150 Misc. 2d 375

Roger F. Brown et al., Respondents, v Rosalia A. Harrington et al., Appellants and Third-Party Plaintiffs, et al., Defendant, et al., Third-Party Defendant.

Supreme Court, Appellate Term, Second Department,

June 12, 1990

APPEARANCES OF COUNSEL

Glen Kushel for appellants. Stuart R. Goldstein for respondents.

OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

*376In this negligence action for personal injuries the record reveals that on July 31, 1985 Officer Brown was on duty in an unmarked police car near the Richmond Avenue exit of the Staten Island Expressway. Brown observed the Ellis vehicle approaching at 58 miles per hour in a 35-mile-per-hour zone. The officer pursued the Ellis vehicle north on Richmond Avenue in an attempt to apprehend her for speeding. In the course of the pursuit Ellis’ car hit the Harrington vehicle at the three-way intersection of Forest Avenue, Richmond Avenue and Morningstar Road as Rosalia A. Harrington was making a left turn while allegedly arguing with her passenger and looking the wrong way. Officer Brown, while still in high speed pursuit, observed the collision and abruptly veered left to avoid striking the rear of Ellis’ now stationary car. As a result, Brown’s police car struck a telephone pole. Brown, alleging defendants’ negligence, seeks damages for personal injuries caused by the accident. His wife has a derivative claim for loss of services.

The attorney for the Harringtons asserts that Brown’s claims are barred by the “fireman’s rule” applicable to police officers injured in the line of duty under Santangelo v State of New York (71 NY2d 393).

The court below denied summary judgment on the ground that General Municipal Law § 205-e is retroactive.

In our opinion the order denying the Harrington defendants’ motion for summary judgment should be affirmed. The negligence that caused plaintiffs injuries was separate and apart from the wrongful conduct that created the occasion for his services. The wrong that created the occasion for his services was that of the speeding violator that Officer Brown was pursuing. The negligence that caused the plaintiffs injuries, however, was that of defendant Rosalia Harrington who allegedly made a left turn while arguing with her passenger and looking the wrong way. As a result she collided with the speeding violator causing Officer Brown to veer away and hit a telephone pole. It cannot be said that the officer assumed the risk created by that negligence (Dawes v Ballard, 133 AD2d 662; Starkey v Trancamp Contr. Corp., 152 AD2d 358; Tanico v Carr, NYLJ, July 13, 1989, at 20, col 5).

Kassoff, P. J., Williams and Santucci, JJ., concur.

Brown v. Harrington
150 Misc. 2d 375

Case Details

Name
Brown v. Harrington
Decision Date
Jun 12, 1990
Citations

150 Misc. 2d 375

Jurisdiction
New York

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