Steven Marron, Plaintiff, v. Mary Shero, et al., Defendants.

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Supreme Court, Appellate Division, First Department, New York.

Kevin FLYNN, et al., Plaintiffs-Respondents, Steven Marron, Plaintiff, v. The CITY OF NEW YORK, Defendant-Appellant, Mary Shero, et al., Defendants.

Decided: July 22, 1999

BETTY WEINBERG ELLERIN, P.J., JOSEPH P. SULLIVAN, RICHARD W. WALLACH and ISRAEL RUBIN, JJ. Jane L. Gordon, of counsel (Barry P. Schwartz, on the brief, Michael D. Hess, Corporation Counsel of the City of New York, attorney), for defendant-appellant. Patrick M. Connors, of counsel (Malachy J. Duffy, P.C., and Hancock & Estabrook, L.L.P., attorneys), Garden City, for plaintiff-respondent Kevin Flynn.

Plaintiffs-respondents, both of whom were police officers at the time, suffered line-of-duty injuries during a riot in Tompkins Square Park, in Manhattan, that erupted on May 1, 1990 in the final hours of a four-day festival and concert sponsored by the Tompkins Square Cultural Arts Committee.   Although intermittently promoted by a group with a radical political bent, calling itself “Resist to Exist”, the concert and festival had taken place without incident until the events described herein.   The City permits for the event were to expire at 9:00 o'clock that evening.

Plaintiffs, who regularly patrolled the park and had substantial crowd control experience,1 were on duty at the concert along with Deputy Inspector Michael Julian, the commanding officer of their precinct and the officer in charge, and Sergeant Marron, specially selected because he enjoyed good relations with the community.

At about 6:00 p.m., when the crowd had grown to about 200, approximately 75 demonstrators left the park and marched through the surrounding streets and attempted to recruit additional demonstrators, temporarily disrupting traffic.   No arrests were made.   The group returned to the park in about an hour.   At about the same time, someone took the stage microphone and began exhorting the crowd to resist the police.   One Tolia, convicted of inciting to riot for his involvement in the affair, exhorted the crowd to “[b]e prepared to break the law tonight”, “[b]e prepared to resist tonight” and “[b]e prepared to fight tonight.”   Several other speakers, as well, attempted to rally the crowd to take action against the police.   In response, Inspector Julian requested back-up supervisory and patrol personnel, who arrived at 8:30 p.m., 30 minutes before the City permits were to expire.

After the back-up officers arrived, a Department of Parks supervisor asked for a police escort to allow him to shut off the electrical power at the scheduled 9 p.m. conclusion of the event.   The event's organizers had earlier petitioned to extend the permit until 10:00 p.m., but had been refused.   Inspector Julian, with Sergeant Marron and plaintiff Hernandez, accompanied three Department of Parks employees to the stage, where the power switch was located.   Eight additional officers, including plaintiff Flynn, were close behind.   Inspector Julian had ordered plaintiffs and the other officers not to bring any “hats [or] bats”, despite the availability in a police van a few feet from the stage of helmets and batons and other protective gear traditionally used by police in riot situations.

At about that time, a crowd began to gather by the stairs leading to the stage, where the police officers had gathered as a speaker urged them to “stop the police.”   The officers were ordered onto the stage;  some of the crowd began to follow them.   As several officers, including Inspector Julian, attempted to arrest the speaker, a struggle ensued and the crowd began to riot, throwing bottles at the police officers on stage, one of which hit Officer Flynn, knocking him unconscious, as he attempted to handcuff one of the rioters.   Officer Hernandez and Sergeant Marron were also injured.   Officer Flynn, one of the most seriously injured in the melee, was eventually granted an accident disability retirement.

Despite a second disruption, order was restored, although the disturbance continued for most of the evening.   In all, 275 police officers, 11 lieutenants and 35 sergeants responded, necessitating the establishment of a temporary command post.   According to Inspector Julian's official report of the incident, the police officers had successfully used a low-key strategy, employing “non-confrontational dialogue with officers known to park denizens as professional and tolerant” in responding to similar prior events in the park.   The May 1, 1990 incident was, however, a stark departure from past experiences, leading Inspector Julian to conclude that the May 1 melee was premeditated.

Officers Flynn and Hernandez, along with Sergeant Marron, commenced this personal injury action against the City and others, alleging, as against the City, a cause of action for common-law negligence only.   In a pretrial deposition Officer Flynn testified that it was a matter of individual discretion within the Police Department whether to wear a helmet.   Officer Hernandez thought that the commanding officer makes that determination, although he was unable to point to any official regulation or policy in support of his conclusion.   Nor could he remember being ordered not to wear a helmet on the night in question.

After the completion of these depositions, the City, in 1993, moved for summary judgment dismissal of the complaint on the ground that the police officers' claims were barred by the firefighter's rule, enunciated in Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770, and on the further ground that there could be no recovery against the City under common-law negligence for line-of-duty injuries, particularly, where, as here, the injuries were the result of an official exercise of discretion.   Neither Flynn or Hernandez nor Sergeant Marron asserted a claim based on Inspector Julian's order not to wear helmets.   Instead, in opposing the motion, the plaintiff police officers premised their claim on the Inspector's allegedly belated request for additional back-up.   Flynn also argued that additional discovery was required to determine the extent of the advance information available to the Police Department and how that information affected its strategy for handling the event.   Supreme Court (Alice Schlesinger, J.) denied the motion, without prejudice, pending the completion of discovery.

In October 1995, five years after the commencement of this action and after he retained separate counsel, Flynn served a bill of particulars, asserting, for the first time, that the City had violated General Municipal Law § 205-e by allegedly failing to follow the “mandates and requirements” of the Police Department's Patrol Guide 2 and the Department's “temporary and standard operating procedures.”   Flynn further asserted that the City violated the “Disorder Manual”, as well as the Department's “rules and disorder control management provisions” and “other accepted police procedure.” 3  We note at this juncture that this court has held that the assertion of a General Municipal Law § 205-e claim, otherwise time barred, as would be this claim, relates back to the common-law negligence claim originally pleaded.  (See, Simons v. City of New York, 252 A.D.2d 451, 675 N.Y.S.2d 597.)

In 1997, the City again moved for summary judgment, arguing, as it did originally, that plaintiffs could not premise liability on the acts of a fellow officer where, as here, their injuries resulted from that officer's exercise of discretion;  that the defense of the firefighter's rule applied to the common-law claims and, in defense of Flynn's unpleaded General Municipal Law § 205-e claim and in reliance on Desmond v. City of New York, 88 N.Y.2d 455, 646 N.Y.S.2d 492, 669 N.E.2d 472, that internal agency manuals could not support such a cause of action because they do not constitute the type of well developed body of law and regulation that are the prerequisite for section 205-e liability.   In opposing the motion, Flynn, for the first time, claimed that Inspector Julian ordered him not to use his helmet and baton in violation of the Patrol Guide and the “Disorder Control Management Manual.”   Hernandez and Sergeant Marron, responding jointly, opposed the motion in an attorney's affirmation citing the City's “negligence in failing to follow proper guidelines for crowd control.”   Their response made no reference to General Municipal Law § 205-e.

The Supreme Court rejected all of the City's arguments and denied the motion as to both Flynn and Hernandez 4 , holding that Flynn could assert both a common-law negligence and General Municipal Law § 205-e claim.   Specifically, as to the relied upon provisions of the Patrol Guide and training manual, the court held that they met section 205-e's predicate as “well developed bodies of law and regulation which impose clear duties.”   The court also invited both Flynn and Hernandez to move for leave to amend the complaint, presumably to assert a General Municipal Law § 205-e claim.   We reverse.

Pursuant to General Municipal Law § 205-e, police officers or their representatives have the right to maintain an action to recover damages for personal injuries or death resulting from another person's negligence in failing to comply with statutory or regulatory requirements.   This section was enacted to ameliorate the harsh effects of the firefighter's rule, applicable to police officers as well (St. Jacques v. New York City, 215 A.D.2d 75, 84, 633 N.Y.S.2d 97, affd. 88 N.Y.2d 920, 646 N.Y.S.2d 787, 669 N.E.2d 1109), which bars recovery against property owners or occupants for their negligence in creating the condition which gave rise to the injury.  (Id.;  Santangelo v. State of New York, supra 71 N.Y.2d, at 397, 526 N.Y.S.2d 812, 521 N.E.2d 770.)

As the Court of Appeals has noted with respect to the applicability of the firefighter's rule, “[T]he determinative factor [in applying the bar of the firefighter's rule] is whether the injury sustained is related to the particular dangers which police officers are expected to assume as part of their duties.”  (Cooper v. City of New York, 81 N.Y.2d 584, 590, 601 N.Y.S.2d 432, 619 N.E.2d 369.)   In Zanghi v. Niagara Frontier Transp. Commn., 85 N.Y.2d 423, 439, 626 N.Y.S.2d 23, 649 N.E.2d 1167, the Court of Appeals was asked to delineate the point at which the requisite relationship exists between the plaintiff's injury and the special hazards facing police officers and firefighters in the performance of their duties.   The court held that the “necessary connection is present where the performance of the police officer's or firefighter's duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury.”  (Id. at 439, 626 N.Y.S.2d 23, 649 N.E.2d 1167.)   In Ruocco v. New York City Transit Auth., a companion case to Zanghi, in which two police officers, intent on responding to another officer in need of assistance, fell while rushing down a flight of stairs that were cracked, worn, uneven, dirty and wet, the court noted that, in such situations, “care and caution * * * are naturally compromised” in the effort to reach and assist the fellow officer.  (Id. at 440, 626 N.Y.S.2d 23, 649 N.E.2d 1167.)   Thus, a police officer may not recover if the “act taken in furtherance of a specific police * * * function exposed the officer to a heightened risk of sustaining the particular injury.”  (Id., at 439, 626 N.Y.S.2d 23, 649 N.E.2d 1167.)

 The facts here present a compelling case for the application of the firefighter's rule.   Both officers knew that the crowd was rioting and were well aware of the dangers presented.  (See, St. Jacques v. City of New York, supra, 215 A.D.2d 75, 81, 633 N.Y.S.2d 97;  Goode v. United Artists E. Theatre Corp. 220 A.D.2d 382, 383, 631 N.Y.S.2d 892.)   This is hardly a case where, as the Court of Appeals noted in Zanghi, a patrolman was injured in the line of duty merely because he or she “happened to be present in a given location, but was not engaged in any specific duty that increased the risk of receiving [the] injury”.  (85 N.Y.2d at 440, 626 N.Y.S.2d 23, 649 N.E.2d 1167.)   Here, as the record undisputably discloses, the plaintiff officers were performing a police function that put them at a heightened risk of injury.

 The Supreme Court, focusing on Inspector Julian's alleged order not to wear a helmet, found that the City was estopped from asserting the firefighter's rule.   That order, based upon the Inspector's professional judgment, may not serve as the basis for the imposition of liability.  (See, Kenavan v. City of New York, 70 N.Y.2d 558, 569, 523 N.Y.S.2d 60, 517 N.E.2d 872.)   In any event, the firefighter's rule is still available as a defense to the negligence of a co-employee or employer.   When the Legislature enacted General Obligations Law § 11-106(1), (L. 1996, ch. 703, § 5), applicable to all actions pending as of October 9, 1996, which partially abrogated the firefighter's rule, it explicitly preserved the defense in cases involving the “neglect, willful omission, or intentional, willful or culpable conduct of * * * [the] police officer's or firefighter's employer or co-employee”.  (See, Simons v City of New York, supra;  Cosgriff v. City of New York, 241 A.D.2d 382, 659 N.Y.S.2d 888, affd. sub nom. Gonzalez v. Iocovello, 93 N.Y.2d 539, 693 N.Y.S.2d 486, 715 N.E.2d 489 [1999].)  Thus, Inspector Julian's order, even if based on “neglect, willful omission or intentional, willful or culpable conduct,” is within the contemplation of the rule and summary judgment in favor of the City dismissing plaintiffs' common-law negligence claim should have been granted.5

 Alternatively, and as already indicated, the professional judgment rule bars plaintiffs' common-law negligence claim premised upon Inspector Julian's order not to wear helmets or carry batons.  (See, e.g., Cooper v. City of New York, supra, 81 N.Y.2d at 592, 601 N.Y.S.2d 432, 619 N.E.2d 369;  McCormack v. City of New York, 80 N.Y.2d 808, 811, 587 N.Y.S.2d 580, 600 N.E.2d 211;  Kenavan v. City of New York, supra, 70 N.Y.2d 558, 523 N.Y.S.2d 60, 517 N.E.2d 872.)   In Kenavan, for instance, while a group of firefighters attempted to extinguish a fire involving an abandoned car, the Captain stood to the side of the vehicle waiving a lantern to warn oncoming traffic.   Unfortunately, heavy smoke from the burning vehicle reduced visibility between the fire operation and the oncoming traffic.   As a result, a firefighter was killed and several others injured when a driver crashed into the rear of the fire engine, which had been pulled past the abandoned car and parked.   The plaintiff had presented expert testimony that “proper fire fighting procedure called for parking the fire truck behind rather than ahead of the burning vehicle and for the erection of ‘fire lines'.”  (Id. at 569, 523 N.Y.S.2d 60, 517 N.E.2d 872.)   In affirming the dismissal of the common-law negligence claim against the City, the Court of Appeals stated:  “[L]iability will not be imposed where the * * * conduct [of the fellow firefighter whose negligence caused the injuries] involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions that, in retrospect[,] show poor judgment, but judgment, nonetheless.”  (Id. at 569, 523 N.Y.S.2d 60, 517 N.E.2d 872.)   With respect to the plaintiffs' challenge to the procedures employed, the Court found that “there was no evidence that these were immutable procedures that must invariably be followed at the scene of a vehicle fire.   Indeed, every witness and every regulation left room for judgment and discretion in these matters, depending on the particular circumstances presented.”  (Id. at 569, 523 N.Y.S.2d 60, 517 N.E.2d 872.)   The positioning of the fire engine, the Court held, was a matter of judgment “within the ambit of ordinary negligence for which no cause of action against a municipality will lie.”  (Id. at 570, 523 N.Y.S.2d 60, 517 N.E.2d 872.)   Here, Inspector Julian's call for a non-confrontational approach successfully used in the past-foregoing the use of helmets and batons-is a classic exercise of discretion, for which the City cannot be held liable.

 While it is true that under General Municipal Law § 205-e liability may be based on a fellow officer's conduct (Gonzalez v. Iocovello, 249 A.D.2d 143, 672 N.Y.S.2d 293, affd. 93 N.Y.2d 539, 693 N.Y.S.2d 486, 715 N.E.2d 489 supra [1999] ), the Police Department's training manual and Patrol Guide provisions cannot serve as the basis of such a claim.   General Municipal Law § 205-e, as this court has recognized, is limited to the negligent noncompliance with the “requirements” of “any” governmental “statutes, ordinances, rules, orders and requirements.”  (Desiderio v. City of New York, 236 A.D.2d 224, 653 N.Y.S.2d 337.)   The Patrol Guide is not a statute or ordinance.   Apparently, the Supreme Court relied on the statutory “any” to bring Patrol Guide and training manual provisions within the scope of the governmental “rules, orders and requirements.”

Without reaching the issue of whether an internal departmental guide or training manual constitutes a governmental rule or requirement within the meaning of General Municipal Law § 205-e, the Court of Appeals has held that section 205-e was not “intended to give police officers a right to sue for breaches of any and all governmental pronouncements of whatever type and regardless of how general or specific those pronouncements might be.”   (Desmond v. City of New York, supra, 88 N.Y.2d at 463-464, 646 N.Y.S.2d 492, 669 N.E.2d 472.)   Rather, the court held that the 1989 enactment of section 205-e was intended to provide police officers with a remedy “ ‘where injury is the result of negligent non-compliance with well-developed bodies of law and regulation’ which ‘impose clear duties'.”  (Id. at 464, 646 N.Y.S.2d 492, 669 N.E.2d 472, quoting Mem of State Executive Dept, reprinted in 1989 McKinney's Session Laws of NY, at 2140, 2141.)

Thus, in enacting General Municipal Law § 205-e, the Legislature did not intend to upset the settled view that the violation of internal agency memoranda or manuals imposing a higher standard of care on a defendant than that imposed by law could not be the basis of liability against governmental entities.  (See, Crosland v. New York City Tr. Auth., 68 N.Y.2d 165, 168-69, 506 N.Y.S.2d 670, 498 N.E.2d 143;  Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 329, 567 N.Y.S.2d 629, 569 N.E.2d 432.)   As this court has noted, “There is absolutely no authority for the proposition that internal agency procedures, no matter how they are prepared, whether compiled into a booklet or not, and whether approved by top command officials or not, somehow become mandatory in nature so that any deviation therefrom subjects the governmental entity in question to civil liability.”  (Pascarella v. City of New York, 146 A.D.2d 61, 70, 538 N.Y.S.2d 815, lv. denied 74 N.Y.2d 610, 546 N.Y.S.2d 554, 545 N.E.2d 868.)

Neither the Patrol Guide nor the training manual constitutes a well-developed body of law and regulation.   They do not even constitute formal rules of the Police Department.  (See, id.)   The Patrol Guide is an internal manual intended solely for members of the Police Department.   It is a compilation of hundreds of pages of guidelines covering every aspect of police life and conduct, including subjects as diverse as personal appearance, financial restrictions, vacation policy, residency requirements and salute courtesies.   The Guide serves as the vehicle by which the Police Department regulates itself.   That, in some circumstances, certain provisions of the Patrol Guide may also affect the public does not undermine its essentially intra-agency character.

Moreover, the utilization of the Patrol Guide and training manual to support a General Municipal § 205-e claim would serve as a powerful disincentive to the promulgation of rules that attempt the laudable goal of imposing a higher standard of conduct for law enforcement officials.   The Second Department has consistently refused to allow the Patrol Guide to serve as a predicate for section 205-e liability.  (See, e.g., Luongo v. City of New York, 240 A.D.2d 712, 659 N.Y.S.2d 100, lv. denied 90 N.Y.2d 812, 666 N.Y.S.2d 100, 688 N.E.2d 1382;  Lawrence v. City of New York, 240 A.D.2d 711, 659 N.Y.S.2d 101, lv. denied 90 N.Y.2d 812, 666 N.Y.S.2d 100, 688 N.E.2d 1382;  see also, Von Ancken v. City of New York, 245 A.D.2d 286, 666 N.Y.S.2d 16 [same result as to Fire Department's “All Units Circular”].)

 Furthermore, section 205-e applies only to those governmental enactments that “impose * * * ‘clear [legal] duties' * * * with positive commands that mandate the performance or nonperformance of specific acts”, rather than a pronouncement that is “nothing more than a guide for the exercise of an officer's professional discretion.”  (Desmond v. City of New York, supra, 88 N.Y.2d, at 464, 465, 646 N.Y.S.2d 492, 669 N.E.2d 472.)

 Nor does a Police Department rule's use of a “mandatory term * * * convert” what is otherwise its “fundamentally discretionary nature” into a “requirement” within the meaning of General Municipal Law § 205-e.  (Id. at 464, 646 N.Y.S.2d 492, 669 N.E.2d 472.)   There, the court held that the Chief of Operations Memo, which “require[d]” an officer to terminate a high-speed vehicle pursuit in cases where the safety risks outweigh the “danger to the community if the suspect is not immediately apprehended,” could not be the basis of General Municipal § 205-e liability because the regulation “makes the ‘required’ action, i.e., termination of the chase, depend on the pursuing officer's individual judgment.”  (Id. at 464, 646 N.Y.S.2d 492, 669 N.E.2d 472.)   Thus, the memo did not, in reality, require any particular action;  nor did it impose a clear legal duty.   The Patrol Guide is, of course, just that-a guideline for the handling of various situations.   It is not a rule, inflexible and to be literally followed irrespective of the particular circumstances of the situation.

Thus, the Supreme Court erred in reading General Regulation 85-5(10) of the Patrol Guide, which provides for the discretionary use of helmets, without reference to the other provisions of the Guide and always interpreting that Regulation so as to require a supervisor to yield to an officer's exercise of discretion as to whether to wear a helmet, even in cases where, as here, a coordinated strategy was at work.   To be effective, the Patrol Guide and training manual must accord police officers and their supervisors flexibility, latitude and discretion in the manner in which they deal with the varying situations confronting them.

Finally, we note that even if the Patrol Guide and training manual provided a basis for General Municipal Law § 205-e liability, plaintiff Flynn decided for himself against wearing a helmet while Officer Hernandez did not recall being directed not to wear one.

Accordingly, the order of the Supreme Court, New York County (Jane Solomon, J.), entered December 12, 1997, denying defendant City of New York's motion for summary judgment dismissing the complaint of plaintiffs Flynn and Hernandez, should be reversed, on the law, without costs or disbursements, and the motion granted.   The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint as against it.

Order, Supreme Court, New York County, entered December 12, 1997, reversed, on the law, without costs or disbursements, and defendant-appellant's motion for summary judgment dismissing the complaint granted.

FOOTNOTES

1.   Three years earlier on the same date in 1987 a similar riot erupted in Tompkins Square Park in which a number of police officers were seriously injured.

2.   General Regulation 85-5 of the Patrol Guide states, in subsection (1), that officers are to “[p]erform all duties as directed by competent authority”, while subsection (10) provides that the use of a “general purpose helmet” is at the officer's “own discretion or when supervisor believes safety is endangered or conditions warrant.”

3.   In a manual entitled “Disorder Control Management”, which the Police Department apparently uses as course material for captains, under the subject, “Police Officers Briefed”, the subjects mentioned are, “Demeanor and actions”, “Tactical plan-Equipment (helmet/baton/plastic shield)”.   In the section headed “General Information Regarding Disorder Response”, of a training manual entitled, “Tactical Guidelines for the Use of the Disorder Control Shield”, it states, “All uniformed members of the service reporting to a formation/staging area near the scene of a disorder should be reminded to have their helmets (with face shield), grey leather gloves, protective vest, heavy duty shoes, and batons available for use.”   The Police Department's “Guidelines for Policing Demonstrations”, while listing the factors that should be considered in planning police strategy, do not specify or dictate that any particular strategy be used.

4.   Supreme Court granted the City summary judgment dismissal as to Sergeant Marron because of his failure to show that his injuries were not the result of the foreseeable risks of his employment.   Additionally, he had failed to point to any specific statute or regulation, the violation of which resulted in his injuries.

5.   While Flynn claims that Inspector Julian's alleged “no hats or bats” order prohibited him from exercising his own discretion, a discretion which is expressly afforded under police procedures, the record does not suggest that Flynn would have elected to wear his helmet.   Indeed, Flynn testified that, on the date of the incident, he chose not to wear a helmet.

SULLIVAN, J.

All concur.