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Special Rules for Firefighters and Cops Who Trip Could Trip You Up

Frank Lovece in Legal/Financial on October 10, 2014

2055 McGraw Avenue, Parkchester South, The Bronx

New York City government image - public domain
Oct. 10, 2014

On June 27, 2006, Lt. Daniel Grogul of Engine 64 in The Bronx was among the responders to a compactor fire at 2055 McGraw Avenue — one of the 171 buildings in the borough's Parkchester condominium complex, and part of the development's Parkchester South. The first firefighter to enter the compactor room, he was met by a gush of water. Bottles, cans, paper and other debris floated in the small flood that covered his feet and the entire floor of the room.

Grogul noticed two sprinkler heads in the room, one of them inside the compactor itself. That one had not turned off, and what with the accumulated water and a smoke condition in the room, Grogul couldn't see that the floor wasn't completely stable. He stepped on an uneven surface and fell, with all the weight of his uniform and equipment, twisting his left ankle outward.

As Battalion Chief Kevin T. Loughlan would later write in the FDNY's official incident report, "The floor of the compactor room was covered in approximately 3 inches of water. While attempting to contain the fire and shut power down to the compactor unit Lt. Grogul suffered an injury to his left ankle when he stepped in an eight inch drainage depression under the surface of the water."

Bravest Testimony

Now, other firefighters testifying in Grogul's eventual lawsuit said that there is normally an accumulation of water on the floor when the fire is being put out in a compactor, and that a metal plate on the floor in the area of the fall did not present a tripping hazard that would have to have been reported during an inspection. And an engineer, Shawn Rothstein, testified that the building had no code violations. Given all this, Parkchester South naturally disputed that it was liable for the fall.

Here's where it gets interesting. Grogul argued that the room's flooded condition resulted from alleged improperly functioning drains. He couldn't state for sure that the drains weren't working properly, but that was what he supposed. And another engineer, Stanley Fein, testified that, basically, what else could it have been? And inadequate drainage violates what the judge said was Rules of the City of New York Section 25-21 l(f), although RCNY Section 25-21 is "Required Approvals of Appliances," so maybe there was a typo in there.

Now normally, you can't recover damages in a situation like this unless you demonstrate that the building owner "created or had actual or constructive notice of the dangerous or defective condition," noted Judge Alison Y. Tuitt, who added that the defect must be visible and apparent, and must exist for a sufficient length of time to permit its discovery and remedy.

However … that doesn't take into account General Obligations Law 11-106, which carves out an exception for two professions: "[W]henever any police officer or firefighter suffers any injury ... while in the lawful discharge of his official duties and that injury ... is proximately caused by the neglect... of any person or entity, other than that police officer's or firefighter's employer or co-employee ... that police officer or firefighter... may seek recovery and damages…."

Didn't know that, did you?

The Garbage House Rules

Grogul brought up other New York Building Code provisions he said Parkchester South had violated — mostly general stuff about buildings having to be maintained in a safe condition and good repair, but also specifically 1 RCNY 24-01, which says garbage-room floors must be concrete "and shall be sloped to a floor drain within the room connected to the house drain. The drain shall be provided with a protective screen to retain solid material. Floor drain traps shall be readily accessible for cleaning."

Did the condominium violate any of those rules? Were the drains really clogged? And what's up with Maria Grogul, the firefighter's wife, who was a co-plaintiff though presumably she wasn't there swinging a fire ax? At this point, who knows? All the judge decided was that there were still enough questions of fact that the whole megillah could go to trial.

But in the meantime — keep snaking out those drains.


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