fellow-servant rule in New York

1993We emphasize, however, that the Santangelo rule does not preclude all causes of action against a municipality for injuries resulting from a fellow police officer's negligence; nor is Santangelo at odds with our previous holdings in which we abrogated the general prohibition of the fellow-servant rule ( see , Buckley , 56 N.Y.2d 300 , supra ; and Poniatowski , supra ).

1993We emphasize, however, that the Santangelo rule does not preclude all causes of action against a municipality for injuries resulting from a fellow police officer’s negligence; nor is Santangelo at odds with our previous holdings in which we abrogated the general prohibition of the fellow-servant rule (see, Buckley, 56 NY2d 300 , supra; and Poniatowski, supra).

1982Nevertheless, the rule has not yet been completely obliterated since there are some areas of employment, such as those involved in the present appeal (see Matter of Ryan v City of New York, 228 NY 16 ; Matter of Krug v City of New York, 196 App Div 226 ), where the Workers’ Compensation Law does not apply.

1981In this State, although it has been held that a New York City policeman (Matter of Ryan v City of New York, 228 NY 16 ), and a New York City fireman (Matter of Krug v City of New York, 196 App Div 226 ), are not entitled to benefits under the Workers’ Compensation Law, 4 the absence of such coverage was not used as a basis for upholding the fellow-servant rule against a member of the city’s uniformed officers.

1982Nevertheless, the rule has not yet been completely obliterated since there are some areas of employment, such as those involved in the present appeal (see Matter of Ryan v City of New York, 228 NY 16 ; Matter of Krug v City of New York, 196 App Div 226 ), where the Workers’ Compensation Law does not apply.

1981In this State, although it has been held that a New York City policeman (Matter of Ryan v City of New York, 228 NY 16 ), and a New York City fireman (Matter of Krug v City of New York, 196 App Div 226 ), are not entitled to benefits under the Workers’ Compensation Law, 4 the absence of such coverage was not used as a basis for upholding the fellow-servant rule against a member of the city’s uniformed officers.

1981Similarly stated, “assumption of risk”, visa-vis the relation of employee to employer, means that in the absence of a statute to the contrary: “ [T]he rule is that an employee by his very act of entering the service of the employer—by his very contract of employment—assumes the ‘ordinary’ risks of the service or such risks as usually are incident thereto, and an employee injured solely by reason of such risks has no common-law right of recovery against [an] employer * * * The real foundation rests on the thought that the employee enters the employment voluntarily, knowing the perils to which h

1933(Fay v. DeCamp, 257 N. Y. 407, 409, 410 ; Erjauschek v. Kramer, 141 App. Div. 545, 547 ; Zilver v. Graves Co., 106 id. 582, 586 ; Miller v. American Sugar Refining Co., 138 id. 512.) “ One who engages in work with others takes the chances, not only of his own negligence, but of the negligence of which his fellow-servants may be guilty; and it is as well settled as any rule can be that he cannot recover from the common master, damages in respect- to the negligence of the fellow-servant any more than for damages arising from his own want of care.” (Stringham v. Hilton, 111 N. Y. 188, 198 .) The

1930(International Stevedoring Co. v. Haverty, 272 U. S. 50 .) There was clearly presented a question of whether the defendant’s foreman, Azzolini, under whose direction the plaintiff was working, was guilty of negligence in failing to make reasonable inspection of the hold of the vessel for the purpose of determining whether it afforded a reasonably safe place in which to carry on the work in question, and also whether there was negligence on the part of the plaintiff’s fellow-servant, Camporeale. in performing the particular act which was the immediate cause of the plaintiff’s injuries.

1929Congress has acted and the Supreme *222 Court of the United States has said broadly (International Stevedoring Co. v. Haverty, supra) that “ .the statutes do away with the fellow-servant rule ” as applied to longshoremen engaged in stowing freight in the hold of a ship within the admiralty and maritime jurisdiction of the United States.

1929By the Seamen’s Act of March 4, 1915 (38 Stat. ch. 153, § 20), it was provided that “ in any suit to recover damages for any injury sustained on board vessel or in its service seamen having command shall not be held to be fellow-servants with those under their authority.” This language proved to be inadequate to substitute the common-law measure of liability for personal injuries for the maritime rule of limited liability in the case of seamen (Chelentis v. Luckenbach S. S. Co., 247 U. S. 372 ), and was probably appropriate only to the relief of seamen in any event.

1922(Chelentis v. Luckenbach S. S. Co., 247 U. S. 372 .) That case was decided by the United States Supreme Court in 1918, and in 1920 when Congress took up the readjustment of conditions brought about by the World War and the promotion and maintenance of the American merchant marine, it considered the rights and remedies of the seamen employed upon American vessels.

1927(Second Employers’ Liability Cases, 223 U. S. 1, 49 .) That being so, the motion to strike out the second separate defense in the answer,, which sets up the negligence of a fellow-servant, must be granted.

1917(Second Employers' Liability Cases, 223 U. S. 1 ; Central Vermont Ry. v. White, 238 id. 507.) There was evidence tending to show that the throttle acted automatically, and if it was released the machine would stop.

1922Co. v. De Atley, 241 U. S. 310 , that the act of congress, by making the carrier liable for an employee’s injury, resulting in whole or in part from the negligence of any of the officers, agents or employees of the carrier, abrogated the common-law rule known as the fellow-servant doctrine by placing the negligence of a co-employee upon the same basis as the negligence of an employer.

1922Co. v. De Atley, 241 U. S. 310, 313 , where the court, by Mr. Justice Pitney, says: “ The act of Congress, by making the carrier liable for an employee’s injury ‘ resulting in whole or in part from the negligence of any of the officers, agents, or employees’ of the carrier, abrogated the common-law rule known as the fellow-servant doctrine by placing the negligence of a co-employee upon the same basis as the negligence of the employer.

1922By section 4 of the Federal Employers’ Liability Act it is provided that the “ employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” In Seaboard Air Line v. Horton, 233 U. S. 492, 503 , the Supreme Court said: “ It seems to us that § 4, in eliminating the defense of assumption of risk in the cases indicated, quite plainly evidences the legislative intent that in all other cases such assumption shall have its former effe

1922At the same time, in saving the defense of assumption of risk in cases other than those where the violation by the carrier of a statute enacted for the safety of employees may contribute to the injury or death of an employee (Seaboard Air Line v. Horton, 233 U. S. 492 ), the act placed a co-employee’s negligence, where it is the ground of the action, in the same relation as the employer’s own negligence would stand to the question whether a plaintiff is to be deemed to have assumed the risk.

1921Co . v. White, 238 U.S. 507 ; Southern Ry.

1921Co. v. White, 238 U. S. 507 ; Southern Ry.

1909Co., 5 N. Y. 492 .) I think that later decisions show a tendency to lose sight of the sound reason on which Chief J ustice Shaw placed the fellow-servant doctrine, and to put it on the vague ground of public policy, though Sapallo, J., in the leading case of Crispin v. Babbitt ( 81 N. Y. 516, 521 ) plainly perceived and approved of the former reason.

1909Co., 5 N. Y. 492 .) I think that later decisions show a tendency to lose sight of the sound reason on which Chief J ustice Shaw placed the fellow-servant doctrine, and to put it on the vague ground of public policy, though Sapallo, J., in the leading case of Crispin v. Babbitt ( 81 N. Y. 516, 521 ) plainly perceived and approved of the former reason.

1909Co., 5 N. Y. 492 .) I think that later decisions show a tendency to lose sight of the sound reason on which Chief J ustice Shaw placed the fellow-servant doctrine, and to put it on the vague ground of public policy, though Sapallo, J., in the leading case of Crispin v. Babbitt ( 81 N. Y. 516, 521 ) plainly perceived and approved of the former reason.

1909Co., 5 N. Y. 492 .) I think that later decisions show a tendency to lose sight of the sound reason on which Chief J ustice Shaw placed the fellow-servant doctrine, and to put it on the vague ground of public policy, though Sapallo, J., in the leading case of Crispin v. Babbitt ( 81 N. Y. 516, 521 ) plainly perceived and approved of the former reason.

1909Co. ( 6 Barb. 231, 235 ), says that “ the rule respondeat superior does not itself spring directly from principles of natural justice and equity, but has been established upon principles of expediency and public policy for the protection of the community; and that, in view of the unjust consequences which may ensue from its application for injuries by co-servants, the same principles of public policy demand its limitation.” Whether the decision in this case is put on the vague and unsatisfactory reason of public policy or upon the firm ground on which Chief Justice Shaw based the fellow-servan

1909Co. ( 6 Barb. 231, 235 ), says that “ the rule respondeat superior does not itself spring directly from principles of natural justice and equity, but has been established upon principles of expediency and public policy for the protection of the community; and that, in view of the unjust consequences which may ensue from its application for injuries by co-servants, the same principles of public policy demand its limitation.” Whether the decision in this case is put on the vague and unsatisfactory reason of public policy or upon the firm ground on which Chief Justice Shaw based the fellow-servan

1996Packing Co., 159 Misc 2d 855, 860 ; Alexander, 1994 Supp Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, 1996 Pocket Part, CPLR C1601:2; see also, People ex rel.

1993As noted, the Santangelo rule bars only those claims for injuries caused by the negligence of a fellow police officer when the injury is related to the dangers that are associated with police functions — as, for example, for an injury resulting from a bomb explosion ( see , Pascarella , supra ), an injury caused from the improper apprehension of a suspect (see , Buckley , 176 AD2d 207 , supra) *592 or, as here, for injuries sustained in responding to an emergency "1013" call.

1993As noted, the Santangelo rule bars only those claims for injuries caused by the negligence of a fellow police officer when the injury is related to the dangers that are associated with police functions — as, for example, for an injury resulting from a bomb explosion (see, Pascarella, supra), an injury caused from the improper apprehension of a suspect (see, Buckley, 176 AD2d 207 , supra) or, as here, for injuries sustained in responding to an emergency "1013” call.

1993As noted, the Santangelo rule bars only those claims for injuries caused by the negligence of a fellow police officer when the injury is related to the dangers that are associated with police functions — as, for example, for an injury resulting from a bomb explosion ( see , Pascarella , supra ), an injury caused from the improper apprehension of a suspect (see , Buckley , 176 AD2d 207 , supra) *592 or, as here, for injuries sustained in responding to an emergency "1013" call.

1993As noted, the Santangelo rule bars only those claims for injuries caused by the negligence of a fellow police officer when the injury is related to the dangers that are associated with police functions — as, for example, for an injury resulting from a bomb explosion (see, Pascarella, supra), an injury caused from the improper apprehension of a suspect (see, Buckley, 176 AD2d 207 , supra) or, as here, for injuries sustained in responding to an emergency "1013” call.

1993We emphasize, however, that the Santangelo rule does not preclude all causes of action against a municipality for injuries resulting from a fellow police officer's negligence; nor is Santangelo at odds with our previous holdings in which we abrogated the general prohibition of the fellow-servant rule ( see , Buckley , 56 N.Y.2d 300 , supra ; and Poniatowski , supra ).

1993We emphasize, however, that the Santangelo rule does not preclude all causes of action against a municipality for injuries resulting from a fellow police officer’s negligence; nor is Santangelo at odds with our previous holdings in which we abrogated the general prohibition of the fellow-servant rule (see, Buckley, 56 NY2d 300 , supra; and Poniatowski, supra).

1986(Setzkorn v City of Buffalo, 219 App Div 416, 417 .) By statutory provision, a defense based on the fellow-servant rule is no longer available to the employer in any lawsuit based on a section 11 election.

1984Thus, it is specifically stated in the Appellate Division case of Lawrence v City of New York ( 82 AD2d 485, 489 ): “The intent of subdivision 2 of section 2 of the Employers’ Liability Law is that so far as it pertains to the negligence of a superintendent, the fellow-servant doctrine does not apply”.

1982As this court observed in Woods v Lancet ( 303 NY 349, 355 ), “[w]e act in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice”.

1981By reason of the negligence of any person in the service of the employer intrusted with any superintendence or by reason of the negligence of any person instrusted with authority to direct, control or command any employee in the performance of the duty of such employee, the employee * * * shall have the same right of compensation and remedies against the employer as if the employee had not been an employee of nor in the service of the employer nor engaged in his work.” The intent of subdivision 2 of section 2 of the Employers’ Liability Law is that so far as it pertains to the negligence of a

1981By reason of the negligence of any person in the service of the employer intrusted with any superintendence or by reason of the negligence of any person instrusted with authority to direct, control or command any employee in the performance of the duty of such employee, the employee * * * shall have the same right of compensation and remedies against the employer as if the employee had not been an employee of nor in the service of the employer nor engaged in his work.” The intent of subdivision 2 of section 2 of the Employers’ Liability Law is that so far as it pertains to the negligence of a

1981In fact it has been held that the fellow-servant rule practically disappeared with workers’ compensation (Reboni v Case Bros., 137 Conn 501; cf. Fitch v Mayer, 258 SW2d 923 [Ky]; Kansas City Stockyards Co. of Maine v Anderson, 199 F2d 91 [interpreting the law of Missouri]).

1981In the absence of remedial legislation, such as workers’ compensation laws, courts in many jurisdictions concluded that an employee’s action against his employer was still subject, inter alia, to the fellow-servant rule defense (May v Sharp, 191 Ark 1142 ; Parker v Nelson Grain & Milling Co., 330 Mo 95; Richardson v American Cotton Mills, 189 NC 653).

1981The theory underlying workers’ compensation acts was supposedly expressed in the following vivid statement attributed to Lloyd George in a campaign slogan: “ ‘[T]he cost of the product should bear the blood of the workman.’ ” (See Prosser, Torts [4th ed], § 80, p 530.) However, workers’ compensation acts, at least in the earlier years, have been held not to cover the injuries of many categories of employees, such as farm laborers (Shafer v Parke, Davis & Co., 192 Mich 577 ; Greischar v St.