14 N.Y.2d 76 | NY | 1964
Lead Opinion
The fellow-servant doctrine should not be applied in a case, such as the present, where a New York City police officer, serving in a police car as a " recorder ”, was injured when the car, operated by a fellow officer, collided with another automobile while in pursuit of a third vehicle.
At common law, police officers engaged in police work were regarded not as employees or servants of the municipality but rather as agents performing a public duty and a governmental function. In consequence, the municipality was immune from suit for injuries to third parties caused by negligence on the
Section 50-a recites that ‘ ‘ Every city * * * shall be liable for the negligence of a person duly appointed by the governing board or body of the municipality * * * to operate a municipally owned vehicle within the state in the discharge of a statutory duty imposed upon the municipality, provided the appointee at the time of the accident or injury was acting in the discharge of his duties and within the scope of his employment ” and, then, in order to emphasize the city’s liability even for the negligent operation of vehicles by those who had been regarded as governmental officers or agents rather than as servants or employees, the statute goes on to provide that “Every * * * appointee shall, for the purpose of this section, be deemed an employee of the municipality, notwithstanding the vehicle was being operated in the discharge of a public duty for the benefit of all citizens of the community and the municipality derived no special benefit in its corporate capacity.” And section 50-b, dealing with the same subject, declares that the city shall be liable and shall assume the liability for the negligence of the person operating the vehicle.
As indicated, the purpose of the statute is to impose liability upon the city for the negligent operation of vehicles by police and other municipal officers and thereby overcome the hardship visited upon those who, injured by such negligence, would otherwise be without remedy. There is no reason for not extending the relief thus afforded private persons to the police driver’s fellow officers as well. Had the Legislature intended to exclude them from the statute’s coverage, it could easily have so provided. It chose, instead, to denominate as an employee of the municipality solely the person operating the vehicle “ in the discharge of a statutory duty ”.
The inherent injustice of a rule which denies a person, free of fault, the right to recover for injuries sustained through the negligence of another over whose conduct he has no control merely because of the fortuitous circumstance that the other is a fellow officer is manifest. Dean Prosser has characterized the fellow-servant rule as “wicked” (Prosser, Torts [2d ed., 1955], p. 383) and one court has described it as resulting in “ gross injustice ” and as “ callous to human rights ”. (Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27, 47.) This may well suggest the desirability of abolishing the rule but we leave decision of that question to the future. It is sufficient at this time to decide only that we should not extend it into an area in which it has not previously been applied.
The judgment appealed from should be reversed, with costs in this court and in the Appellate Division, and that of the Trial Term reinstated.
. As to the city’s further contention that it was entitled to show, in mitigation of damages, the amount of pension received by the plaintiff following his retirement for accident disability, see Cady v. City of New York (19 A D 2d 822, affd. 14 N Y 2d 660).
Dissenting Opinion
(dissenting). The fellow-servant rule is antiquated and should, perhaps, be abolished, but unless it is eliminated I find no escape from the decision by the Appellate Division in applying it to the facts of this case. We should not, in this instance, endeavor to escape the effect of a rule which may be obsolete by reviving another which has been superseded, viz., that a police officer is not an employee of a municipality but is an independent public officer not subject to the rule of respondeat superior. That theory was abandoned with the waiver of immunity by the adoption of section 12-a (now § 8) of the Court of Claims Act (Bernardine v. City of New York, 294 N. Y. 361), and since then municipalities have been repeatedly held liable on a master and servant basis for every variety of negligence by its policemen — a result that could only have been reached on the basis that policemen are employees of the municipality. On that basis, and no other, “ Municipalities have been held liable to a bystander negligently shot by a policeman engaged in an altercation with another (Wilkes v. City of New York, 308 N. Y. 726); to a taxicab driver shot by a passenger negligently placed in his cab by policemen (Lubelfeld v. City of New York, 4 N Y 2d 455); to the estate of an arrested man who died from pneumonia caused by exposure in the jail and failure to treat a fractured hip and elbow (Dunham v. Village of Canisteo, 303 N. Y. 498); to the estate of a man negligently shot by a policeman for making a disturbance while intoxicated (Flamer v. City of Yonkers, 309 N. Y. 114); to the estate of a man arrested for public intoxication who died from cerebral hemorrhage in consequence of failure of the police to procure medical aid (O’Grady v. City of Fulton, 4 N Y 2d 717); to a wife shot by her husband to whom the police had negligently returned a pistol (Benway v. City of Watertown, 1 A D 2d 465); and to a bystander injured while directing traffic at the instance of a police officer (Adamo v. P. G. Motor Freight, 4 A D 2d 758). In McCrink v. City of New York (296 N. Y. 99) a city was held liable for negligently having omitted to discharge a police officer by whom plaintiff’s intestate was shot. In Meistinsky v. City of New York (309 N. Y. 998) the estate of a hold-up victim recovered who had been killed by an untrained officer’s bullets.” (Schuster v. City of New York, 5 N Y 2d 75, 81-82.)
Chief Judge Desmond and Judges Burke, Scileppi and Bergan concur with Judge Fuld; Judge Van Voorhis dissents in an opinion in which Judge Dye concurs.
Judgment reversed, etc.