s a result of a recent high-profile incident where an officer was injured in Manhattan due to the City’s failure to properly maintain a New York City street, we were asked to help explain the rules for maintaining a private action for injuries sustained in the line of duty.

While the PBA believes the decision to sue is personal to each officer, the union discourages one police officer from suing another, particularly in circumstances where the suit will result in acrimony between officers or where an officer’s personal assets will be placed at risk.

Traditionally, a police officer was not able to recover in a private action for injuries suffered in the line of duty. This doctrine was popularly referred to as “the firefighters’ rule” since the original rationale for it — it was later adopted for police officers — was that firemen entering premises were no more than licensees and therefore took property as they found it. Modern justifications for the rule, though inconsistent with most officers’ understanding and belief, are generally based on the notion that officers have voluntarily assumed the risks associated with the job and being injured by another’s negligence was just another risk. Courts have also ruled that as a matter of public policy, officers trained and compensated to confront emergencies and hazards should be prevented from recovering damages for the very situations that create a need for their services.

The New York State Legislature, at the urging of the PBA and other groups, would eventually correct that injustice, granting police officers the right to sue for certain workplace injuries. Through the passage of section 205-e of the General Municipal Law in 1989 and then section 11-106 of the General Obligations Law in 1996, the common law firefighters’ rule was largely abolished.

Section 11-106, the broader of the two statutes, allows an officer to bring a claim for most injuries that occur in the line of duty. However, the law is limited in that it forbids a police officer from making claims against the police officer’s employer or co-employee. Cases under 11-106 are often brought against a building owner or landlord for maintaining a building or parts of a building in a negligent condition, or for the negligence of the driver of another vehicle.

By contrast, Section 205-e creates a statutory cause of action for an officer injured by another person’s failure “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 of any and all of their departments, divisions and bureaus.” The rule has evolved in such a way that recovery is only allowed when injury results from “negligent non-compliance with well developed bodies of law and regulation which impose clear duties.”

However, courts have concluded that department directives do not impose clear legal duties. Courts have found the following rules and regulations not to be “well developed bodies of law” for purposes of bringing a section 205-e claim: provisions of the Patrol Guide; Chief of Operations Procedures; Interim Orders; and Department training manuals or videos, and certain sanitation regulations. In other words, if an officer’s violation of a Patrol Guide provision or other department directive results in another officer’s injury, the injured officer will not be able to recover under section 205-e. Rules found sufficient to support a claim under section 205-e include: violations of the VTL and other traffic laws, penal law, alcohol control laws, and labor laws, as well as certain sections of the Administrative Code.

Another limitation on an officer’s ability to recover is that the event must be an accident. For example, hearing loss sustained by a firearms instructor as a result of prolonged use of inadequate safety equipment was found not to be accidental under 205-e.

One situation that has frequently been disputed in the courts is the common occurrence of an officer being injured by falling on a poorly maintained sidewalk or street. The mid-level appeals courts were initially split on the subject of whether an injured officer could recover. The New York Court of Appeals has put an end to the confusion by ruling that police officers may maintain an action against the City of New York for failing to properly maintain a sidewalk under 205-e; such action is based on City Charter section 2903(b)(2), which places the ultimate duty to direct or effect repairs squarely on the city. However, the city must have had prior written notice of the defect for an officer to prevail in such an action.

In summary, while the firefighters’ rule has been abolished, and an officer’s right to sue for injuries sustained in the LOD, including the right to maintain a suit based on defective streets and sidewalks, is now firmly established, the courts have succeeded in watering down section 205-e by denying police officers the right to sue for violations of departmental rules and procedures that seemingly fall within the statute, but do not meet the judicially-created standard established by the Court of Appeals. If you have any questions about your right to maintain an action for injuries sustained in the line of duty, you may contact the PBA General Counsel’s office.*

* My thanks to David Morris for his assistance in preparing this article.