2013-04-12 / Columnists

Sullivan’s Court

Q. My neighbor is a member of the FDNY. He recently told me that firefighters in New York are given extra legal rights for work-related injuries than average citizens. Could this be possible? Nancy

A. No one knows better than firefighters and their loved ones that firefighting is a dangerous -and sadly at times, deadly- profession. However, that does not mean that all injuries should be brushed off as just part of the job. Under the law, injured firefighters have significant legal rights, although that was not always the case in New York State.

At common law, “The Fireman's Rule”, also known as the “Professional Rescuers Rule”, was a restriction on tort actions filed by public safety officers. In general, the rule precluded lawsuits by firefighters, police officers and other first responders from filing lawsuits for injuries that occurred during the course of their duties even in instances of clear negligence by others. The rationale behind the rule was based on the notion that public safety officers willingly assumed the risks inherent in their duties. Since the purpose of the public safety officer is to confront danger, the public should not liable for injuries incurred while the officer is carrying out that function.

New York State followed this common law principle and thus, firefighters were prohibited from bringing a lawsuit for line-of-duty injuries caused by someone’s negligence. The firefighter’s rule had a disastrous impact as firefighters who sustained injuries due to the negligence of third-parties could not be compensated for those injuries. A firefighter could lose his ability to work or could have to endure significant debilitating injuries and would be left with no legal recourse.

In 1935 the New York State Legislature passed General Municipal Law §205-a, which permits firefighters to sue when they are injured as the result of someone’s violation of a statute, rule, or regulation. §205-e affords the same benefits to police officers. Since its passage, the statute has been amended many times. With each amendment, more rights were bestowed upon firefighters and police officers so that they could file lawsuits for on the job injuries. The amendments have swung the pendulum far to the other side, such that now, a defendant may not argue that a firefighter was injured because of his own negligence, or that he assumed the risk of his injury. Such defenses, which ordinarily apply to lawsuits, are not recognized when the fireman or police officer files a lawsuit for injuries sustained while on the job.

In order to prevail in the lawsuit, the firefighter or police officer must show that the defendant violated some federal, state or local law. Provisions from the New York City Administrative Code (including the electrical code, the housing maintenance code, and the building code), the New York State Multiple Dwelling Law, the New York State Vehicle and Traffic Law, OSHA, The Penal Law and Labor Law are frequently cited in these §205-a cases. Often cases involving firefighters and police officers are brought against owners of property where a broken staircase, faulty flooring or other building code violations which lead to firefighters or police officers being injured.

In 1996, the legislature also enacted another statute which afforded firefighters and police officers additional rights, General Obligations Law §11-106. This statute gives firefighters and police officers a cause of action in common law negligence -as opposed to the statutory cause of action afforded under §205- for line of duty injuries. Thus, injured firefighters and police officers now have two potential avenues for recovery from a negligent party.

Given the dangerous job of first responders, the least the law can do is assure them and their family members that they will be able to recover damages should they sustain injuries as a result of someone else’s negligence while they are in the course of carrying out their duties for the safety of the public at large.

You can e-mail your questions for Keith Sullivan to SullivansCourt@gmail.com

Keith Sullivan is a partner with Sullivan & Galleshaw, LLP, an adjunct law professor and a lecturer for the national bar exam. He is also a Deputy Commissioner for the NYS Athletic Commission. Keith can be seen providing legal analysis on various television networks such as FOX News, CNN, HLN, NBC and MSNBC.

Sullivan’s Court provides general legal information only. It is not intended as legal advice and does not create an attorney-client relationship.

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