A police officer who tripped and fell while pursuing a suspect in a vacant New York City lot is allowed to continue his lawsuit against the city for negligence, the Brooklyn Appellate court ruled.
While on foot pursuit, Sgt. Donald Mulham chased a suspected perpetrator into a vacant city lot. The lot was “strewn with debris such as radios, stereos, and hundreds of red-colored crates,” court documents revealed.
Mulham jumped on a structure “fashioned out of, among other things, wood, sticks, fabrics and crates,” believing that the suspect was hiding underneath. Once he landed, Mulham’s leg went through a piece of plywood, and the injuries he sustained to his shoulder and knee forced him to leave the police force after a stint on disability leave.
It was soon discovered that the unkempt lot was owned by New York City. Mulham filed suit alleging that it was the city’s responsibility to keep the lot free from debris and other obstructions and the city’s negligence in that regard caused Mulham’s injuries. Mulham based his argument on New York’s General Municipal Law, which allows individuals to file suit when there is “negligent compliance” to any other applicable law, rule, or order.
In keeping the vacant lot littered with obstructions, the city, Mulham argued, was negligent in adhering to the New York City Health Code. The section of the code that Mulham rested his claim demands that the owner of a building is responsible for keeping “the premises free from obstructions and nuisances and for keeping…the…lot clean and free from garbage, refuse, rubbish, litter, other offensive matter or accumulation of water.”
In reviewing the suit, a lower Staten Island court ruled against Mulham and dismissed his claim. The lower court agreed with the city that the New York City Health Code was only a “sanitary provision” and did not apply to the General Municipal Law. A panel of four Appellate Division, 2nd Department, justices disagreed.
“[P]rohibitions against littering may be primarily directed toward aesthetic and health considerations,” the court wrote, but “they also serve the purpose of keeping sidewalks and lots free of refuse that may present a tripping hazard.” When crafting the General Municipal Law, the legislature did not intend to carve out exceptions or allow claims to be dismissed because they are based on a “sanitary provision,” the Appellate Division ruled.
The “original legislative intent [was] to provide an umbrella of protection for police officers…who, in the course of their many and varied duties, are injured…by any tortfeasor who violates any relevant statute,” the court wrote, citing legislative memorandum explaining the goal behind the law—any tortfeasor, including the City of New York.
“As the owner of the subject lot, the City failed to demonstrate that the plaintiff's injury was not the result of its alleged neglect of its property,” the court concluded, allowing Mulham to go forward with his suit.
Janet Zaleon, senior counsel in the Law Department said in a statement, "We disagree with the decision, but believe the City will prevail at trial."
Joseph L. Decolator of the Garden City law firm Decolator, Cohen & DiPrisco, LLP, represented Mulham.