Thomas M. Bona, P.C.

Attorneys At Law

Court of Appeals Liberally Applies Right of

Police Officers to Sue for Negligence


As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent decision by the Court of Appeals concerning the right of police officers to sue for negligence.


The dangers and hazards of working as a police officer are obvious and well documented. One of the lesser known areas of negligence law is where police officers are permitted to sue third-parties for negligence for injuries sustained in their work as police officers. General Municipal Law ("GML") Section 205-e contains a cause of action allowing police officers to sue for injuries sustained in the line of duty as a result of any neglect, or failure to comply with the requirements of any statutes, ordinances, rules or orders of a government entity. This statute was adopted by the Legislature to overrule a prior Court of Appeals decision which had barred police officers from maintaining common law negligence actions for injuries sustained in the line of duty. Following the initial enactment of GML Section 205-e, the legislature enacted several amendments which enlarged police officers right to sue under GML Section 205-e.   In order for a police officer to assert a claim under GML Section 205-e, a plaintiff must identify the statute or ordinance with which the defendant failed to comply. A recent case by the Court of Appeals applying statutory and case law illustrates this principal.


In Gammons v. City of New York, a former police officer was injured when she fell from a New York City Police Department flatbed truck while she and fellow officers loaded a truck bed with police crowd control barriers in Brooklyn. Plaintiff sued the City claiming the vehicle was too short for safe barrier transport, and alleged a violation of OSHA as a private cause of action against the City. As a statutory violation predicate, plaintiff relied on Labor Law Section 27-a(3)(a)(1), also known as the Public Employees Safety and Health Act ("PESHA") which provides that every employer shall furnish each of its employees a place of employment free from hazards capable of causing death or serious injury to its employees and which will provide reasonable and adequate protection to its employees. This is often called a "general duty" clause.


The City moved for summary judgment claiming that plaintiff did not meet the requirements of GML Section 205-e in that the statutes that she cited could not form the basis for her cause of action. The Court of Appeals disagreed and affirmed the Appellate Division which denied the City summary judgment. The Court of Appeals rejected the City’s argument that the PESHA did not contain an express cause of action thus barring plaintiff’s suit. The Court of Appeals found that GML Section 205-e does not require that the predicate for a police officer’s cause of action contain an existing right to sue.


The Court of Appeals also rejected the City’s contention that Labor Law Section 27-a could not serve as a predicate because it established a regulatory framework under which the Labor Department enforces violations of the statute. The Court of Appeals found that allowing an officer to sue under the PESHA did not undermine the Labor Department’s role in enforcing workplace safety regulations. The Court of Appeals concluded that based on the Legislator’s mandate that the Courts expansively apply Section 205-e to provide police officers with a right to sue, the PESHA general duty clause serves as an adequate predicate for plaintiff’s GML Section 205-e cause of action.


Clearly, if a suit is brought by a police officer against his employer under GML Section 205-e, it is important to make sure whether a statutory basis exists. When a suit is filed by a police officer against a defendant other than his employer, such as an owner of premises where there is a slip and fall, it is also necessary to check whether there is a statutory predicate for the suit.


Should you have any questions, please call.

Thomas M. Bona