Allison Gammons, Respondent,v.City of New York, et al., Appellants.

Brief

N.Y.November 17, 2014

Kings County Clerk’s Index No. 1901/09 Court of Appeals STATE OF NEW YORK ALLISON GAMMONS, Plaintiff-Respondent, against CITY OF NEW YORK and NEW YORK CITY POLICE DEPARTMENT, Defendants-Appellants. >> >> BRIEF FOR AMICUS CURIAE NEW YORK STATE TRIAL LAWYERS ASSOCIATION NEW YORK STATE TRIAL LAWYERS ASSOCIATION ROBERT F. DANZI, Esq. President 132 Nassau Street, 2nd Floor New York, New York 10038 212-344-5890 SULLIVAN PAPAIN BLOCK MCGRATH & CANNAVO P.C. 120 Broadway, 18th Floor New York, New York 10271 212-732-9000 Attorneys for New York State Trial Lawyers Association Of Counsel: Robert F. Danzi Brian J. Shoot Date Completed: May 16, 2014 i Table Of Contents Interest of the Amicus ............................................................................................................. 1 Questions Presented ............................................................................................................... 2 Summary of Argument ............................................................................................................ 4 POINT I THE LEGISLATURE AMENDED GML §§ 205-a AND 205-e FOR THE EXPRESS PURPOSE OF PROVIDING THE STATE’S FIREFIGHTERS AND POLICE OFFICERS WITH “AN UMBRELLA OF PROTECTION” ..................................................................................... 7 POINT II THE LEGISLATURE MOST ASSUREDLY DID NOT INTEND THAT GML §§ 205-a AND 205-e APPLY ONLY WHEN THE PLAINTIFF ALREADY HAD A STATUTORY CAUSE OF ACTION AND THEREFORE DID NOT NEED THE PROTECTION OF GML §§ 205-a AND 205-e ............................................................. 19 POINT III GIVEN THAT VIRTUALLY ALL STATUTORY OR REGULATORY STANDARDS FALL WITHIN THE SPHERE OF SOME GOVERNMENTAL BODY, AGENCY OR OFFICER, SUCH CANNOT BE A DISQUALIFYING FACTOR FOR PURPOSES OF GML §§ 205-a AND 205-e ................................................................................................... 24 Conclusion ............................................................................................................................... 30 ii Table Of Authorities Table Of Cases Bean v. CSX Transp., Inc., 289 F Supp2d 277 [NDNY 2003], aff’d 111 Fed Appx 636 [2d Cir 2004] .......................................................................................................................... 27n Brown v. State, 89 NY2d 172 [1996] ................................................................................................... 26 Coray v. S. Pac. Co., 335 U.S. 520 [1949] ................................................................................................. 28n Desmond v. City of New York, 88 NY2d 455 [1996] ................................................................................................... 10 Elliott v. S.D. Warren Co., 134 F.3d 1 [1st Cir 1998] ........................................................................................ 27n Fuszek v. Royal King Fisheries, Inc., 98 F3d 514 [9th Cir 1996], cert. den., 520 US 1155 [1997] .................................. 28n Galapo v. City of New York, 95 NY2d 568 [2000] ...................................................................................................7n Ganci v. Port Auth. Trans-Hudson Corp., 258 AD2d 386 [1st Dept 1999] ............................................................................. 27n Giuffrida v. Citibank Corp., 100 NY2d 72 [2003] .............................................................................................. 8, 15 Gonzalez v. Iocovello, 93 NY2d 539 [1999] ...................................................................................... 14, 20, 25 Hayes v. City of New York, 169 Misc 2d 170 [Sup Ct 1995], aff’d on op. below, 231 AD2d 402 [1st Dept 1996] ............................................................................................................. 9 iii Jones v. Spentonbush-Red Star Company, 155 F3d 587 [2d Cir 1998] ...................................................................................... 26n Kenavan v. City of New York, 70 N.Y.2d 558 [1987] ................................................................................................... 9 Kramer v. Phoenix Life Ins. Co., 15 NY3d 539 [2010] ................................................................................................... 20 Matter of Alonzo M. v. New York City Dept. of Probation, 72 NY2d 662 [1988] ................................................................................................... 20 Matter of Crucible Materials Corp. v. New York Power Auth., 13 NY3d 223 [2009] ................................................................................................... 20 McDougald v. Garber, 73 NY2d 246 [1989] ................................................................................................... 26 McGovern v. City of New York, 294 AD2d 148 [1st Dept 2002] ............................................................................. 28n Murcdoch v. Niagara Falls Bridge Com’n, 81 AD3d 1456 [4th Dept 2011] ............................................................................ 27n Nostrom v. A.W. Chesterton Co., 15 NY3d 502 [2010] ................................................................................................... 25 People v. Gallina, 66 NY2d 52 [1985] ..................................................................................................... 22 People v. Pymm, 76 NY2d 511 [1991], cert. den., 498 U.S. 1085 [1991] ......................................... 29n Pratico v. Portland Term. Co., 783 F2d 255 [1st Cir 1985] ..................................................................................... 27n Raynor v. Landmark Chrysler, 18 NY3d 48 [2011] ..................................................................................................... 20 iv Ries v. Natl. R.R. Passenger Corp., 960 F2d 1156 [3d Cir 1992] ...................................................................................... 26 Robertson v. Burlington N.R. Co., 32 F3d 408 [9th Cir 1994] ...................................................................................... 27n St. Jacques v. City of New York, 215 AD2d 75 [1st Dept 1995], aff’d on different grounds, 88 NY2d 920 [1996] .................................................................................................................... 10 Santangelo v. State of New York, 71 NY2d 393 [1988] ..................................................................................................... 8 Schiavone v. City of New York, 92 NY2d 308 [1998] ............................................................................................ 13, 25 Teal v. E.I. DuPont de Nemours and Co., 728 F2d 799 [6th Cir 1984] .................................................................................... 27n Williams v. City of New York, 2 NY3d 352 [2004] ........................................................................................ 17, 21, 25 Statutes And Other Authorities 12 NYCRR § 23-1.1 ............................................................................................................... 25 29 U.S.C. § 653(b)(4) ........................................................................................................... 28n City Charter § 2903 ............................................................................................................... 21 General Municipal Law § 205-a .................................................................................... passim General Municipal Law § 205-e .................................................................................... passim General Obligations Law § 11-106 ...................................................................................... 18 L. 1935, ch. 800, § 2 ................................................................................................................. 8 L. 1936, ch. 251, § 1 ................................................................................................................. 8 v L. 1989, ch. 346 ......................................................................................................................... 8 L. 1992, ch. 474, § 2 ............................................................................................................... 11 L. 1996, ch. 703, § 1 ............................................................................................................... 12 L. 1996, ch. 703, § 4 ............................................................................................................... 11 Labor Law § 27-a ............................................................................................................. passim New York City Traffic Rules and Regulations § 4-02 ...................................................... 25 New York City Traffic Rules and Regulations § 4-06 ...................................................... 25 New York City Traffic Rules and Regulations § 4-07 ...................................................... 25 New York State Constitution, Article 1, § 2 ...................................................................... 24 Vehicle & Traffic Law § 1104(e) ............................................................................. 14, 20, 21 Vehicle & Traffic Law § 1140 .............................................................................................. 25 Vehicle & Traffic Law § 1144(b) ......................................................................................... 25 Vehicle & Traffic Law § 1180 .............................................................................................. 25 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------X ALLISON GAMMONS, Plaintiff-Respondent, -against- CITY OF NEW YORK and NEW YORK CITY POLICE DEPARTMENT, Defendants-Appellants ---------------------------------------------------------------X BRIEF AS AMICUS CURIAE OF THE NEW YORK STATE TRIAL LAWYERS ASSOCIATION Interest of the Amicus The New York State Trial Lawyers Association (“NYSTLA”) is an organization of attorneys who represent plaintiffs in personal injury litigation. Its mission is “to promote a safer and healthier society, to assure access to the civil justice system by those who are wrongfully injured and to advance representation of the public by ethical, well-trained lawyers.” NYSTLA History and Introduction, at https://www.nystla.org/index.cfm?pg=History. NYSTLA has previously appeared as an amicus in this Court. NYSTLA regards this appeal as extremely important to the State’s firefighters and police officers, the plaintiff-classes that the Legislature intended to benefit when it enacted and thereafter amended sections 205-a and 205-e of the General Municipal 2 Law.1 Indeed, were the Court to credit the defendants-appellants’ arguments, those statutes would apply only when their application would make no difference, the ultimate pervasion of the Legislature’s intent. Questions Presented 1. Did the Legislature intend that sections 205-a and 205-e of the General Municipal Law provide the State’s firefighters and police officers with an “umbrella of protection,” or did the Legislature instead intend that those statutes provide nothing more than a “narrow passageway” around the firefighter’s rule? Defendants insist on the latter construction (Defendants-Appellants’ Br. at 32), but the Legislature specifically said that it intended to provide “an umbrella of protection.” See Point I, infra. 2. Should a statute or regulation qualify as a proper predicate for GML § 205-a or 205-e liability only where the predicate provision creates “a private right of action for violation of its terms …”? Defendants argue that GML §§ 205-a and 205-e should be so construed. Defendants-Appellants’ Br. at 17. Yet, such construction would render the 1 The New York State Office of Fire Prevention & Control estimates that the State has 18,500 “career firefighters,” 270 “paid-on-call firefighters,” and 96,063 volunteer firefighters. http://www.dhses.ny.gov/ofpc/documents/fire-resources-list.pdf. The Federal Bureau of Investigation estimates that New York State has 81,795 “Full- time Law Enforcement Employees.” http://www.fbi.gov/about-us/cjis/ucr/crime-in-the- u.s./2011/tables/table_77_full-timelaw_enforcement_employees_by-state_2011.xls. 3 statutes all but meaningless inasmuch as the plaintiff would then have a valid GML 205-a or 205-e cause of action only when he or she already had a cause of action by virtue of some other statute. See Point II, infra. 3. Should a statute or regulation qualify as a GML § 205-a or § 205-e predicate only when the provision in issue arises from a “well developed body of law and regulation” that is not enforced or construed by persons other than judges and juries in personal injury actions? Defendants argue that it is not enough that the predicate statute or regulation arises from a “well developed body of law and regulation,” which is here undisputedly so. As defendants would have it, the provision still cannot qualify as a GML § 205-a or 205-e predicate if some other body or entity — here, the Commissioner of Labor — is vested with “original jurisdiction” to construe or enforce the provision. Defendants-Appellants’ Br. at 32-34. Yet, the same allegedly disqualifying feature would equally apply to virtually every statutory or regulatory standard, from traffic regulations, to Penal Law provisions, to local building codes. If the fact that some other person or agency generally had authority to enforce or construe the provision meant that it could therefore not serve as a GML § 205-a or 205-e predicate, then virtually no provision could serve as a 205-a or 205-e predicate. See Point III, infra. 4 Summary of Argument General Municipal Law §§ 205-a and 205-e, the latter enacted for the protection of the State’s police officers and the former for the protection of the State’s firefighters, provide a statutory cause of action when violation 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” “directly or indirectly” causes a line-of-duty injury. Yet, for literally decades now, the City of New York has done everything within its power to ensure that the word “any” (as in “any of the statutes, ordinances” etc.) was construed as if the Legislature had instead said “hardly any” or “none.” After having previously argued that the statute(s) should apply only to “fire preventive” provisions and/or only to provisions concerning premises standards and/or only to provisions that do not codify common law duties (see pages 13 to 16, infra), the City advances two newly invented caveats that take the proverbial cake. As the City would now have it, a regulation or statute cannot qualify as a GML 205-a or 205-e predicate unless the Legislature intended when enacting the predicate provision that the provision provide a stand-alone cause of action. The City additionally argues that a statute or regulation cannot serve as a 205-a or 205-e predicate if someone other than a civil jury — here, the Commissioner of Labor — was vested with authority to construe or enforce the predicate standard. 5 Yet, adoption of the City’s first new caveat would of itself ensure that GML §§ 205-a and 205-e would apply only when the plaintiff already had a statutory cause without GML §§ 205-a and 205-e. Adoption of the City’s second new caveat would render the set of qualifying predicates a null set since every governmental standard of care — from traffic regulations to building codes — is generally within the purview of someone (e.g., building inspectors, traffic enforcement agents, traffic courts, etc.). NYSTLA submits that such is not what the statutes say, nor what the Legislature intended. NYSTLA further submits that the City’s entire argument rests upon, (a) a false history, and, (b) a false issue. Regarding the false issue, the question is not whether the Legislature intended Labor Law § 27-a to serve as a GML § 205-e predicate when it enacted Labor Law § 27-a back in 1980. Plainly, the Legislature did not. GML § 205-e did not even exist in 1980, and one could just as well ask whether the Legislature intended the Vehicle and Traffic Law provisions governing speeding or signaling to serve as GML predicates when it enacted the Vehicle and Traffic Law (to which the answer would also be No, for the same reasons). The real question is what the Legislature intended when it enacted and amended GML §§ 205-a and 205-e. Regarding the false history, while the City lifts a phrase out of context and proclaims that GML § 205-e was intended to provide nothing more than a “narrow passageway” around the firefighter’s rule (Defendants-Appellants’ Br. at 32), that is most assuredly not what the Legislature intended in amending GML §§ 205-a and 6 205-e, nor what this Court said that the Legislature intended. Quite the contrary, as we now demonstrate, the Legislature intended to provide the State’s firefighters and police officers with an “umbrella of protection.” 7 POINT I THE LEGISLATURE AMENDED GML §§ 205-a AND 205-e FOR THE EXPRESS PURPOSE OF PROVIDING THE STATE’S FIREFIGHTERS AND POLICE OFFICERS WITH “AN UMBRELLA OF PROTECTION.” The City’s construction of GML § 205-e ultimately depends upon its representation that the Legislature intended that the statute provide nothing more than a “narrow passageway” around the firefighter’s rule. Defendants-Appellants’ Br. at 32. However, that is exactly what the Legislature did not intend when it amended the statute to its present form. Nor, contrary to what is said in the City’s brief, did this Court ever say that the Legislature intended the current statute provide nothing more than a “narrow passageway” around the firefighter’s rule.2 The history of General Municipal Law §§ 205-a and 205-e has, in large measure, been a history of City-concocted constructions that were sometimes credited by the courts but were ultimately rejected by a Legislature that took pains to 2 Although the City represents that this Court described the statute as a “narrow passageway,” review of the passage from which the City extracts the term “narrow passageway” will show that this Court was then discussing the initial, 1935 version of General Municipal Law § 205-a. The full paragraph from which the City extracts the term “narrow passageway” was as follows: The Legislature opened a narrow passageway around the common-law rule by enacting General Municipal Law § 205-a, affording firefighters and their survivors a statutory cause of action for line-of-duty injuries resulting from negligent noncompliance ‘with the requirements of any [governmental] statutes, ordinances, rules, orders and requirements’ (see, L. 1935, ch. 800, § 2, as amended by L. 1936, ch. 251, § 1; Desmond v. City of New York, supra, 88 N.Y.2d at 462, 646 N.Y.S.2d 492, 669 N.E.2d 472). Galapo v. City of New York, 95 NY2d 568, 573 [2000] (emphasis added). 8 emphasize that it intended General Municipal Law §§ 205-a and 205-e to provide an “umbrella of protection” to the State’s firefighters and police officers. At common law, firefighters were traditionally barred from suing for injuries sustained in the line of duty. See Giuffrida v. Citibank Corp., 100 NY2d 72, 76-77 [2003]. That so-called “firefighter’s rule” was judicially extended in 1988 so as to similarly limit common law suits by police officers. Santangelo v. State of New York, 71 NY2d 393 [1988]. General Municipal Law § 205-a was enacted in 1935. L. 1935, ch. 800, § 2, as amended by L. 1936, ch. 251, § 1. At the time, the firefighter’s rule, barring many common law suits, was in full flower. After the Court of Appeals extended the firefighter’s rule to police officers in 1988, the Legislature responded the following year by providing police officers with the almost identically worded section 205-e of the General Municipal Law. L. 1989, ch. 346. Both statutes appeared to be very broad in scope. After all, each statute said that violation of “any” statute, ordinance, rule, order or requirement could trigger liability if a direct or indirect cause of injury. More than that, inclusion of the phrase “… or of any and all their departments, divisions and bureaus …” seemingly connoted that “all” departmental rules were also included. Yet, the defendants in section 205-a and 205-e actions argued for a host of limitations, often with great success, that could not be found anywhere in the statute. As a frequent defendant in such cases, the City of 9 New York often argued for such limitations, sometimes successfully and sometimes not. The City successfully argued, in Kenavan v. City of New York, 70 N.Y.2d 558, 567-568 [1987], that GML § 205-a was impliedly limited to premises defects. By that construction, “any” statute, ordinance, etc. meant only those that related to premises defects. Another argument urged by the City in Kenavan, one that the Appellate Division credited but that this Court rejected, was that GML § 205-a should be limited to “fire preventive” statutes, ordinances, etc. (id. at 567). The City’s position in Kenavan was that the word “any,” as used in the phrase “any of the statutes, ordinances, rules, orders and requirements,” was shorthand for “only those statutes that related to premises defects and were also intended to prevent fires.” The City successfully argued in Hayes v. City of New York, 169 Misc 2d 170, 172 [Sup Ct 1995], aff’d on op. below, 231 AD2d 402 [1st Dept 1996] that the Legislature had impliedly intended that GML § 205-a apply only to those statutes and regulations that did not codify a duty already owed at common law. So, “any” of the statutes, ordinances, etc. purportedly meant only those statutes and ordinances that imposed new duties that had not existed at common law. Still another argument that succeeded in the Appellate Division was the City’s contention that General Municipal Law §§ 205-a and 205-e were impliedly limited to those statutes and regulations that related to risks that were peculiarly “inherent” to 10 the work of firefighters and police officers, respectively. That argument succeeded in St. Jacques v. City of New York, 215 AD2d 75, 79 [1st Dept 1995], aff’d on different grounds, 88 NY2d 920 [1996]. So, if (as occurred in St. Jacques) a police officer tripped over a defectively maintained sidewalk, the City’s violation of any ordinance relating to sidewalk maintenance would not “count” since the danger created by the City’s negligence was a danger to all passersby and not just police officers. The City successfully argued in Desmond v. City of New York, 88 NY2d 455, 464 [1996] that the statutory reference to “any of the statutes, ordinances, rules …” was impliedly limited to those statutes, ordinances, etc. that arose from “well-developed bodies of law” and regulations that “impose[d] clear duties.” In sum, although the pre-amendment statutes seemed to be written about as broadly as they could have been drafted, the City and other defendants argued, sometimes unsuccessfully but often successfully, that the statutory reference to “any of the statutes, ordinances, [etc.]” really meant only those, statutes, ordinances or rules that, 1) were premises-related (Kenavan); 2) imposed duties not already owed at common law (Hayes); 3) related to risks inherent to firefighting or police work (St. Jacques); 11 4) for General Municipal Law § 205-a, were “fire preventive” (the Appellate Division ruling in Kenavan); and, 5) evolved from “well-developed bodies of law” that imposed “clear duties” (Desmond). The Legislature eventually acted, first in 1992 and again in 1996. In 1992, the Legislature added the words “at any time or place” to General Municipal Law § 205-e, thus indicating that the statute was not limited to premises defects. L. 1992, ch. 474, § 2. In 1996, it added the same words to General Municipal Law § 205-a. L. 1996, ch. 703, § 4. The 1996 bill also gave each statute a new subdivision (3). The new subdivision expressly repudiated two of the restrictive statutory interpretations that had become popular in the courts, stating: 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 already inherent in the work of any officer, member, agent or employee of any fire department. Yet, the point is not merely that the Legislature abrogated various restrictive constructions of the statute, but also that the Legislature used the occasion to expressly say that it intended the statutes to be expansively construed so as to provide 12 an “umbrella” of protection to the firefighters and police officers for whose benefit the statutes were enacted. Thus, the legislative preamble of the 1996 bill pointedly said that the act was intended to assure General Municipal Law § 205-e would now be construed as per the “original” legislative intent to offer “an umbrella of protection for police officers”: 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 (emphasis added). The Sponsor’s July 19, 1996 letter to the Governor similarly said that the purpose of the bill was to “ensure that these statutes are applied in accordance with the original legislative intent to provide an umbrella of protection for police officers and firefighters”: Dear Mr. Finnegan: Thank you for the opportunity to comment on the above referenced legislation which is now awaiting the Governor’s action. This bill is needed to eradicate apparent confusion in the courts regarding the scope of General Municipal Law Sections 205-e and 205-a to ensure that these statutes are applied in accordance with the original legislative intent to provide an 13 umbrella of protection for police officers and firefighters who, in the course of their many and varied duties, are injured or killed by any tortfeasor who violates any relevant statute, ordinance, code, rule, regulation or requirement; * * * Sincerely, Dean G. Skelos Senator -9th District Emphasis added. The Legislature thus made it about as plain as could be that it intended General Municipal Law §§ 205-a and 205-e to be broadly construed for the benefit of firefighters and police officers. Further, while the City of New York opposed the passage of the 1996 bill and thereafter urged the Governor to veto the bill, the Legislature plainly did not agree with the City’s arguments inasmuch as the bill “squeaked by” with margins of 60 to 0 in the Senate and 146 to 0 in the Assembly. In the wake of the 1996 amendment of the statutes, this Court repeatedly acknowledged that, irrespective of the rulings that preceded and precipitated the amendments, the Legislature had now made clear that General Municipal Law §§ 205- a and 205-e were to be construed “expansively” for the benefit of the covered firefighters and police officers. Thus, in Schiavone v. City of New York, 92 NY2d 308 [1998], where the defendant City urged that GML section 205-e should for a variety of reasons not apply to a case in which a police officer was injured by virtue of a fellow officer’s negligent violation 14 of various Vehicle and Traffic Law statutes and traffic regulations, Judge Wesley, speaking for a unanimous Court, wrote that an “expansive interpretation” was “consistent with the over-all goal of this legislation, as demonstrated by the Legislature through its numerous amendments to the statute” (92 NY2d at 317). The Court added: It would be anomalous for this Court to adopt the restrictive interpretation urged by the City when the Legislature has consistently acted to preserve police officers’ rights to sue through amendments to the statute. When the Legislature’s words and actions point out the correct interpretive road to follow, there is no justification for a court of law to follow another path. The Appellate Division therefore erred in reaching a conclusion that conflicts with the language and intent of section 205-e. Id. (Emphasis added.) The Court made much the same point in Gonzalez v. Iocovello, 93 NY2d 539 [1999]. There, in two cases consolidated for appellate review, the defendant City argued that “fellow officer lawsuits are not authorized under General Municipal Law § 205-e” (93 NY2d at 546-547), that Vehicle and Traffic Law § 1104(e) (requiring police officers not to drive recklessly) was not sufficiently “particularized” to serve as a predicate for GML § 205-e liability (93 NY2d at 551), and that the same was true of certain City ordinances that required the City to maintain its sidewalks in safe repair (93 NY2d at 552). In rejecting all of those arguments, Judge Bellacosa, who was writing for a unanimous bench, reviewed the history of the statute at some length, in 15 the process noting that it was now clear that the Legislature meant the statute to be construed “expansively”: General Municipal Law § 205-e was initially enacted to overrule this Court's extension of the Firefighter’s Rule to police officers (see, Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770; L. 1989, ch. 346, Sponsor’s Mem in Support, 1989 N.Y. Legis Ann., at 180; Governor’s Mem approving L. 1989, ch. 346, 1989 N.Y. Legis Ann., at 182). The statute has been amended several times since its passage ten years ago (see, L. 1990, ch. 762; L. 1992, ch. 474; L. 1994, ch. 664; L. 1996, ch. 703). The successive amendments, for the most part, have been in response to restrictive judicial interpretations of the statute and varying factual circumstances. Each enactment has been promoted as being for the express purpose of clarifying and emphasizing the legislative intent that General Municipal Law § 205-e be applied “expansively” (see, L. 1990, ch. 762; L. 1992, ch. 474; L. 1994, ch. 664; L. 1996, ch. 703). As this Court recently stated in a related context but different circumstance, “an expansive interpretation is consistent with the over-all goal of this legislation, as demonstrated by the Legislature through its numerous amendments to the statute” (Schiavone v. City of New York, 92 N.Y.2d 308, 317, 680 N.Y.S.2d 445, 703 N.E.2d 256; see also, Ruotolo v. State of New York [Ruotolo II], 83 N.Y.2d 248, 609 N.Y.S.2d 148, 631 N.E.2d 90). 93 NY2d at 548-549 (emphasis added). Thereafter, in Giuffrida v. Citibank Corp., supra, where the case concerned General Municipal Law § 205-a and the defendant argued that its violations of various building code provisions could not be deemed a direct or indirect cause of the plaintiff-firefighter’s injuries, the Court reviewed the history of the statute and of the amendments thereto. In rejecting the defendant’s arguments, the Court, this time per 16 decision by Judge Rosenblatt for a unanimous bench, noted that the Legislature intended the statute so as to provide “a cause of action for firefighters who suffer line-of-duty injuries” caused by “a defendant’s violation of relevant statutes and regulations”: Plaintiff commenced this action against Citibank and others pursuant to General Municipal Law § 205-a. That statute creates a cause of action for firefighters who suffer line-of-duty injuries directly or indirectly caused by a defendant's violation of relevant statutes and regulations. * * * Recognizing this disparate treatment and responding to more recent court decisions that purportedly interpreted General Municipal Law §§ 205-a and 205-e too narrowly, the Legislature acted once again in 1996 (see L. 1996, ch. 703). This legislation, which was meant to “resolve, once and for all, confusion regarding the scope” of the statutory remedies offered to police officers and firefighters (Introducer's Mem in Support, Bill Jacket, L. 1996, ch. 703, at 8), generally accomplished three things. First, it extended to firefighters the same protection police officers enjoyed under the 1992 law by amending General Municipal Law § 205-a to ensure that “[a]ny tortfeasor who violates a statute, rule or ordinance and injures the firefighter, whether he is at a premises or at a toxic waste fire or while responding to a call, will be liable” (Introducer's Mem in Support, Bill Jacket, L 1996, ch 703, at 9). The amendment also made clear that firefighters can sue regardless of whether the alleged violation at issue is of a provision which codifies a common-law duty or prohibits activities that increase the dangers inherent in a firefighter's job (see L. 1996, ch. 703, § 4). Second, besides amending General Municipal Law § 205-e to reflect the same protections newly accorded to firefighters (see L 1996, ch 703, § 2), the Legislature gave police officers a right of 17 action regardless of whether the alleged violator actually owned or controlled the premises where the violation occurred (see id., § 3). Third, 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). * * * The 1996 amendments have been the last substantial ones to date. As the statutory and legislative history make abundantly clear, General Municipal Law § 205-a, as amended, is the culmination of years of legislative efforts generally designed to accomplish two main objectives: mitigate the harshness of the firefighter’s rule by creating a cause of action where none previously existed, and encourage compliance with relevant statutes and ordinances by exposing violators to liability for injuries resulting directly or indirectly from noncompliance. 100 NY2d at 75, 78, 79 (emphasis added). Again, in Williams v. City of New York, 2 NY3d 352, 363-364 [2004], where this Court ruled in two cases consolidated for appellate review that neither plaintiff could assert a valid General Municipal Law § 205-e claim, the Court also noted, admittedly in dictum, that “a series of amendments to section 205-e teaches us that we should apply this provision ‘expansively’ so as to favor recovery by police officers whenever possible” (2 NY3d at 363-364). The proposition is, we think, not debatable. Although there may be room for argument regarding the statutes’ application in an individual case, there can be no 18 doubt at all that both statutes must, per the 1996 amendments and the intent of those amendments, be construed “expansively” so as to provide an “umbrella of protection.” That is what the Legislature said when it amended the statutes in 1996 and that is what this Court said in the aftermath of the 1996 amendments. Put differently, neither the statutes themselves, nor the statutory history, nor this Court’s discussion of the statutes and their history in any way supports the City’s thesis that the Legislature intended the post-1996 statutes to provide nothing more than a “narrow passageway” around the firefighter’s rule. What is more, if that had been the Legislature’s intent, the Legislature could have better achieved that purpose by repealing GML §§ 205-a and 205-e when it enacted General Obligations Law § 11- 106 since it is the latter statute that addresses the firefighter’s rule. 19 POINT II THE LEGISLATURE MOST ASSUREDLY DID NOT INTEND THAT GML §§ 205-a AND 205-e APPLY ONLY WHEN THE PLAINTIFF ALREADY HAD A STATUTORY CAUSE OF ACTION AND THEREFORE DID NOT NEED THE PROTECTION OF GML §§ 205-a AND 205-e. The City argues that, (a) neither PESHA (Labor Law § 27-a) nor OSHA itself provides “a private right of action for violation of its terms,” and, (b) PESHA “therefore cannot form the basis for the City’s liability” under GML § 205-e. Defendants-Appellants’ Br. at 17, emphasis added. NYSTLA does not dispute the premise. PESHA does not provide “a private right of action for violation of its terms.” It is the conclusion that has no basis in law or logic. First, if the Legislature had wanted to limit application of GML §§ 205-a and 205-e to those provisions that provide “a private right of action,” it could hardly have chosen language more unsuited for that purpose, i.e., “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, division and bureaus [emphasis added].” As for the City’s answer that the statute cannot be applied “literally” (Defendants-Appellants’ Br. at 29), there is, we think, a difference between not applying a statute literally and flat-out ignoring what the statute actually says. Although the City argues otherwise, the language of a statute is, at some level, 20 supposed to matter. E.g., Kramer v. Phoenix Life Ins. Co., 15 NY3d 539, 550 [2010], quoting Matter of Crucible Materials Corp. v. New York Power Auth., 13 NY3d 223, 229 [2009] (“[t]he ‘starting point’ for discerning statutory meaning is, of course, the language of the statute itself … ‘[W]here the language of a statute is clear and unambiguous, courts must give effect to its plain meaning’”). This principle equally applies to proposed caveats and qualifications that simply do not exist in the statutory language. Raynor v. Landmark Chrysler, 18 NY3d 48, 56 [2011], quoting Matter of Alonzo M. v. New York City Dept. of Probation, 72 NY2d 662, 665 [1988] (“[w]here a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded”). Here, there is absolutely nothing in the statute or even in the statutory history that in any way conveys that the Legislature intended the phrase “any of the statutes, ordinances, rules,” etc. to mean “only those statutes that create private rights of action,” a construction that would, amongst other absurdities, effectively remove the words “ordinances,” “rules” and “orders” since nothing less than a statute could create a “private right of action.” Second, very few statutes create “private rights of actions” and this Court has already deemed laws that did not do so to be viable GML § 205-a or 205-e predicates. In Gonzalez v. Iocovello, supra, for example, the Court held over the City’s protest that Vehicle & Traffic Law § 1104(e) could serve as a GML § 205-e predicate. VTL § 21 1104(e) does not, of course, create a “private right of action” and was not claimed to do so. It is a provision that applies to certain authorized emergency vehicles and provides that a driver of such a vehicle is not relieved of “the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.” The point, however, was that the statute mandated “a reasonably defined and precedentially developed standard of care” and that, this Court said, was enough (93 NY2d at 551). In Cosgriff v. City of New York, which was decided together with Gonzalez, the issue was whether City Charter § 2903 could serve as a GML § 205-e predicate. That provision was entitled “Powers and duties of the commissioner” and it provided that the Commissioner of Transportation “shall have charge and control of the following functions relating to the construction, maintenance and repair of public roads, streets, highways, parkways, bridges and tunnels: *** (2) designing, constructing and repairing of public roads, streets, highways and parkways.” City Charter § 2903 did not purport to provide a private cause of action, but it was, this Court said, “part of a well- developed body of law” that imposed “a clear legal duty on the City to take appropriate steps to keep the sidewalks in safe repair” (93 NY2d at 553). In Williams v. City of New York, 2 NY3d at 364 [2004], this Court said that plaintiff may predicate her GML § 205-e claim “on alleged violations of the assault, homicide, reckless endangerment and manslaughter provisions of the Penal Law …” Needless to say, none of those provisions purport to create a “private right of action.” 22 Nor could anyone reasonably say that the Legislature criminalized homicide in order to provide police officers or firefighters with a cause of action in the event that someone violated the Penal Law. On the contrary, given that the statutory roots of the Penal provisions concerning homicide pre-date the enactment of GML §§ 205-a and 205-e by many centuries, it is perfectly obvious that the Legislature did not criminalize homicide for the purpose of providing firefighters or police officers with a civil cause of action. But the point, once again, is that the provisions in issue arose from well settled bodies of law that imposed clear legal duties. Thus, the City’s present thesis is inconsistent with GML § 205-e itself and with the pertinent legislative history. The City’s thesis is also inconsistent with Cosgriff, Gonzalez, Williams, and with each and every prior decision involving GML §§ 205-a or 205-e — not one of which held or suggested that a provision must create a private cause of action in order to serve as a GML 205-e or 205-e predicate. Finally, if the statutes were construed such that a provision could serve as a GML § 205-a or 205-e predicate only when the predicate provision itself created a “private cause of action,” GML § 205-a and 205-e would thus be rendered virtual nullities. The only instance in which they would provide a plaintiff with a viable cause of action would be the instance in which the plaintiff already had one. Yet, statutes are not supposed to be construed as nullities. People v. Gallina, 66 NY2d 52, 56 [1985] (“[a] contrary interpretation would render the timeliness requirement a nullity, in violation of accepted canons of statutory construction”). 23 The Court should, accordingly, reject the City’s latest effort to marginalize GML §§ 205-a and 205-e. 24 POINT III GIVEN THAT VIRTUALLY ALL STATUTORY OR REGULATORY STANDARDS FALL WITHIN THE SPHERE OF SOME GOVERNMENTAL BODY, AGENCY OR OFFICER, SUCH CANNOT BE A DISQUALIFYING FACTOR FOR PURPOSES OF GML §§ 205-a AND 205-e. Apart from arguing that the Legislature did not intend when enacting Labor Law § 27-a that such serve as a predicate for GML § 205-a or 205-e liability, the City relatedly argues that “PESHA’s detailed statutory scheme … does not vest courts with plenary original jurisdiction to determine whether a PESHA violation has occurred.” Defendants-Appellants’ Br. at 32. The argument misses the point. Although the City purports not to notice, virtually every regulation or statute that embodies a standard of care that might be pertinent in a personal injury action — from traffic regulations, to penal laws, to local building code requirements — are within the bailiwick of some governmental agency or entity other than juries in civil cases. Building inspectors are charged with determining building code violations. Traffic enforcement agents and traffic courts determine when traffic violations have occurred. Criminal juries typically determine guilt for violations of the laws concerning homicide. More than that, a person charged with a crime “prosecuted by indictment” has a constitutional right to be tried “by a jury composed of twelve persons” (N.Y. St. Const. Art. 1, § 2) — meaning that criminal juries have exclusive jurisdiction over such matters per the State Constitution. Yet, when a personal injury action 25 concerns the same subject matter, all of those kinds of provisions may be germane as establishing the standard of care in a civil case. Even more to the point, this Court has already ruled that all of those kinds of provisions can serve a predicate for liability under GML §§ 205-a or 205-e. Cosgriff v. City of New York, 93 NY2d at 552 (local ordinance concerning sidewalk and street repair); Gonzalez v. Iocovello, 93 NY2d at 551 (VTL § 1104[e]); Williams v. City of New York, 2 NY3d at 366 (penal laws concerning “assault, homicide, reckless endangerment and manslaughter”); Schiavone v. City of New York, 92 NY2d 308 [1998] (VTL §§ 1144(b), 1140, and 1180, as well as sections 4-02, 4-06 and 4-07 of the New York City Traffic Rules and Regulations). What is more, the provision deemed a viable 205-e predicate in Cosgriff (over the City’s objection) was in fact entitled, “Power and duties of the commissioner,” referring to the City’s Commissioner of Transportation. In this context, while the City now argues that only the Commissioner of Labor has “jurisdiction” to determine a PESHA violation and that PESHA therefore cannot serve as a GML 205-e predicate, the argument is logically absurd. The City could just as well argue that only the Commissioner of Labor can determine violations of Industrial Code 23 (12 NYCRR § 23-1.1 et seq.) and that such provisions, which are necessary predicates for liability under Labor Law § 241(6) (Nostrom v. A.W. Chesterton Co., 15 NY3d 502, 507-508 [2010]), cannot serve as Labor Law § 241(6) predicates, with the ultimate consequence that liability can never exist under Labor Law § 241(6). 26 Of course, the City’s fallacy is that it ignores context. Yes, the Commissioner of Labor is vested with authority to enforce PESHA for the purposes of that law. However, the primary purpose of the tort law is to compensate for a wrong visited upon the plaintiff. Brown v. State, 89 NY2d 172, 201 [1996]; McDougald v. Garber, 73 NY2d 246, 253-254 [1989]. And this is a realm in which the Commissioner of Labor has no more authority to determine PESHA violations than a traffic court has authority to pass on the issue of whether the plaintiff-driver was speeding or the defendant-driver ran a red light. The City’s own analogy — to OSHA provisions — nicely reveals the fallacy of its argument. Obviously, OSHA has its own sizable bureaucracy dedicated to enforcement of its regulations, as well as its own administrative tribunals and procedures for contesting violations. The federal courts appear to be split on the effect to be accorded the OSHA standards in the context of a personal injury suit brought under federal law. The majority view is that the trier of fact may regard such a violation as evidence of negligence, or, put differently, may regard the standard itself as some evidence of the conduct that reasonable care dictated in the circumstances.3 3 Ries v. Natl. R.R. Passenger Corp., 960 F2d 1156, 1162, 1164 [3d Cir 1992] (in a personal injury action brought under the Federal Employers’ Liability Act and predicated upon negligence, “Congress did not intend for a violation of an OSHA regulation to result in negligence per se and bar contributory negligence under the FELA,” but “a violation of an OSHA regulation could be admitted as evidence of negligence”); Jones v. Spentonbush-Red Star Company, 155 F3d 587, 595 [2d Cir 1998] (in a personal injury action under the Jones Act and general maritime law, “OSHA is simply evidence of the standard of care, the violation of which may be accepted or rejected as proof of negligence by the trier of fact according to the 27 Such is also the effect such violations have traditionally been accorded under New York common law.4 The minority view is that an OSHA violation should be deemed negligence per se,5 as is the case under federal law with some other regulatory sum total of all the evidence”); Robertson v. Burlington N.R. Co., 32 F3d 408, 410 [9th Cir 1994] (“We decline to follow the negligence per se rule of the First Circuit. Instead, we adopt the view of the Third and Fourth Circuits. OSHA standards may be admitted in an FELA case as some evidence of the applicable standard of care”); Bean v. CSX Transp., Inc., 289 F Supp2d 277, 280-283 [NDNY 2003], aff’d 111 Fed Appx 636 [2d Cir 2004] (jury was properly permitted to consider violation of OSHA safety standard as evidence of negligence); see also Elliott v. S.D. Warren Co., 134 F.3d 1, 5 [1st Cir 1998] (“under Maine’s common law the violation of a safety statute is merely evidence of negligence, not negligence per se … by instructing the jury that it might consider a discerned OSHA violation as evidence of Warren’s negligence — no more, no less — the district court gave the jurors proper guidance under the governing law”); Ganci v. Port Auth. Trans-Hudson Corp., 258 AD2d 386, 386 [1st Dept 1999] (“The proposed amendment relating to OSHA should be accepted, an OSHA violation being properly admissible in a FELA action as evidence of negligence”). 4 Murcdoch v. Niagara Falls Bridge Com’n, 81 AD3d 1456, 1457 [4th Dept 2011] (in personal injury action based upon Labor Law § 200 and common law, “the court erred in refusing to instruct the jury that the violation of a regulation promulgated by the Occupational Safety and Health Administration (OSHA) may constitute evidence of negligence”). 5 Pratico v. Portland Term. Co., 783 F2d 255, 262, 265 [1st Cir 1985] (where “[p]laintiff’s suit was brought under FELA, which creates a federal cause of action for railroad employees who have been killed or injured due to the negligence of the railroad,” violation of a pertinent OSHA standard was negligence per se; “[t]he doctrine of negligence per se does not have the effect of turning reasonable, nontortious behavior into unreasonable, tortious behavior. Rather it simply allows the presence of a statutory regulation to serve as irrefutable evidence that particular conduct is unreasonable”); see also Teal v. E.I. DuPont de Nemours and Co., 728 F2d 799, 805 [6th Cir 1984] (in personal injury action premised on diversity jurisdiction, “Tennessee case law establishes that the breach of a duty imposed by regulation is negligence per se if the plaintiff is a member of the class of persons which the regulation was intended to protect … Because Richard Teal is a member of the class of persons that the OSHA regulation was intended to protect, the appellants were entitled to a jury instruction on their negligence per se claim”). 28 standards.6 The dispute turns in part on the perceived impact of a statutory savings clause.7 But the point for present purposes is that no Court has taken the view that OSHA standards — the standards that a government agency has, after study, deemed necessary for safe working conditions — are meaningless outside of their regulatory context. Nor has any court decried that it would subvert Congress’s intent for a jury to consider, for purposes of a personal injury action, whether a defendant violated an OSHA safety standard. And the proof of the pudding is that OSHA provisions have been deemed viable GML § 205-e predicates.8 Indeed, one could just as well argue 6 Coray v. S. Pac. Co., 335 U.S. 520, 522-523 [1949] (in action brought under the Federal Employers’ Liability Act to recover damages for the death of Frank Lucas, an employee of the respendent railroad, railroad’s violation of brakes provisions of the Federal Safety Appliance Act created liability under the FELA); Fuszek v. Royal King Fisheries, Inc., 98 F3d 514, 517 [9th Cir 1996], cert. den., 520 US 1155 [1997] (where defendant violated 46 CFR § 28215 — which required “all exposed machinery on board a vessel to have suitable hand covers” — the ship’s “unexcused violation of a Coast Guard safety regulation that was designed not only to protect members of the class to which Fuszek belonged, but also to prevent the type of injury he sustained” precluded consideration of the plaintiff’s comparative negligence). 7 29 U.S.C. § 653(b)(4) (“Nothing in this chapter shall be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law wit respect to injuries, diseases, or death of employees arising out of, or in the course of, employment”). 8 McGovern v. City of New York, 294 AD2d 148, 149 [1st Dept 2002] (“The OSHA regulations that require protective clothing for a firefighter’s head, body and extremities (29 CFR 1910.156[e][2] and [3]) can serve as a predicate to a claim under GML § 205-a because they are part of a well developed body of law and regulation and they impose a clear legal duty … the duty is no less clear because the City may choose one or the other given method of compliance, i.e., either a fire-restrictive coat with fully extended boots or a fire-resistive coat with protective trousers”). 29 that OSHA’s extensive scheme of regulations should preclude imposition of criminal liability where the predicate violations would also constitute a crime, a proposition that this Court long ago rejected.9 The Commissioner of Labor has jurisdiction to administer and enforce PESHA for purposes of the Labor Law. Juries, supervised by courts, have authority to determine whether PESHA violations have occurred for the purposes of civil litigation — just as with traffic regulations, penal code violations, and building code violations. Were the rule otherwise, GML §§ 205-a and 205-e could just as well be repealed since virtually every regulatory standard falls within someone’s bailiwick for purposes other than civil litigation. Even beyond that, the tort law as we know it would be unmoored from the rest of the world, with juries compelled to pass on matters ranging from reasonable care while driving to reasonable care in building construction without benefit of the host of regulatory standards that should inform those determinations. 9 People v. Pymm, 76 NY2d 511, 519, 521 [1991], cert. den., 498 U.S. 1085 [1991] (where appellants argued “that the Act’s extensive scheme for regulation of occupational health and safety preempts State enforcement of general criminal laws to punish conduct that arises out of an employer’s failure to provide his employees with a safe workplace,” the Court ruled otherwise; “[w]hile OSHA standards are prophylactic measures that are intended to prevent workplace accidents from ever occurring … the criminal laws of this State are triggered only after the commission of certain acts that society as a whole deems unacceptable, wherever they may occur”). 30 Conclusion The order appealed from should be affirmed. Dated: New York, New York May 16, 2014 Respectfully submitted, NEW YORK STATE TRIAL LAWYERS ASSOCIATION ROBERT F. DANZI, Esq., President 132 Nassau Street, 2d Floor New York, New York 10038 (212)344-5890 By: ______________________________ Brian J. Shoot SULLIVAN PAPAIN BLOCK McGRATH & CANNAVO 120 Broadway, 18th Floor New York, New York 10271 (212)732-9000 bshoot@triallaw1.com