A DISCUSSION OF LAW AND JOURNALISM

Could An Injured NYPD Officer Sue A Wall Street Protester?

By Asher Hawkins

Love ’em or hate ’em, the Occupy Wall Street protests continue to be a source of interesting legal brainteasers. Here’s the latest example:

Ed Mullins, head of the union representing the New York City Police Department’s sergeants, has promised he will see to it that any protester (he prefers the term “professional agitator”) who engages in conduct that causes injury to any of his union’s members will face a lawsuit.

Can a police officer really file a civil suit for injuries sustained in the line of duty? The various news articles that reported on Mr. Mullins’ comments (this is the one from The Wall Street Journal) didn’t answer that question, so we decided to tackle it.

As it happens, New York is one of many states in which police officers currently enjoy the right to sue anyone who injures them while they’re on the job. But the ability to file such lawsuits marks a relatively recent development in American personal-injury jurisprudence, and it’s worth explaining how that transition came about.

The history isn’t a simple one, though the background is easy enough to understand.

Originally, there were two major qualms about permitting public-safety servants to initiate litigation of this sort. The public-policy concern was that allowing wounded-in-action police officers – who generally are entitled to publicly funded benefits when hurt on the job – to also recoup monetary damages via civil suits would mean that they were getting compensated twice.   But this was less persuasive to lawmakers than the common sense-approach:  Police officers know they’re embarking on a potentially dangerous career when they join the force, so why allow them to cash in on risks they’ve signed up for?

Along those lines, here’s a hypothetical. Let’s say yours truly, a hopelessly uncoordinated schlemiel and die-hard Boston Celtics fan, happens upon NBA star Rajon Rondo, who’s hanging out at a public basketball court with nothing better to do as a result of the lockout. I challenge him to a bit of one-on-one, and he graciously accepts. During this (supremely) unlikely showdown, Mr. Rondo unleashes one of his infamous crossovers, resulting in yours truly literally breaking my ankles as I pathetically attempt to play defense.  Now, I might feel like suing Mr. Rondo for laying down such a sick move even though he could have foreseen that doing so would cause me injury. Or I might want to go after the municipal agency that owns the basketball court for allowing an All-Star to shoot around on its property, knowing full well that an injury-prone fan like myself was bound to challenge him to a fateful match-up.

But why should I be able to sue anyone at all when I knew going into the game that even highly skilled ballers are regularly injured?

There’s an important and longstanding concept in personal-injury law (what lawyers typically refer to as “tort” law) called “assumption of risk.” It allows a defendant in a civil suit to avoid liability upon showing that the plaintiff knew the dangers inherent to a situation with a high potential for injury, but decided to throw caution to the wind. Perhaps the most famous articulation of this principle came in 1929 from famed American jurist Benjamin Cardozo, then chief judge on New York’s highest appeals court, in his decision in what law students lovingly refer to as “The Flopper case.” By that time, English judges and legal scholars had for years described the concept using a Latin phrase I won’t bore you with.

The substantive arguments in favor of assumption-of-risk notwithstanding, the doctrine gives judges something for which they’re always grateful: a legal shovel they can use to scoop up frivolous lawsuits and heave them out of court.

By the mid-20th century, rulings by courts in New York and elsewhere had led to the establishment of what came to be regarded as an offshoot of assumption-of-risk: the “fireman’s rule.” Generally speaking, the rule stood for the proposition that firefighters injured while battling blazes were not allowed to sue property owners and occupants whose negligent acts caused those fires in the first place. (New York’s legislature had passed a law in the 1930s allowing firefighters to sue if the person who caused the fire had, in doing so, broken any local or federal law. But New York’s courts made it clear that that was a tough standard to meet, and that the fireman’s rule was effectively the controlling law.)

By the 1970s and 1980s, courts in many states that followed the fireman’s rule began to extend it to apply to police officers hurt in the line of duty, causing the rule to become alternatively known as the “professional rescuers” rule.

The courts didn’t win any popularity awards when this rule was extended to cops; in the mind of the public, the American justice system was already stacked in favor of criminals. Why not give the boys in blue a break? State legislatures soon began considering whether to enact laws that would statutorily override the judge-made legal rule. By 1982, California had enacted such a statute. New York state’s legislature passed its own version in 1989 — a year after the New York Court of Appeals held that the fireman’s rule applied to police officers.

The New York statute expressly allows police officers to sue for injuries “directly or indirectly [resulting from] 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…” This was the same language as was found in the longstanding statute that afforded firefighters the limited right to sue, but the possibility for suit was far greater for cops injured on the job. After all, firemen frequently fight fires caused by people who haven’t broken any laws. But police officers come into contact with lawbreakers on a daily basis, and are thus more likely to wind up suing over injuries sustained in the line of duty and caused by someone breaking a law.

New York’s judges were, to put it lightly, reluctant to open the floodgates. Following enactment of the New York law, they began to read into the statute an unwritten requirement that in order for cops to sue, their injuries had to have resulted from some sort of premises-maintenance violation. Officers who were, for example, injured while wrestling with a suspect who resisted arrest were out of luck.

Not so fast, said the displeased legislature, which, in 1992, responded by inserting the following clarifying language: “the liability imposed pursuant to [this law] 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.”

Some judges began using other tricks in an effort to limit policemen’s on-the-job injury suits, but other judges concluded that the legislature had clearly intended that the men and women who risk their lives protecting the public safety should get their day in court. The legislature stepped in once again. In 1996, it enacted General Obligations Law § 11-106, which gave police officers the right to sue over injuries sustained in the course of duty, full stop. In passing § 11-106, the lawmakers made clear their wish to “ensure once and for all” that the courts recognized their goal of providing “umbrella protection” to police officers hurt on the job as a result of injurious conduct.

Still, § 11-106 contained one important proviso: suits could not be brought against fellow officers or the employing government entity, which means that application of the fireman’s rule to police-plaintiffs is not completely dead in New York. For many cases in which an officer is trying to sue his or her department for on-the-job injuries, the fireman’s rule remains alive and kicking.

Which brings us back to the threats of Mr. Mullins of the NYPD sergeants’ union. Even though New York law is there to back up such rhetoric, instances of cops suing perps are relatively uncommon. Police officers who get hurt on the job generally sue defendants who can actually pay up when on the losing end of a sizable verdict —  it’s not worth the hassle of filing the suit otherwise. When injured officers aren’t suing the cities that employ them, they’re looking for a well-off private defendant, such as an apartment building owner that (allegedly) didn’t do enough to combat drug-dealing in its hallways.

Those occupying Wall Street hardly seem to fit the bill of the “deep pocket” defendant, and Mr. Mullins has indicated that his main goal is not financial gain, but rather to find means of punishing unruly protesters. In the context of personal-injury law, courts are used to claimants who are mostly, if not solely, interested in financial compensation. It would be interesting to see how New York courts might treat an injured-officer personal-injury suit that appeared to amount to an alternative crime-fighting technique.

But here’s hoping it doesn’t come to that.

Comments

4 Comments »

4 Responses

  1. Roger G. says:

    Seriously good article.

  2. great blog, thank you and keep it up!

  3. CB says:

    As an NYPD I was able to successfully sue two different people for vehicle accidents that caused injury to myself. The last one placing me in traction do nearly two years.

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