injuries are due to violations of statutes and ordinances.

 In 1992, the legislature amended § 205-e to clarify that police officers, unlike firefighters, could recover for injuries acquired at any time or place - not only for injuries due to failure to maintain safe premises. The statement of legislative intent accompanying the 1992 amendment provides that § 205-e should not:

 
be limited to violations pertaining to the safe maintenance and control of premises. Since our police officers are required to confront dangerous conditions under many and varied circumstances, there is a need to ensure that a right of action exists regardless of where the violation causing the injury or death occurs.

 Zanghi v. Niagara Frontier Transp. Comm'n, 85 N.Y.2d 423, 445, 626 N.Y.S.2d 23, 649 N.E.2d 1167 (N.Y. 1995) (quoting § 1 of L 1992, ch 474).

 In the most recent series of amendments enacted October 9, 1996, the legislature abolished the firefighter's rule (or defense) through the § 205 statutory right of action. The legislature: 1) established parity between § 205-a and § 205-e by permitting firefighters, like police officers, to sue for injuries suffered at any time or place; and 2) responded to judicial interpretations of § 205-e by enacting section 3, which, as quoted above, permits suits under statutes regardless of whether they codify a common-law duty or prohibit ...


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