[Police Officers] The New 3/4's Slip & Falls = "Reasonable Anticipation"
By: Sean Patrick Riordan, Esq.
Sherman, Federman, Sambur & McIntyre, LLP.
Over the last several years you have read articles, written by me and others, which outlined the slow decline of "slip and fall" occurrences as they relate to "3/4's accidents." Since 2008 virtually everyone that came into my office with these type accidents was told that "a 50% Performance of Duty Disability Retirement is more realistic." However, I am pleased to write that this article outlines the re-emergence of these type occurrences as possible "accidents" which can enable officers to get their 3/4's benefit. By no means are all slip and falls going to be awarded 3/4's, but the Appellate Division, in several recent decisions, has outlined the type of slip and falls that can be granted benefits. In short, there is new hope for those that are permanently disabled from police work as a result of a slip and fall occurrence.
The courts have paid special attention to what they believe the officer could have "reasonably anticipated" at the time of their fall. Another way to phrase this is what the Police Officer "knew or should have known" about the condition on which they slipped, prior to falling. Much of the Court's thought process surrounds officers' normal duties and the risks associated therewith. For example, in a 2011 3rd Department decision where an officer tripped while chasing a subject through a "dimly-lit street", the officer was held to be performing his ordinary duties and should have reasonably anticipated that streets can contain various impediments to an officer’s safety, especially when dimly lit. (Murray v. New York State Comptroller, May, 2011).
In Stone v. New York State Comptroller an officer was carrying a trundle to assist a heart attack victim with the aide of an EMT. The EMT suddenly pushed the trundle forward causing the officer to fall backward against an open screen door. The Court found that this occurrence was NOT an accident because the officer was performing her ordinary duties in carrying the trundle and that the risk of her peer’s uncoordinated movements is inherent in such duties. However, the Court goes on to give keys to what they will consider an "accident." The Court notes that the officer in Stone failed to produce any evidence that:
(1) a hazardous condition existed
(2) a defective condition existed
(3) that the cause of the injury was entirely unrelated to the ordinary risks of the job.
The Court thereby sets out three ways for an officer to prove he has sustained an "accident" when injured as the result of a slip and fall.
In two subsequent decisions, the Court followed the train of though laid out in Stone. In Tierney v. New York State Comptroller, a Police Lieutenant "slipped on discarded food while stepping out of an office building where he routinely worked” and fell down stairs. In his testimony the Lieutenant stated he did not previously observe food on the steps (which caused his fall) when he entered the building earlier that day and he did not see the food immediately prior to slipping on it either. In overturning the Comptroller's denial of benefits the Court noted that the State failed to show that the hazardous condition (i.e. the garbage on the steps) could have been "reasonably anticipated."
Lastly, in Murphy v. New York State Comptroller, a Police Officer "slipped on black ice" as he exited his vehicle onto an airport taxiway in the month of January. Murphy had testified that on the day of his fall the weather conditions were cold and clear with no precipitation. The Officer also stated in testimony that he had not seen any ice prior to exiting the vehicle and had never before experienced ice in the area in which he fell unless it had recently snowed. In overturning the Comptroller's denial the Court wrote:
"the Comptroller's decision relies on the premise that encountering slip or icy surfaces was inherent in petitioner's performance of his job during winter. While this Court has held that a fall occasioned by a slippery surface is not an accident when that condition could have been reasonably anticipated, a denial upon such ground must be supported by the record and not rest merely upon speculation...we have never countenanced a doctrine...that would hold that any slip and fall during the course of work performed outside during winter renders that event foreseeable."
While the above statements of the Court seem obvious to us, their power and importance cannot be understated. What does it all mean to officers? First, as we have said for some time, it is important to be detailed in your initial Injured Employee Report. If you believe that you are injured due to an "unforeseeable" event, describe in such report why the condition that caused your injury was unknowable and the facts and circumstances that made it unknowable. The Court is making clear in their recent decisions that not everything an Officer encounters during their work is "foreseeable", so be clear from the outset why it wasn't in each particular occurrence. We don't want to have to wait for you to testify in order for the State to understand why this occurrence is unexpected.
Second, where there is a hazardous or defective condition that causes your injury, take pictures immediately after the event. The cliché that "pictures speak a thousand words" cannot be truer than in disability proceedings. It is important that we show the State the condition that caused the injury. The pictures will enhance the credibility of the claim. Many of these cases will now come down to our documentation, so we should and must produce all evidence possible.
As always, if you are injured in the course of your duties and need assistance filing the necessary paperwork, please do not hesitate to call or email and discuss the matter with our firm.