New York City Police Officer Accidentally Shot with in Face and Chest with Taser Gun by Sergeant is Not Entitled to Recover Damages

In a disappointing case on many levels, a New York City Police Officer was accidentally shot in the face and chest with a taser by his sergeant.  The officer was assigned as the patrol sergeant’s driver in the Bronx’s PSA 7.  He left the PSA to inspect the assigned RMP (police cruiser) before he and the sergeant were to begin patrol.  After the inspection, he returned to the main desk of PSA 7 where the sergeant was standing. The officer stood by waiting for the sergeant.  The sergeant removed a taser gun from the main desk and conducted a spark test.  However, the taser discharged and lodged prongs into the officer’s lower jaw and chest. The officer, who was electrocuted, was immediately rushed to the hospital. The prong lodged in officer’s jaw required surgical removal. Unfortunately, the officer suffered nerve damage from the incident and sued the City and sergeant for common-law negligence and under New York’s General Municipal Law (GML) 205-e which gives all police officers in New York the right to sue for line of duty injuries where a violation of a statute, ordinance, code, rule, or regulation causes directly or indirectly the officer’s injuries.  In a disappointing decision, the court denied the officer’s claims.

Under New York’s General Obligations Law § 11-106, officers have a right to sue members of the general public when the officer is injured in the line of duty, that is while engaged in the “lawful discharge of his [or her] official duties.”  However, under the old “firefighter’s rule,” an officer still has no right to sue a fellow officer or his or her municipal employer unless it can be shown that the officer was not engaged in official duties.  On this point, courts have said that if the activity involved “increases the risk of the injury happening” or if the activity is “plainly a risk associated with the particular dangers inherent in police work,” the officer cannot sue a fellow officer or his municipal employer. Courts have established a really low bar as to what sort of activity is considered a risk plainly inherent to police work.

In this recent case, the court found that merely standing in the police precinct waiting for the sergeant – a mundane activity indeed – “constituted an act taken in furtherance of a specific police function.”  The court found (i) that the police officer was on duty and waiting for the sergeant as the sergeant’s operator; and (ii) “the discharge of a taser, accidental or otherwise, clearly constitute[d] a risk associated with the particular dangers of police work,” in part because the sergeant “had received specialized training on using the taser in a safe manner.” The court held the officer was performing police duties that “increased the risk of the injury happening and did not merely furnish the occasion for the injury.”  It is unclear from the case, whether the officer was standing in an area of the station house open to the general public and whether that fact would have changed the judge’s mind.

Similarly, disappointing was that the court dismissed the officer’s GML § 205-e claim.  A GML § 205-e claim can be brought against anyone, including the municipal employer or fellow employee.  Such claim occurs when an officer is injured “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 requirements 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.”  Here, the officer claimed that the accidental discharge of the taser constituted a “recognized hazard” under Labor Law § 27-a.

Relying on the precedent of another case, the court found that, the accidental discharge of a taser was not a “recognized hazard” under Labor Law § 27-a and summarily dismissed the officer’s claim.

We’ll see if the police officer appeals.

We are experienced New York line-of-duty injury attorneys representing injured police officers and other first responders, including EMTs and Paramedics. You may have a right to sue for your injuries.  Call us to discuss your legal rights at 212.425.1401, ext. 3009, or 914.725.3632 or contact us online.

Additional Resources

Dethomas v. The City of New York and Villalobos, Index No. 20238/2015 (Sup. Ct. Bronx County, July 9, 2018).

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