Matter of Kelly v DiNapoli
Court of Appeals
February 13, 2018
2018 NY Slip Op 01016 [30 NY3d 674]
Stein, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2018
v
Thomas P. DiNapoli, as State Comptroller, Respondent.
In the Matter of Pat Sica, Respondent, v Thomas P. DiNapoli, as State Comptroller, Appellant.
Argued January 2, 2018; decided February 13, 2018
Matter of Kelly v DiNapoli, 137 AD3d 1470, affirmed.
Matter of Sica v DiNapoli, 141 AD3d 799, reversed.
Stein, J.
In these appeals, we are asked to determine whether petitioners, both first responders, established entitlement to accidental disability retirement benefits by demonstrating that they were incapacitated “as the natural and proximate result of an accident . . . sustained in . . . service” (
I.
Matter of Kelly
James J. Kelly was a Town of Orangetown police officer who was on duty when Hurricane Sandy struck the area. After he was directed by his supervisor to take cover and respond only to life-threatening calls, Kelly and
Kelly called the fire department—to request that the department‘s technical response unit perform the actual rescue—and sought ambulances and additional police personnel. Given the extreme conditions created by the hurricane, Kelly estimated that it would take approximately two hours for the technical response unit to arrive, and other officers were instructed not to respond. Therefore, he entered the unstable building in response to “blood-curdling screams” for help.
Upon entering the structure, Kelly saw that a resident “had been impaled and put through the floor into the basement.”
Following a hearing on Kelly‘s application for accidental disability retirement benefits based upon the injuries he sustained during the rescue, a Hearing Officer determined that the injury-causing incident was an “accident” within the meaning of
Kelly then commenced this
Petitioner appealed to this Court as of right.
Matter of Sica
Pat Sica, a firefighter with the City of Yonkers, was injured when responding to a medical emergency—a 911 call indicating that an individual was having difficulty breathing at a local supermarket. Sica and his other crew members found two unconscious individuals, one inside and one outside a walk-in freezer. Sica performed cardiopulmonary resuscitation for approximately
Sica applied for accidental disability retirement benefits, claiming that he had suffered permanent injuries as a result of the incident. At the ensuing hearing, Sica acknowledged that his duties as a firefighter included responding to calls requesting emergency medical assistance, and that he had received training in handling chemical spills or leaks, as well as hazardous materials. The Hearing Officer concluded that the incident constituted an “accident,” because “the injury resulted from an unexpected and unforeseeable event, which arose during the performance of [Sica‘s] routine employment duties.” Respondent Comptroller overruled the Hearing Officer‘s
After Sica commenced the instant
This Court granted respondent leave to appeal.
II.
“shall be entitled to an accidental disability retirement allowance if, at the time application therefor is filed, [the member] is . . .
“[p]hysically or mentally incapacitated for performance of duty as the natural and proximate result of an accident not caused by [the member‘s] own willful negligence sustained in such service.”1
This Court first defined “accident” in Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, “adopt[ing] the commonsense definition of a ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’ ” (57 NY2d 1010, 1012 [1982], quoting Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 6 AD2d 97, 100 [1st Dept 1958], affd 7 NY2d 222 [1959]). Stated otherwise, “an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury” (id.). Two years later, the Court clarified in Matter of McCambridge v McGuire that it is “error . . . [to] focus[ ] on the petitioner‘s job assignment, not on the precipitating cause of injury” (62 NY2d 563, 567 [1984]). Rather, a petitioner is
Under Lichtenstein and McCambridge, an injury-causing event is accidental when it is sudden, unexpected and not a risk of the work performed, but the “focus[ ]” of the determination must be on “the precipitating cause of injury,” rather than on “the petitioner‘s job assignment” (McCambridge, 62 NY2d at 567). Thus, in Lichtenstein, the Court upheld the denial of benefits where the petitioner, a police officer, was injured while leaning over the hood of a car to place a traffic ticket on the windshield (see 57 NY2d at 1012; see also Matter of Valentin v Board of Trustees of N.Y. City Employees’ Retirement Sys., 59 NY2d 702 [1983], affg for reasons stated below 91 AD2d 916 [1st Dept 1983] [application denied where sanitation workers sustained disabling injuries while lifting heavy bags and trash cans]; Matter of Schussler v Codd, 59 NY2d 698 [1983] [police officer‘s application denied where loss of hearing resulted from weekly practice sessions on pistol range]; Matter of Menna v New York City Employees’ Retirement Sys., 59 NY2d 696 [1983], affg for reasons stated below 91 AD2d 537 [1st Dept 1982] [application denied where Housing Authority patrolman was injured while placing a spare tire into trunk of patrol car]). In contrast, in McCambridge, the Court held that the petitioners had demonstrated that their injuries were accidental as a matter of law2 where they were injured (1) getting up from a desk when the officer on whom the
Thereafter, applying the principles set forth in McCambridge and Lichtenstein, this Court concluded as a matter of law in Matter of Pratt v Regan that a firefighter “coming down hard upon the other foot in a pothole” after “[c]atching a heel on a running board and thus losing balance” was not only “sudden” but also an “unexpected event” because it was not “a risk of the work performed” (68 NY2d 746, 747-748 [1986]; see Matter of Pastalove v Kelly, 120 AD3d 419, 420-421 [1st Dept 2014]; Matter of Sullivan v Regan, 133 AD2d 993, 994 [3d Dept 1987]). In contrast, even when an incident “constituted a sudden, inopportune, fortuitous mischance,” we upheld a denial of benefits on the ground that the “event . . . was a risk inherent in [the] petitioner‘s regular duties” and, therefore, could not be deemed “unexpected” (Matter of Hambel v Regan, 174 AD2d 891, 892-893 [3d Dept 1991], affd for reasons stated below 78 NY2d 1092 [1991] [siren sounding when officer was only 60 feet from it was sudden but not unexpected; rather it was a risk inherent in the officer‘s regular duties]; see also Matter of Kehoe v City of New York, 81 NY2d 815, 817 [1993] [upholding a denial of benefits because “(n)o evidence was presented refuting respondent(‘s) . . . claim that petitioner‘s injuries resulted solely from the performance of his usual duties as a sanitation worker“]). Similarly, in Matter of Starnella v Bratton (92 NY2d 836 [1998]), this Court concluded, as a matter of law, that a slip and fall on water in a bathroom constituted an accident because it was “no less a sudden and unexpected event” than the “slip[ ] and fall[ ] on wet pavement on a rainy day” at issue in McCambridge; however, the Court held that “[a] fall down the stairs as a result of one‘s own misstep, without more, is not so out-of-the-ordinary or unexpected as to constitute an accidental injury as a matter of law” (id. at 839; see Matter of Kenny v DiNapoli, 11 NY3d 873, 874 [2008]; Matter of Lassen v Hevesi, 9 AD3d 780, 781 [3d Dept 2004]; cf. Matter of Balduzzi v McCall, 220 AD2d 796, 797 [3d Dept 1995]). Critically, the Court reemphasized in Starnella that the dispositive question is whether injury was caused by ” ‘a precipitating accidental event . . . which was not a risk of the work performed’ ” (id. at 839, quoting McCambridge, 62 NY2d at 568 [emphasis added]).
III.
Continuing to apply the principles first set forth in McCambridge and Lichtenstein—and reiterated in our subsequent cases—we conclude that substantial evidence supports respondent‘s determinations that neither petitioner in the cases before us was injured as the result of an “accident” because there were no ” ‘precipitating accidental event[s] . . . which w[ere] not a risk of the work performed’ ” (Starnella, 92 NY2d at 839, quoting McCambridge, 62 NY2d at 568). It is well settled that ” ‘[s]ubstantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably—probatively and logically’ ” (Matter of Yoga Vida NYC, Inc. [Commissioner of Labor], 28 NY3d 1013, 1015 [2016], quoting 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181 [1978]). The standard is not an exacting one; it “is less than a preponderance of the evidence . . . [and] demands only that a given inference is reasonable and plausible, not necessarily the most probable” (Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494, 499 [2011] [internal quotation marks and citations omitted]). Ultimately, “[r]ationality is what is reviewed under . . . the substantial evidence rule” (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). Viewing the records as a whole, respondent‘s determinations that petitioners did not meet their burden of proving that their incapacitation resulted from an accident sustained in service were rational.
In Matter of Sica, the alleged accident was exposure to toxic fumes in the supermarket, leading to a disabling heart condition. Respondent noted that, as a participant in an emergency medical response team, Sica was fulfilling his regular duties as a firefighter in responding to the 911 call. Respondent further found that exposure to toxic chemicals was a risk for which Sica had been trained, that he had responded to a gas leak in the past, and that his job duties specifically required “working with exposure to . . . fumes, explosives, toxic materials, chemicals and corrosives,” the particular risk that caused Sica‘s injury. Inasmuch as it is not unexpected that a firefighter whose job duties required him to respond to emergency medical calls would be exposed to toxic fumes in responding to a call for difficulty breathing, respondent rationally concluded that Sica‘s injuries were the result of a risk inherent in his ordinary duties as a firefighter (see Matter of Huether v Regan, 155 AD2d 860, 861 [3d Dept 1989], lv denied 75 NY2d 705 [1990]).3
Wilson, J. (dissenting in Matter of Kelly, concurring in Matter of Sica).
I concur with the majority in Matter of Sica v DiNapoli. Because the Comptroller‘s determination there was a reasonable exercise of his discretion, Mr. Sica is not entitled to accidental disability benefits. However, I dissent from the court‘s decision in Matter of Kelly v DiNapoli; under any standard, his injury should be deemed accidental. Moreover, the entire statutory scheme concerning accidental and performance of duty disability desperately needs legislative attention. Even a cursory survey of case law reveals gross, inexplicable inconsistencies, largely derived from the law itself. The legislative scheme is difficult to apply in the context of inherently hazardous employment, and the legislative history offers no guidance. The courts have added to the confusion, to the point that it is almost a guessing game when trying to decide how cases will be resolved.
While awaiting legislative action, courts should focus on: (i) whether the nature of the hazard is part of the bargained-for risks of the job and (ii) whether it is truly unexpected and out of the ordinary, or rather is part of the ordinary risks of daily life. If the hazard is outside both of those realms, accidental disability applies. In that regard, it is important to remember
I.
In Sica, I agree with the majority that the Comptroller‘s decision should be reinstated. The case turns on whether Mr. Sica—whose job involves both fighting fires and responding to medical emergencies—was acting as a firefighter or EMS worker, or whether the jobs are, in his case, inseparable. As a firefighter, job-related exposure to toxic fumes is to be expected, and firefighters receive relevant training (Mr. Sica testified as much) and are provided protective gear to don when appropriate. The same may not be true for an EMS worker who is not also a firefighter. The Comptroller‘s determination here—that Mr. Sica‘s training and experience as both a firefighter and EMS worker rendered his injury within the scope of his job, rather than an accident—is a factual determination that requires deference if supported by the record, which it is.
II.
I disagree, however, with the majority‘s decision as to Officer Kelly. While on duty during a hurricane when the police force generally was instructed to shelter in place, Officer Kelly was dispatched to a house partially collapsed by a tree. The tree had killed the father and trapped three family members, including young children, under debris. Consistent with protocol, Officer Kelly called for the fire department, EMS, and ambulances; however, the fire department and ambulances were reported to be two hours distant due to the hurricane. When Officers Kelly and Atchinson arrived, they heard screaming and saw that the house was partially collapsed, with water streaming through the roof. Although rescue in that situation is a job for firefighters, not police, fearing further injury to or death of the family because of the unavailability of the fire department, the officers attempted a rescue. During the rescue, a rafter suddenly gave way. To block it from falling on Officer Atchinson and the trapped girl, Officer Kelly blocked it with his forearm, saving them but permanently disabling himself. Although the Hearing Officer recommended approving his accidental disability request, the Comptroller denied it on the
The Comptroller‘s rationale is unsupportable as a matter of law, because it rests on the proposition that, because police officers have emergency response as part of their jobs, anything that happens to them as part of responding to an emergency is not an “accident.” Instead, to determine whether an occurrence is an accident we ask whether, in the totality of the circumstances and in light of the employee‘s regular job duties, it was a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]). Here, the confluence of factors (hurricane, family trapped in damaged house, unavailability of fire and EMS, beam falling directly on Officer Atchinson and trapped girl) is well within that definition—certainly more so than a police detective getting up from a desk chair and twisting his knee, which we held to be accidental in Matter of McCambridge v McGuire (62 NY2d 563, 567 [1984]).
III.
Precedent offers little help in deciding this case. Although we have instructed courts to apply the above “commonsense” definition of accident, the oft-irreconcilable results seem anything but. A slip on a pool of water in the bathroom or on wet pavement is an accident (see Matter of Starnella v Bratton, 92 NY2d 836, 839 [1998]; McCambridge, 62 NY2d at 567), but a supervisor‘s fall on uneven pavement while searching for a prowler at night is not (see Matter of Fischer v New York State Comptroller, 46 AD3d 1006 [3d Dept 2007]). A trip-and-fall over a tangle of wires in a women‘s locker room while performing a security inspection is an accident (see Matter of Flannelly v Board of Trustees of N.Y. City Police Pension Fund, 278 AD2d 113, 113 [1st Dept 2000]), but a firefighter‘s fall through a hole under a burning mattress is not (see Matter of Purcell v DiNapoli, 81 AD3d 1069, 1070 [3d Dept 2011]).
An officer injured when leaning over a car to place a ticket is not the victim of an accident (see Lichtenstein, 57 NY2d at 1012), but one who stumbles and falls when arising from his desk chair is (see McCambridge, 62 NY2d at 567). Injury to a police officer standing on a ladder to install a heavy bag at the police chief‘s request is accidental, because such work “is more
Potholes have proved particularly precarious (compare Matter of Pratt v Regan, 68 NY2d 746, 747-748 [1986] [“Catching a heel on a running board and thus losing balance may be a risk of the work performed, but coming down hard upon the other foot in a pothole is not. Thus, it was a sudden, unexpected event“], with Matter of Coon v New York State Comptroller, 30 AD3d 884, 885 [3d Dept 2006] [“Stepping into a pothole while directing traffic is clearly a risk of the work performed by police officers” and not accidental],
Much of the problem is due to the structure and history of
IV.
Ideally, the legislature would act to provide some clear rules. Given the legislative scheme as it exists, we ask two questions. First, whether persons in the employee‘s line of work should reasonably expect to face the sort of hazard that injured the petitioner—i.e., was it part of the bargained-for risks of the job? Police officers and firefighters have inherently dangerous jobs, and certain risks are to be expected. A police officer shot by a suspect is not the victim of an accident, nor is one who is injured by a crash in a high-speed car chase, even though we conventionally call the latter an “accident.” Those are risks expected in the nature of the work, and officers contemplate and are compensated for such risks, by way of salary, benefits and performance-of-duty disability. In those cases, accidental disability should not apply. However, some risks must be outside the realm of the ordinary duties of police officers and firefighters, else first responders could never suffer an accident while responding to an emergency.
Second, if the risk is outside the bargained-for risks of the job, we ask whether it is sufficiently out of the ordinary risks of everyday life to constitute an accident. In this regard, the existing case law holds that “[a]n injury occurring as the result of the petitioner‘s own misstep or inattention does not constitute an accident so as to qualify for benefits in accord with the provisions of this law” (Matter of Meyer v New York State Comptroller, 92 AD3d 1122, 1122-1123 [3d Dept 2012]; see also e.g. Matter of Dilello v DiNapoli, 83 AD3d 1361, 1362 [3d Dept 2011]; Matter of Biondi v McCall, 239 AD2d 837, 838 [3d Dept 1997]). Again the case law is full of oddities. In Starnella, we concluded that an on-duty police officer‘s fall down a flight of stairs “as a result of [his] own misstep,” was “not so out-of-the-ordinary or unexpected as to constitute an accidental injury” (Starnella, 92 NY2d at 839), while it has been held that a firefighter whose foot gave way on a slippery substance that blended in with the roadway was injured in an accident, despite the commonplace nature of the incident (see Matter of Sammon v DiNapoli, 97 AD3d 952, 953 [3d Dept 2012]). If these cases are reconcilable, no explanation grounded in policy has been offered for the choices that courts have made. Until the legislature acts to address the standard, the test is whether the event precipitating the injury was so “unexpected, out of the ordinary” (Lichtenstein at 1012) as to constitute an accident.
Taken together, if the hazard falls outside of both the bargained-for risks of the job and everyday risks, the petitioner should be entitled to enhanced accidental benefits. Under this framework, Officer Kelly would receive accidental disability benefits. Applying step one, the hazard was outside of the bargained-for risks of his job.
Turning to step two, the hazard was certainly “out of the ordinary.” In the ordinary course of our lives, we bend over; we rise from chairs; we walk down steps, some of which were previously visited by dogs; but we do not save lives by deflecting
In Matter of Kelly v DiNapoli: Judgment affirmed, with costs.
Chief Judge DiFiore and Judges Rivera, Garcia and Feinman concur. Judge Wilson dissents in an opinion, in which Judge Fahey concurs.
In Matter of Sica v DiNapoli: Judgment reversed, with costs, and petition dismissed.
Chief Judge DiFiore and Judges Rivera, Garcia, Fahey, Wilson and Feinman concur, Judge Wilson in a concurring opinion, in which Judge Fahey concurs.