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A lawsuit pursuant to General Municipal Law §205-e is not available to a police officer injured by a fellow officer acting in the line of duty

A lawsuit pursuant to General Municipal Law §205-e is not available to a police officer injured by a fellow officer acting in the line of duty
Ferriolo v City of New York, 2010 NY Slip Op 02978, Decided on April 13, 2010, Appellate Division, First Department

Police officer Vincenzo Ferriolo was in his precinct?s locker room when a fellow police officer, Gian, accidentally discharged weapon, shattering Ferriolo?s femur. Gian was in the process of moving his gun from his locker to a storage locker for inventory purpose while Ferriolo was engaged in donning his uniform before beginning his tour of duty and conversing with another officer.

The Appellate Division ruled that Ferriolo?s common-law negligence claim, filed pursuant to General Municipal Law §205-e* was barred by the "firefighter rule" because his exposure to the risk of injury ?was occasioned by the performance of police duties by his fellow officer.? Gian was engaged in performing an official duty: handling his weapon for inventory purposes when it discharged.

In addition, said the court, Ferriolo failed to come forward with compelling evidence that Gian's conduct was criminally negligent or criminally reckless so as to overcome the presumption that the Penal Law had not been violated.

* §205-e of the General Municipal Law provides, in pertinent part, that, in addition to any other right of action, the injured police officer may sue where the injury is caused, directly or indirectly, by ?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?.? Bring such an action does not expand or restrict any right otherwise available under the workers' compensation law. Further, this section provides a right of action regardless of whether the injury ?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.?

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2010/2010_02978.htm

Full post as published by New York Public Personnel Law on April 14, 2010 (boomark / email).