Injured EMT Who Received Workers’ Comp Cannot Sue Fire Dept. Employer in Tort

An emergency medical technician who received workers’ compensation benefits for an injury resulting from a fall on a city-owned boardwalk sued the city for negligent failure to light the boardwalk, allegedly causing the fall. The city moved to dismiss on the grounds that receipt of workers’ compensation benefits precluded the plaintiff from suing, and that the city could not be sued as an “owner” of the boardwalk.  The trial court denied the motion. The appellate division reversed and granted the motion to dismiss, but gave the plaintiff leave to appeal to the court of appeals. The court of appeals affirmed the ruling of the appellate division.


The plaintiff based the claim against the city, which was also the plaintiff’s employer, on a New York statute creating a right of action for any fire department employee injured in the course of duty. A separate statute gives the same right of action to police department employees, but also explicitly provides that "nothing in this section shall be deemed to expand or restrict any right afforded to or limitation imposed upon an employer, an employee or his or her representative by virtue of any provisions of the workers' compensation law." This language does not appear in the statute pertaining to fire department employees, which the plaintiff argued was deliberate and showed that the limitation applied only to employees of the police department but not the fire department.


The court of appeals looked to the legislative history to determine that there was no intent to give firefighters, but not police officers, a right to sue their employers, and abrogated a prior case with the opposite holding.


Further, the court held that the workers’ compensation exclusivity provisions could not be circumvented by suing an employer in its capacity as a property owner. An employer maintains its status as an employer with respect to all matters connected to an employee’s employment.


See: Weiner v. City of New York, 2012 WL 1946750 (N.Y. May 31, 2012) (not designated for publication).