An FDNY captain has filed suit against the city alleging negligence following an in station accident involving the decon unit.
Captain Frank Sorito was injured on December 10, 2010 when the Decon Shower Unit housed at Engine 160 suddenly moved and pinned him. According to reports he was crushed, suffering numerous lower back fractures.
The decon unit was apparently not chocked and was being serviced at the time. Captain Sorito’s suit includes an allegation that the mechanic was not properly trained, and that the unit was not properly secured.
Most negligence suits by employees against their employer and/or co-workers are prohibited by a principle known as workers compensation exclusivity. In essence, workers compensation benefits are considered to be the “exclusive remedy” for injured workers. New York recognizes an exception when the negligence is associated with the violation of a statute.
General Municipal Law § 205-a states as follows:
1. In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirement of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any fire department injured, or whose life may be lost while in the discharge or performance at any time or place of any duty imposed by the fire commissioner, fire chief or other superior officer of the fire department, or to pay to the wife and children, or to pay to the parents, or to pay to the brothers and sisters, being the surviving heirs-at-law of any deceased person thus having lost his life, a sum of money, in case of injury to person, not less than ten thousand dollars, and in case of death not less than forty thousand dollars, such liability to be determined and such sums recovered in an action to be instituted by any person injured or the family or relatives of any person killed as aforesaid.
2. Notwithstanding any other provision of law, including sections fifty-e and fifty-i of this chapter, section thirty-eight hundred thirteen of the education law, section ten of the court of claims act and the provisions of any general, special or local law or charter requiring as a condition precedent to commencement of an action or special proceeding that a notice of claim be filed or present, every cause of action for the personal injury or wrongful death of a firefighter which was pending on or after January first, nineteen hundred eighty-seven, or which was dismissed on or after January first, nineteen hundred eighty-seven, because this section was not yet effective, or which would have been actionable on or after January first, nineteen hundred eighty-seven had this section been effective is hereby revived and an action thereon may be commenced at any time provided that such action is commenced on or before June thirtieth, two thousand.
3. This section shall be deemed to provide a right of action regardless of whether the injury or death is caused by the violation of a provision which codifies a common-law duty and regardless of whether the injury or death is caused by the violation of a provision prohibiting activities or conditions which increase the dangers already inherent in the work of any officer, member, agent or employee of any fire department.
My guess is that is the basis for the suit. Any of the NY folks want to weigh in? Notable is the recent decision in Weiner v. City of New York that seems to reverse current case law by concluding that exclusivity does apply to bar § 205-a actions against employers.