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Brinkerhoff v. County of St. Lawrence

New York Supreme Court, St. Lawrence County


March 30, 2009

BARBARA BRINKERHOFF, ADMINISTRATOR OF THE ESTATE OF DAVID BRINKERHOFF, DECEASED, PLAINTIFF,
v.
THE COUNTY OF ST. LAWRENCE, THE ST. LAWRENCE COUNTY PROBATION DEPARTMENT, FRANCINE PERETTA, ALLYSON BROWN, AND SAI BRISTOL, DEFENDANTS.

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 scope even in the face of the 1992 amendatory language " at any time or place." The legislative intent related to amending GML §205-e states:

The legislature finds that the nature of modern police work in this state has exposed our police officers to an unprecedented risk of death and physical injury. In view of this fact, chapter 346 of the laws of 1989 gave injured officers and representatives of deceased officers a right of action against individuals found liable for such deaths or injuries.

The legislature concludes that the duties of our state's police officers are performed in a variety of contexts and that the liability imposed pursuant to chapter 346 of the laws of 1989 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.

Since the enactment of chapter 474 of the laws of 1992, our courts have continued to differ on the scope of the remedy afforded by chapter 346 of the laws of 1989. This act is intended to ensure once and for all that section 205-e of the general municipal law is applied by the courts in accordance with its original legislative intent to offer an umbrella of protection for police officers, who, in the course of their many and varied duties, are injured by the negligence of anyone who violates any relevant statute, ordinance, code, rule and/or regulation.

L. 1996 ch. 703 §1 Legislative intent.

Clearly this amendment expands liability from that which was previously, narrowly read by the courts to arise only from premises liability'. Thus, personal injury and wrongful death causes of action are properly premised upon the negligence of anyone violating a relevant statute, ordinance, code, rule and/or regulation.

There exists no legislative intent either immediately preceding or specifically related to creation of GOL §11-106. See L. 1996 ch. 703 §5. Notwithstanding this, Senator Dean Skelos, sponsor of the Senate bill, wrote the Governor's Counsel, Michael Finnegan, on July 19, 1996, thanking him "for the opportunity to comment on the above referenced legislation [S.7303-A] which is now awaiting the Governor's action" and explaining the bill's need. He characterized the proposed GML and GOL amendments as constituting "a comprehensive solution to the issue of tort recovery for police officers....injured in the line-of-duty." Amendment of GML would ensure future application of GML §205-e be consistent with original legislative intent "to provide an umbrella of protection" for police officers injured or killed by a tortfeasor who violates a relevant statute, ordinance, code, rule, regulation or requirement and to restore a police officer's traditional common-law rights "to pursue negligence claims for damages for injuries or death incurred in the line-of-duty, except as to common-law claims against municipal employers." In speaking on the addition of GOL §11-106 to the statutory framework, Senator Skelos stated:

Through the addition of section 11-106 to the General Obligations law, New York will join the growing list of states that have abolished the "firefighter's rule" as a defense to a police or firefighter's common-law cause of action for on-duty injuries. Tortfeasors will no longer escape common-law liability simply because their injured victim happens to be a police officer or firefighter. The public policy of this State, as repeatedly expressed by the Legislature, will thus become law: police officers and firefighters are to recover in tort for their on-duty injuries."

Senator Skelos' Memorandum in Support of the amendments to General Municipal Law §205-a (firefighters) and §205-e (police officers) and the addition of §11-106 to the General Obligations Law addressed each by category. In characterizing the amendments of §205-a and §205-e, he stated "this bill further restores the traditional common-law rights of police officers and firefighters to pursue negligence claims for injuries or death incurred in the line-of-duty, except as to common-law claims against municipal employers." In discussing the applicability of §11-106 and the State's public policy permitting police officers "to recover in tort for their on-duty injuries," Skelos goes on to explain that §11-106 would permit the injured party's employer to continue to assert the firefighter's rule' because of "the current financial plight of the State's municipalities."

Assemblyman Eric Vitaliano, Chairman of the Committee on Governmental Employees, also had occasion to write to Michael Finnegan, Counsel to Governor, on July 19, 1996, urging the Governor's approval of amendments to the General Municipal Law and General Obligations Law in an effort to finally put to rest the public policy of New York since 1989: permitting police officers and firefighters "to sue for injuries sustained in the line of duty caused by the tortious conduct of third-party wrongdoers." He explains the bill as:

"amending 205-e and 205-a of the General Municipal Law [to] ensure[] that police officers and firefighters injured in the course of duty have an unambiguous cause of action where their injuries are caused by the violation of any relative statute, code, rule or regulation...[and] by adding Section 11-106 to the General Obligations Law [to] restore[] the common law right of recovery afforded to every citizen to firefighters and police officers to recover damages proximately caused by the negligence of any entity not a municipal employer."

The Governor's memorandum of the bill's approval, dated October 9, 1996, is consistent with the Senate and Assembly's understandings that GOL §11-106 would permit firefighters and police officers to recover damages for line-of-duty injuries: "Under section 11-106 , firefighters and police officers would be able to recover [damages for injuries caused by negligence in the very situations that create the occasion for their services] from persons other than their employers and co-workers." As to General Municipal Law §205-a and §205-e, the Governor's memorandum states "...firefighters and police officers (and their survivors) are authorized to recover damages for line-of-duty injuries and deaths occur[ring]...as a result of any 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 governments and their departments, divisions and bureaus...." (emphases added).

In light of the foregoing, no wrongful death cause claim may be made under New York GOL §11-106. As set forth in the legislative history and supporting memoranda, the purpose of the statute was to revive a police officer's right to sue for injuries sustained in the line-of-duty caused by the tortious conduct of third-party wrongdoers. Thus, had Plaintiff timely filed a Notice of Claim pursuant to General Municipal Law §50-e and filed the action within the one and one-half year statute of limitations period applicable to decedent's personal injury cause of action (General Municipal Law §50-i), New York GOL §11-106 would have permitted her, as decedent's representative, to pursue a common law negligence cause of action for his pain and suffering, as a survival claim. See NY EPTL §11-3.2(b). Construing the statute in this manner is further supported by the Court of Appeals decision of Giuffrida v. Citibank Corp., 100 NY2d 72 (2003), wherein the Court not only set forth the legislative history surrounding the creation and amendments to both GML §205-a and §205-e, but also noted:

"the lawmakers enacted General Obligations Law §11-106, which largely abolishes the firefighter's rule by giving firefighters and police officers a cause of action in negligence for injuries suffered while in the line of duty (except as to actions against municipal employers and fellow workers) (see L 1996, ch 703, §5)."

Plaintiff is left with a single cause of action, that being one for wrongful death brought pursuant to NY GML §205-e. In Galapo v. City of New York, 95 NY2d 568 (2000), the Court of Appeals reaffirmed the applicability of its earlier holding in Desmond v. City of NY, 88 NY2d 455 (1996), notwithstanding the 1996 legislative amendments of NY GML §205-e and §205-a and GOL §11-106:

Although section 205-e purports to authorize recovery for noncompliance with any' governmental requirement, it is well settled that the statute cannot reasonably be applied literally in accordance with its broad language' (Desmond v. City of New York, supra, 88 NY2d, at 463; see also, Governor's Mem approving L 1996, ch 703, 1996 McKinney's Session Laws of NY at 1936-1937). Rather, as a prerequisite to recovery, a police 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' (see, Desmond v. City of New York, supra, 88 NY2d , at 464; see also, Patrolmen's Benevolent Association Letter in Support, Bill Jacket, L 1989 ch 346 [statute authorizes cause of action based on disregard of a local statute or ordinance']; Sponsor's Mem, Bill Jacket, L 1992, ch 474 [ It was clearly the intent of the Legislature, in enacting General Municipal Law §205-e, that this Section apply to the violation of any statute or other law'])

****

Permitting the recovery of damages by a police officer based on a fellow officer's violation of Procedure 104-1 (k) [of the New York City Police Department Patrol Guide] would...be at odds with the history and purpose of General Municipal Law §205-e. The overriding purpose behind adoption of General Municipal Law §205-e was to ameliorate the effect of the common-law rule that disadvantaged police officers who, unlike members of the general public, were barred from recovery for injuries resulting from risks inherent in their job. The statute was not intended to give police officers greater rights and remedies than those available to the general public...

****

In sum, General Municipal Law §205-e was not intended to allow suits by fellow officers or their survivors for breaches of any and all governmental pronouncements of whatever type' (Desmond v. City of New York, supra, 88 NY2d, at 464).

Galapo at p. 574-576.

In seeking dismissal of this final cause of action, Defendants argue Plaintiff cannot show the Defendants: negligently failed to comply with a requirement found in a "well-developed body of law and regulation," owed Brinkerhoff a special duty, and caused Brinkerhoff's death since his death was the result of Trim's intervening and superseding criminal acts. Plaintiff argues that her citations to 9 N.Y.C.R.R. 355.3; 347.4; 348.2; 350.5; 352(1)(a), (b) constitute "well-developed body of law and regulation," and that she may predicate her GML §205-e cause of action upon violations of the St. Lawrence County Probation Violations Policies all as set forth in her pleadings. Moreover, Plaintiff argues she need not demonstrate the existence of a "special duty" since Brinkerhoff was not a member of the general public and GML §205-e does not impose such a requirement. Lastly, Plaintiff argues that Trim's actions did not constitute a superseding event which severed the causal connection between Brinkerhoff's fatal injuries and Defendant's negligence since Trim's actions were not a new and independent force which was not set in motion by Defendant's own wrongful acts.

The importance of the above-set forth legislative history takes on additional significance while discussing the applicability of GML §205-e to the facts at hand. Of paramount importance is the recognition that the original intent of this particular statute and its several amendments was to legislatively overrule the Court of Appeals' holding in Santangelo v. State of New York, 71 NY2d 393 (1988), which extended the "firefighters' rule" to police officers. The effect, therefore, was to place police officers in the same shoes as any member of the public, such that they would no longer be deprived of their ability to commence negligence claims for their line-of-duty injuries. To accomplish its ends - abolition of an antiquated rule which excepted police officers and firefighters who were injured while acting within the scope of their duties as the only public employees who could not sue their tortfeasors - an expansive reading of the statute is urged. An expansive reading, however, does not mean limitless. The statute permits a cause of action where the police officer is injured or dies as a result of negligent failure 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, bureaus."

Plaintiff cites to multiple sections of 9 N.Y.C.R.R.: Part 347 "Probation Management"; Part 348 "Cash [sic should read Case] Record Management"; Part 350 "Investigations and Reports"; Part 352 "Violations of Probation"; and, Part 355 "Probation Officers as Peace Officers" to support her GML §205-e cause of action. Additionally, Plaintiff alleges Defendants' delay in notifying the sentencing court and jurisdictional court of Trim's arrest within five business days after gathering the facts violated St. Lawrence County's own policies. On this last point, Plaintiff alleges the County's policies qualify as predicates to impose General Municipal Law §205-e liability.Citing to the New York Court of Appeals' decision in Giuffrida v. Citibank, supra., wherein the merits of a firefighter's analogous GML §205-a claim were discussed in the context of a motion to dismiss, the Third Department in Aldrich v. Sampier, 2 AD3d 1101 (2003), set forth the following as elements of a GML §205-e claim: identification of statute or ordinance defendant violated; description of manner in which the police officer was injured; and a proffer of facts creating the inference that the defendant's actions either directly or indirectly caused the police officer's harm.

9 N.Y.C.R.R. §347.4 entitled "Rules" is contained within Part 347 "Probation Management" and sets forth general guidelines for probation departments: organizational chart; job descriptions; planning/maintaining organization and management; planning and evaluating probation programs; recruitment selection and promotion; collaboration with criminal justice and related community services; written statements of policies and procedures; regular staff meetings; employee performance evaluation program; public periodic progress reports on probation operations. 9 N.Y.C.R.R. §348.2 entitled "Rules" is contained within Part 348 "Case Record Management" and sets forth the information which should be contained within the probation case files and file management procedures. 9 N.Y.C.R.R. §350.5 entitled "Investigations and reports, generally" contained within Part 350 "Investigations and Reports" requires probation investigations and reports be impartial and fair; distinguish between fact and professional assessment; and report the source of relevant information. 9 N.Y.C.R.R. §352.1 (a) and (b)entitled "Rules" is contained within Part 352 "Violations of Probation." §352.1 (a) requires each local probation director establish local written procedures governing handling of probation violations and court notification of such. §352.1(b) requires court notification by the probation department within 7 business days upon learning of a criminal conviction or determination of absconder status or significant violation of technical conditions of probation. 9 N.Y.C.R.R. §355.3 entitled "Requirements for policies and procedures for probation officers acting as peace officers" is contained within Part 355. "Probation Officers As Peace Officers" requires each director of probation to create, distribute, and ensure compliance with written policy for probation officers acting as peace officers, the execution of warrants, and the prohibition of use/carry/possession of firearms while on duty without specific written authorization by the director of probation.

The only regulation cited in Plaintiff's complaint which imposes a clear duty is found at 9 N.Y.C.R.R. §352.1(b):

In the absence of court direction, a court shall be notified upon a conviction of crime, absconder status, or a significant violation of technical conditions of probation, within seven business days of the probation department's knowledge of the conviction or determination of absconder status or significant violation.

Similarly, the St. Lawrence County Probation Violation policies require notification within five business days. While there is a real question that the County's own written probation policies constitute part of a "well-developed body of law and regulation" upon which to predicate GML §205-e liability, for the reasons that follow [discussing 9 N.Y.C.R.R. §352.1(b)], Plaintiff's cause of action premised upon either would fail for lack of causation.

The pleading contains a recitation of facts which describes the manner in which Brinkerhoff was injured. The issue to be determined on this motion to dismiss is whether Plaintiff has set forth facts from which it may be inferred that the Defendants' negligence directly or indirectly caused Brinkerhoff's harm. The statute's "directly or indirectly" language has been held to constitute a lesser standard of proof than that of proximate cause:

Proving the defendant's violation was an indirect cause' does not require the same amount of proof as proximate cause in common-law negligence, but requires a practical or reasonable connection between the statutory or regulatory violation and the injury (see Giuffrida v. Citibank Corp., supra at 81).

Aldrich, supra at p. 1103.

The facts in Aldrich (ruling on summary judgment motions) involved a police officer making an unannounced U-turn into moving traffic to pursue a reckless driver. In completing his U-turn, the police officer was hit by a motorist. The police officer commenced a GML §205-e action against the reckless driver as well as the motorist. Finding neither Vehicle and Traffic Law [§1129 following too closely; §1144(a) yield to emergency vehicle] to apply to the motorist, Supreme Court's dismissal of the GML§205-e claim was affirmed. The GML §205-e claim as against the reckless driver was, however, reinstated on appeal. The Third Department found an indirect connection between the reckless driver's statutory violation and the police officer's injuries sufficient to create a jury question regarding sufficiency of the connection':

[his] conviction for reckless driving established a statutory violation. This violation of law led plaintiff, as a police officer, to respond and pursue [him]. While attempting to turn the police vehicle to begin pursuit, the accident occurred."

Aldrich, supra at p. 1103.

In explaining what is intended by "indirect cause," the Court of Appeals has stated:

indirect causation' involves a somewhat less than direct and unimpeded sequence of events resulting in injury. Whereas direct causation' requires that the defendant's conduct be a substantive causative factor (see Nallan v. Helmsley-Spear, Inc., 50 NY2d 507,520 [1980]), an indirect cause' is simply a factor that - though not a primary cause -plays a part in producing the result.

****

the substantial case law that has developed on the subject holds that a plaintiff need only establish a practical or reasonable connection' between the statutory or regulatory violation and the claimed injury (see Mullen v. Zoebe, Inc., 86 NY2d 135,140 [1995]; Zanghi, 85 NY2d at 441).

Giuffrida, supra. at pp. 80-81.

There is no view of the facts of this case that would serve to establish Defendants' failure to obey 9 N.Y.C.R.R. §352.1(b) or county probation policies constituted an indirect cause' of Brinkerhoff's injuries. While it is true that delay of the arrest warrant may have permitted Trim to remain at large for several months, it was Trim's criminal act in shooting Trooper Gombosi that brought Brinkerhoff and his MRT unit - prepared to confront Trim who was then-known to be armed and violent - to the home in Margaretville, New York. Defendant's delay in seeking an arrest warrant beyond 7 business days (or, according to written County policies, 5 business days) of it having ascertained knowledge of Trim's significant violation of his probation conditions, was not a factor which indirectly produced this tragic result. Unable to plead this causative element, Plaintiff's GML §205-e cause of action fails and is properly dismissed.

Having dismissed Plaintiff's remaining two wrongful death causes of action on other grounds, it is unnecessary for the Court to address whether a special duty' must be shown in order to premise a tort action upon negligent discharge of ministerial duties against a governmental entity (and its employees) under either a GML §205-e or GOL §11-106 cause of action. It is noted, however, that while neither GML §205-e's language nor the cases analyzing GML §205-e and §205-a claims engage in a discussion of special relationship', Defendants suggest the courts' lack of such discussion resulted from the cases involving an employer/employee relationship, making "[t]he special relationship' a given." It is important to note the legislative history surrounding the enactment of and amendments to GOL §11-106 and GML §§205-e, 205-a was for the express purpose of abolishing the firefighter's rule by giving firefighters and police officers a cause of action in negligence for injuries suffered while in the line of duty. Nothing in the legislative history - which was intended to, once and for all, fix the disparity in treatment amongst public employees - would appear to have intended to give police officers and firefighters rights greater than the public at large. It would appear, then, that the special duty' inquiry would be applicable to either claim.Defendant's motion is granted and the complaint is dismissed.

SO ORDERED

DAVID DEMAREST, J.S.C.

{Decision & Order, and moving papers filed}


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