Officer Kelly called the fire department to request that the department's technical response unit perform the actual rescue and sought ambulances and additional police personnel. Given the extreme conditions created by Sandy, Officer Kelly estimated that it would take approximately two hours for the technical response unit to arrive, and other officers had been instructed not to respond.

Therefore, he said, he entered the unstable building in response to "blood-curdling screams" for help.

Upon entering the structure, Officer Kelly saw that a resident "had been impaled and put through the floor into the basement." Officer Kelly climbed on top of a pile of debris and started throwing debris out of the back of the house to rescue the people who were underneath the pile. He said that he felt a pain in his shoulder, but that he ignored it in an attempt to free the residents.

Shortly thereafter, Officer Kelly said, a rafter that was dangling from the portion of the roof that was still intact began to fall, and he reached up to brace the rafter, further injuring his shoulder and neck.

Officer Kelly later explained that, if he had not braced the falling rafter, debris would have landed on the other officer who was assisting in digging out the family.

Officer Kelly and the other officer were able to rescue one of the residents and partially extricate another during the time that they were in the structure before the fire department arrived. Officer Kelly then exited the residence and the fire department extricated the remaining resident.

Officer Kelly applied for accidental disability retirement benefits based on the injuries he said he had sustained during the rescue. A hearing officer determined that the injury-causing incident had been an "accident" within the meaning of New York Retirement and Social Security Law § 363 because "[e]ntering that unstable structure was not within [Officer Kelly's] regular and usual duties."

New York State Comptroller Thomas P. DiNapoli overruled the hearing officer's determination, concluding that Officer Kelly had not met his burden of proving that his injury had resulted from an "accident."

Officer Kelly went to court, challenging the comptroller's determination.

The court held that Officer Kelly's injury had resulted from a risk inherent in his employment as a police officer, whose duty it was to assist injured persons, and it rejected any argument that Officer Kelly's response was outside the scope of his job duties, noting that his supervisors had instructed him to respond to emergency calls involving life and limb.

The dispute reached the New York Court of Appeals.

New York Law

New York Retirement and Social Security Law § 363(a)(1) provides that a member of the police and firefighters' retirement system:

shall be entitled to an accidental disability retirement allowance if, at the time application therefor is filed, [the member] is . . . [p]hysically or mentally incapacitated for performance of duty as the natural and proximate result of an accident not caused by [the member's] own willful negligence sustained in such service.

The New York Court of Appeals Decision

The court upheld the comptroller's decision.

The court found "substantial evidence" supporting the comptroller's decision that Officer Kelly had not been injured as the "natural and proximate result of an accident . . . sustained in . . . service." It reasoned that Officer Kelly had not demonstrated that his injuries had been caused by "sudden, unexpected events" that were not risks inherent in his ordinary job duties and, therefore, that he was not entitled to accidental disability retirement benefits.

Specifically, the court said, the comptroller could "rationally" have concluded that, when injured, Officer Kelly had been acting within the scope of his "ordinary employment duties, considered in view of the particular employment in question," and that there had been no sudden, unexpected event that was not an inherent risk of his regular duties.

The court pointed out that the comptroller had concluded that, as a police officer, Officer Kelly was expected to assist injured persons, and that responding to emergencies was among the ordinary duties of police officers. Moreover, the court continued, the comptroller found that, on the night in question, Officer Kelly had been instructed to respond to life-threatening emergencies, including the directive to assist injured persons at "a house that had been caved in by a falling tree."

According to the court, Officer Kelly had been acting within the scope of his job duties when he responded to that emergency call.

Therefore, the court concluded, although a different result would not have been unreasonable, there was "substantial evidence in the record" to support the comptroller's determination that Officer Kelly's actions in assisting the injured residents of the house during life-threatening conditions fell within his job duties, and that his injuries had not resulted from a "sudden, unexpected event that was not a risk inherent in his duties as a police officer" that otherwise would have permitted him to receive accidental disability retirement benefits.

FC&S Legal Comment

A unanimous court reached the same result in a companion case involving a firefighter who allegedly had been exposed to toxic fumes while responding to a 911 call. However, two judges dissented in Officer Kelly's case, concluding that the confluence of factors (Superstorm Sandy, a family trapped in a damaged house, the unavailability of firefighters and other first responders, a beam falling directly on another officer, and a trapped person) was well within the definition of an "emergency" and not an "accident."

The case is Matter of Kelly v. DiNapoli, Nos. 2, 3 (N.Y. Feb. 13, 2018). Attorneys involved include: Joseph M. Dougherty, for appellant (Case No. 2); William E. Storrs, for respondent (Case No. 2); William E. Storrs, for appellant (Case No. 3); Donald P. Henry, for respondent (Case No. 3).