The opinion of the court was delivered by: David R. Demarest, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Plaintiff, widow of New York State Trooper David Brinkerhoff ("Brinkerhoff"), commenced a civil action asserting four causes of action as a result of Brinkerhoff's work-related death. In response to this motion, Plaintiff has conceded her claims for punitive damages and pain and suffering pursuant to New York GOL §11-106. The Defendants are the St. Lawrence County Probation Department, its Director, a Probation Supervisor, and a Probation Officer. Defendants move for dismissal of the two remaining causes of action for wrongful death premised upon NY GOL§11-106 and NY GML §205-e. Brought as a N.Y.C.P.L.R. §3211 dismissal motion, all allegations in the complaint must be accepted as true.
Brinkerhoff, assigned to the New York State Trooper's Mobile Response Team ("MRT"), was fatally shot on April 25, 2007, while in the line-of-duty as his team was attempting to apprehend fugitive Travis Trim ("Trim"). Brinkerhoff and his MRT unit had been dispatched to a home in Margaretville, New York, to search for Trim who, one day prior, shot New York State Trooper Matt Gombosi ("Gombosi") during a traffic stop. Trim had a criminal history. In August 2005, Trim was convicted of Petit Larceny in Franklin County, New York, and sentenced to three years of probation. Thereafter, his probation supervision was transferred to St. Lawrence County, New York, where he attended college.
It is alleged that while enrolled in college, Trim violated his probation a number of times from early September 2006 to early November 2006. He was arrested for purchasing alcohol for underage friends; issued an appearance ticket for possession of marijuana on or about October 6, 2006; found in possession of alcohol and marijuana on or about November 1, 2006; and, failed to appear for his Probation Department report. Having reported to Trim's college dorm room on three separate occasions as a result of complaints, the campus police forwarded three incident reports to Defendants on November 3, 2006. Trim failed to appear at his previously-scheduled November 3, 2006, probation appointment, and on November 6, 2006, the Defendants learned Trim was no longer living on campus, a violation of the terms of his probation.The St. Lawrence County Probation Department, failing to abide by its own Probation Violation Policies that a memorandum of investigation be provided to the sentencing court within five days of the probation department being notified of an arrest, sent a belated violation package to the jurisdictional court on December 18, 2006. Canton Village Justice Michael Crowe signed a Declaration of Delinquency and issued an arrest warrant on December 29, 2006, which was faxed to the Probation Department on January 2, 2007. Thereafter, Plaintiff alleges the Defendants failed to properly process Trim's arrest warrant since it was neither forwarded to the local police nor input into the Warrant Entry/Registrant System by the Probation Department. It is alleged the fax was shredded or destroyed. It is further alleged these acts caused Brinkerhoff's death since these delays permitted Trim to remain at large for months. During oral argument, Plaintiff's counsel stated he only recently learned Trim had previously been stopped on the Thruway without incident, and had Defendant timely applied for the arrest warrant and properly processed it, Trim could have been successfully taken into custody, without event during that traffic stop. This information, he urges, can and should be developed during discovery.
Defendants seek dismissal of the complaint's first cause of action, citing absence of a wrongful death cause of action in NY GOL §11-106; the absence of a special relationship' upon which to predicate a duty being owed by Defendants to Plaintiff; and the existence of intervening and superseding acts which serve to break any causal link between Defendants' conduct and Brinkerhoff's death. Defendants seek dismissal of the third cause of action for wrongful death under NY GML §205-e upon the basis that no special relationship' exists; the causal link between Defendant's conduct and Brinkerhoff's death is broken by Trim's superseding and intervening criminal conduct; and, Plaintiff has failed to allege adequate predicate statutory violations.
Plaintiff opposes the motion by: disputing her need to prove a special relationship' for purposes of NY GOL §11-106 liability in order to find a duty was owed to Brinkerhoff, since he was not a member of the general public; arguing there is no requirement to show a "special relationship" exists for NY GML §205-e liability; asserting the plain language of NY GOL §11-106 creates a wrongful death cause of action; averring her recitation of 9 N.Y.C.R.R. §§355.3, 347.4, 348.2, 350.5, and 352(1)(a) and (b) constitute adequate predicate statutory violations upon which NY GML §205-e liability may be imposed; noting she has properly pled causation under the directly or indirectly' standard of NY GML §205-e since she need only establish a practical or reasonable' connection between the statutory violation and the injury; and, arguing causation issues are properly left to the fact finder such that it would be improper for the Court to pass upon Defendants' superseding and intervening acts argument.
All parties allege a plain reading of NY GOL §11-106 support their respective positions as to whether a wrongful death cause of action was created. The 1996 statute revived the rights of police officers and firefighters to recover for injuries sustained in the line of duty by abolishing a longstanding common law doctrine called the "Firefighter's Rule"*fn1. The statute reads:
1. In addition to any other right of action or recovery otherwise available under law, whenever any police officer or firefighter suffers any injury, disease or death while in the lawful discharge of his official duties and that injury, disease or death is proximately caused by the neglect, willful omission, or intentional, willful or culpable conduct of any person or entity, other than that police officer's or firefighter's employer or co-employee, the police officer or firefighter suffering that injury or disease, or, in the case of death, a representative of that police officer or firefighter may seek recovery and damages from the person or entity whose neglect, willful omission, or intentional, willful or culpable conduct resulted in that injury, disease or death.
2. Nothing in this section shall be deemed to expand or restrict the existing liability of an employer or co-employee at common-law or under sections two hundred five-a and two hundred five-e of the general municipal law for injuries or death sustained in the line-of-duty by any police officer or firefighter.
Plaintiff relies on the statute's repeated use of the word "death": "whenever any police officer ... suffers any ... death ... and that death is proximately caused ... in the case of death, a representative of that police officer ... may seek recovery and damages..." To this end, Plaintiff urges an expansive reading of the statute to include a wrongful death cause of action.
Also relying on the statute's verbiage by seizing upon the word "representative" and noting the absence of words connoting heirs, Defendant seeks an opposite determination. Namely, it is Defendant's position that this statute only served to reinstate the common law negligence claims to permit recovery of pain and suffering damages. Differentiating between personal injury claims and wrongful death, Defendant notes the former is brought in a representative capacity (see EPTL §11-3.1 et. seq.) on behalf of a decedent as a survival claim', thus the statute's use of the word "representative." The latter, a wrongful death cause of action, however, belongs to the decedent's beneficiaries to recover for their own pecuniary loss, and thus brought in their individual capacity. On this point, Defendant argues that the statute's failure to reference either NY EPTL §5-4.1 which creates a statutory cause of action for wrongful death claims or to include language of "spouse," "children," "parents" and "brothers and sisters," provides evidence that a wrongful death cause of action was not envisioned by the drafters of NY GOL §11-106. All parties cite to legislative history in support of their respective positions, but no case law is cited to support either position. It is notable, however, that a wrongful death action is not founded upon common law, but rather by statute. Carrick v. Central General Hospital, 51 NY2d 242, 249-250 footnote 2 (1980).
In 1989, the legislature (L. 1989 ch. 346) enacted GML 205-e with the following preamble: "AN ACT to amend the general municipal law, in relation to granting certain police officers or their representatives a cause of action for injury or death. (underline added). Thereafter, in 1992, the legislature (L. 1992 ch. 474) added the words "at any time or place" to subsection 1, expanding the scope of liability, and also added subsection 2 addressing existing statutory "notice of claim" requirements as a condition precedent to commencement of a special proceeding or cause of action. In 1996 (L. 1996 ch. 703) - at the same time the Legislature created GOL §11-106 - the statute was further amended by adding subsection 3. New York GML §205-e specifically provides for monetary recovery by the decedent's surviving heirs, thus creating a wrongful death cause of action:
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 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 an 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, or to pay to the spouse and children, or to pay the parents, or to pay the brothers and sisters, being the surviving heirs-at-law of any deceased person thus having lost his life, a sum of money, in case of injury to person, not less than one thousand dollars, and in the case of death not less than five thousand dollars, such liability to be determined and such sums recovered in an action to be instituted by any person injured or the family or relatives of any person killed as aforesaid, provided, however, that nothing in this section shall be deemed to expand or restrict any right afforded to or limitation imposed upon an employer, an employee or his or her representative by virtue of any provisions of the workers' compensation law.
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.
Review of the 1992 legislative history amending GML 205-e to add the language "at any time or place" explains that the liability imposed by 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 injury or death occurs." L. 1992 ch. 474 §1, Legislative intent.
Moving forward in time to the Legislature's 1996 activities in adding GOL §11-106 and amending GML §205-e, the preamble of Laws 1996, ch. 703 states it is "AN ACT to amend the general municipal law and the general obligations law, in relation to the scope of the cause of action afforded for injuries by police officers or firefighters in the line-of-duty and to compensation for injury or death to police officers or firefighters and their estates." This amendment was required to address the courts' continued restrictive view of §205-e's ...