Bystanders are ordinarily not required to help a third party in distress. It’s also rare to see a police officer sue after being injured by a perpetrator. A recent case involving two New York City cops, Filippo v. New York City Transit Authority, is a unique exception. The case involved two plainclothes officers who chased a suspect into a subway station. The officers displayed their shields to the station agent upon entering the subway and asked him to call for backup. The agent was inside a locked booth and was equipped with an emergency communication system that he could have activated by pushing a button and stepping on a pedal. For some unknown reason he failed to summon help and the officers were injured after being involved in a fierce and protracted struggle with the assailant. The officers claimed that the station agent was negligent and sued his employer, the Transit Authority.

At trial, the court dismissed the case, finding that police officers could not sue a bystander for failing to call for aid. The appeals court disagreed and found that the officers did have the right to sue for their injuries. First, the court explained that Public Authorities Law Section 1212(3) imposes liability upon the Transit Authority for the negligence of its employees in the operation of the subway system. The appeals court then cited a 1986 case from New York’s High Court, Crosland v. New York City Transit Authority, which held that the Transit Authority could be held liable for failing to summon help in the narrow circumstance where an employee stands by from “a vantage point offering both safety and the means to summon help without danger.” The Crosland case involved a passenger who was beaten to death by a gang of thugs while a Transit Authority employee failed to call for help.

When discussing Crosland, the appeals court noted that the High Court never indicated that there was an exception for police officers. In fact, contrary to the trial court’s decision, General Obligation Law Section 11-106 gives police officers and firefighters who are injured in the line of duty the right to sue.

Clearly, the appeals court was correct in the application of the law. In our opinion, the Transit Authority’s better argument was the issue of “proximate cause.” In negligence cases, the injured party is required to prove that the negligent conduct caused the injury. This is particularly difficult to prove in cases involving people injured by criminal activity who then decide to sue a third party rather than the criminal. It appears that the Transit Authority failed to properly raise this issue even though it would seem that the police officers would have had a difficult time establishing that backup would have arrived before they were injured, as well as whether the backup would have actually prevented their injuries. We are left to wonder why this issue was not properly raised by the Transit Authority.

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