FELIX T. MULLEN, RESPONDENT, ET AL., PLAINTIFF, v. ZOEBE, INC., ET AL.,
DEFENDANTS, LI-VAR REALTY, APPELLANT.
86 N.Y.2d 135, 654 N.E.2d 90, 630 N.Y.S.2d 269
June 29, 1995
2 No. 172 (1995 NY Int. 165)
Decided June 29, 1995
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Nina Cangiano, for Appellant.
Roger P. McTiernan, for Respondent.
City of New York; Uniformed Firefighters' Association et al.; and
Firemen's Association of the State of New York, amici curiae.
LEVINE, J.:
Plaintiff, a uniformed firefighter in the Fire Department of the City
of New York, incurred a serious back injury while responding to a fire
at defendant's two-story building in Rockaway Park, Queens County. The
first floor of the building was occupied by two commercial
establishments and the second floor by illegal single-room
occupancies. The fire was well in progress upon the arrival of
plaintiff's ladder company. An advanced fire was found on the second
floor, blowing out one side of the building and igniting the siding of
the building. Screams were heard of someone trapped on the second
floor. Plaintiff and firefighter Richard Sullivan climbed stairs to
the second floor and attempted to open the door to a room from which
the screams seemed to have emanated. They were unable to force
entrance because the door opened inward and was blocked by furniture.
Sullivan, therefore, hunched over and plaintiff climbed on his
shoulders to enter the room through a small elevated window he smashed
open. Upon entering through the window, he fell to the floo r and felt
his body hit something during the fall. He experienced spasms and
severe pain in his leg and lower back, but was able to help in moving
the furniture so that the door to the room could be opened. He was
then carried out and removed from the s cene by ambulance.
It is conceded that defendant's building contained numerous violations
of fire prevention and safety provisions contained in Multiple
Dwelling Law § 248 (governing single-room occupancy buildings) and of
the Administrative Code of the City of New Yo rk, including the
absence of fire alarms, smoke detectors and a sprinkler system.
SNIPPETS:
City of New York; Uniformed Firefighters' Association et al.; and Firemen's Association of
Plaintiff, a uniformed firefighter in the Fire Department of the City of New York, incurred a
The first floor of the building was occupied by two commercial establishments and the second
It is conceded that defendant's building contained numerous violations of fire prevention and
The trial court denied defendant's request to charge the jury on comparative fault as between
On appeal, the Appellate Division upheld the trial court's refusal to charge comparative
and we granted defendant leave to appeal to address the issue of whethe r comparative fault
We agree with the courts below that the culpability of an injured or deceased firefighter in
As authoritative, earlier decisions involving General Municipal Law § 205-a explain, that
"to ameliorate the harsh effects of the firefighter rule's bar to recovery in common-law
We have recently further refined the rule to give landowners immunity from liability from
Commn., supra, 85 NY2d, at 439 ).
In Santangelo v State of New York, we expressed a preference for a policy-based justification
Comparative fault diminishing a firefighter's recovery would undermine the Legislative goal
Thus, the Restatement of Torts provides that, although a plaintiff's contributory negligence
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