Price, Schettino and Hall. The opinion of the court was delivered by Hall, J.A.D. Schettino, J.A.D. (dissenting).
[54 NJSuper Page 446] In this action plaintiff, a salaried officer of the West Orange Fire Department, sued for personal injuries sustained by reason of a fall on appellant's premises during the course of responding to an alarm for a fire therein. The appeal is from a judgment in plaintiff's favor entered in the Law Division on a jury verdict. A subsequent motion for a new trial was denied. The claim against the corporate defendant was dismissed by the trial court and we are not concerned with it here. The principal grounds urged for reversal are denial of appellant's motions for involuntary dismissal at the end of plaintiff's case and for judgment at the conclusion of the entire case, and alleged errors in the charge to the jury. Pervading the whole case is the legal question of the duty owed, in the instant circumstances, by a land occupier to a fireman on the premises to extinguish a fire.
The complaint charged in the first count that appellant, as the owner and general contractor of a house in the course of construction at the time of the occurrence, "carelessly, negligently, wantonly and willfully" failed to maintain proper and reasonably safe conditions upon the premises in connection with a stairwell, and otherwise and similarly, and "unlawfully" as well, "placed or caused to be placed within said house a salamander or firepot, which caused considerable smoke to escape from it, thereby filling the house," and that such conduct "caused a dangerous condition to exist in the house," by reason of which plaintiff fell and injured himself while in the house in the line of duty. The second count, on the same factual allegations, asserted that because of "the dangerous and defective conditions which existed" appellant "created a nuisance," as a result of which plaintiff fell and sustained injury. The answer was a general denial and also pleaded the affirmative defenses of contributory negligence and assumption of risk.
Plaintiff's factual contentions, as set forth in the pretrial order, were that appellant created and maintained a dangerous condition on the premises, one, by permitting a salamander to burn in the house with escaping smoke and without maintaining control of it or providing a watchman and in violation of the town ordinance and state statute (of which violations, incidentally, there was no proof at the trial), and, two, by lack of proper safeguards about a balcony and stairwell during construction and in failing properly to construct the premises (of which failure there was also no proof) and to inform plaintiff of the dangers, all of which it was claimed created and set in motion a dangerous and hazardous situation with foreseeable risk of accident.
The pretrial order did not make clear just what legal duty plaintiff claimed he was owed. It did not specify whether he conceived liability could be imposed simply on the basis of so-called ordinary negligence or if willful or wanton conduct was required. Both bases were mentioned in the order (as well as the nuisance theory). This uncertainty
was carried into the charge. Both (together with the concept of nuisance) were put to the jury in a confusing manner without adequate explanation. For example, at one point in the charge, the judge said this:
"A member of a public fire department who, in an emergency, enters on premises in the discharge of his duties is a mere licensee under a commission to enter, given by law, to whom the owner or occupant is under no duty except to refrain from injuring him willfully or wantonly and to exercise ordinary care to avoid imperiling him by active conduct."
But he then went on immediately to state:
"Further, if the owner or occupant of land knows of some artificial or natural condition on the premises and in the exercise of reasonable foresight he realizes that it involves an unreasonable risk to a licensee, the owner or occupant has the duty to take responsible [sic] care to make the condition safe or to give a warning of its presence and of the extent of the risk involved."
Since a principal question on this appeal is the propriety of the denial of appellant's motions, we shall set forth the facts in the light most favorable to plaintiff under the familiar rule that the evidence must be so considered on such motions. Practically all of the evidence on the issue of liability came in on plaintiff's case, and, except in small particulars, his proofs were not challenged or added to by appellant's witnesses.
About 8 P.M. on March 5, 1955 plaintiff and three other firemen responded to a fire call at premises owned by appellant at 10 Lancaster Terrace, West Orange, which had been turned in by a neighbor. They discovered a salamander (admittedly owned by appellant) flaming out of its stack in the basement of the premises, which was a front-to-back split-level home then under construction by appellant. A salamander is a self-contained stove burning oil and not connected with an outside chimney. It is used to heat homes during construction and, as here, to dry out plaster. If the air intake remains properly set, it burns without flame or smoke coming out of its stack. The device was extinguished
but considerable smoke had filled the house and it was necessary to open the temporary windows to allow the house to air out. It was dark inside and the firemen found it necessary to use portable lights to find their way around. While there was no evidence in the basement that the flame had communicated fire to the building itself, to make certain the firemen went to the bedroom level and checked the walls, ceilings and floors there. Upon completing this inspection the plaintiff and another fireman, one McChesney, left one of the bedrooms and proceeded to return to the living room level. McChesney was using a portable light by reason of the smoke and its beam was directed past plaintiff's right leg. When plaintiff left the bedroom he walked straight ahead, thinking he was going down the stairs, but by reason of the smoke obstructing his vision, he stepped off a balcony, the railing for which had not yet been erected, and fell into a stairwell leading from the living room level to the basement, thereby sustaining the injuries for which he brought suit.
On March 1, 1958 plaintiff's fire company had been called to the premises to extinguish an over-heated salamander. Again on March 2 the fire company was called for the same purpose. Plaintiff was in the group which responded on the 1st but was not present on the 2nd. Both alarms were sent in by neighbors who had seen the stack glowing red in the darkness and believed there was an actual fire. There was some question as to whether there was any real need for the fire company to be called on these occasions, but that is of no moment.
Between the fire call on March 1 and that on March 5, appellant was admonished by the assistant chief of the fire department with respect to the use of the salamander. The assistant chief testified that he told appellant not to use the salamander unless a man was left in attendance or appellant personally checked it. The latter denied that he had been instructed that an attendant was necessary (this was the only real contradiction in the evidence) and testified that the assistant chief advised him to place a piece of
tin or sheet rock on the top of the stack and that he had communicated this request to his plasterer-subcontractor working on the premises and to whom he had loaned the device and who was the one actually using it. He said he had checked and found this had been done. (In our determination of this appeal we do not consider this testimony of defendant since plaintiff is entitled to the most favorable consideration of the evidence.) It may be pointed out that the reason for the admonition about its future use was not because it might endanger firemen or any one else, or even cause property damage, but rather to avoid the annoyance and trouble of unnecessary visits by the firemen. The assistant chief testified he told appellant that "we would not expect to answer a fire call again."
Plaintiff admitted that he knew the premises were under construction and that there was no railing around the balcony from which he fell. He knew this from answering the fire call on March 1 and his further observation of the condition when answering the alarm on March 5.
We proceed to a consideration of the various reasons advanced by appellant in support of his position that the trial court erroneously denied his motions for judgment.
One of the grounds of the motion made at the conclusion of the case was that appellant was under no liability because, as we have just said, he lent the salamander to his plasterer, claimed to be an independent contractor, who was actually using it and over whom he exercised no direction or control. The plasterer was not called as a witness. Appellant said he could not locate him. The contention and issue do not appear in the pleadings or pretrial order as such, but appear to have been fully tried without objection (R.R. 4:15-2). The question was left to the jury. There was no objection to this portion of the charge. The failure to grant the motion on this ground is urged here as reversible error. In view of our basis of decision, we need not pass on it.
Appellant moved for dismissal of the second (nuisance) count of the complaint at the end of plaintiff's
case, and reasserted the contention at the end of the entire case, on the basis, in effect, that there was no proof of the creation or maintenance of a nuisance in the true legal sense. The question of whether appellant's acts or omissions amounted to such was left to the jury in a theoretical dissertation on the subject of a true nuisance at law, with the further instruction that contributory negligence is "not a defense to the intentional invasion of the plaintiff's interests involved in nuisance cases, but it may be a defense where the basis of the nuisance is merely negligent conduct of the defendant." Nowhere did the court say that the nuisance here, if there were one, arose out of mere negligent conduct, nor did it leave that question for jury determination. Appellant objected to the charge on the ground that the facts did not establish a nuisance of an actionable character, i.e. , that a nuisance in the true legal sense had not been established in the case and that the concept had no proper place in it. He makes essentially the same argument to us. We agree with his contention. The second count should have been dismissed on the motion. The submission of the question to the jury, as an alternative theory of recovery, when it should have been earlier ruled out of the case completely, constituted prejudicial and reversible error, especially in view of the charge on the question of contributory negligence.
It has been well said by a learned text writer:
"There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance.' It has meant all things to all men, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition. Few terms have afforded so excellent an illustration of the familiar tendency of the courts to seize upon a catchword as a substitute for any analysis of a problem; the defendant's interference with the plaintiff's interests is characterized as a 'nuisance,' and there is nothing more to be said." Prosser, Torts (2 d ed. 1955), p. 389.
There has been an increasing tendency in recent years in this State, especially in cases involving injury or damage
from conditions or activities on real property to sue, at least alternatively, on the theory of nuisance, regardless of whether careful analysis of the facts would warrant the application of the concept in its proper sense.
Private nuisances, in the tort aspect, are considered to be of two kinds, an absolute nuisance or nuisance per se (which we referred to above as a "true nuisance") and those founded upon negligence, so-called. The former has been defined as "an act, occupation or structure which is a nuisance at all times and under all circumstances, regardless of location or surroundings." Priory v. Borough of Manasquan , 39 N.J. Super. 147, 157 (App. Div. 1956). The most essential characteristic is perhaps that the creation of the condition or the doing of the act is intentional, that word being used in a precise and not a broad sense. As Dean Prosser puts it:
"Occasionally they [nuisances] proceed from a malicious desire to do harm for its own sake [ e.g. , the spite fence cases]; but more often they are intentional merely in the sense that the defendant has created or continued the condition causing the nuisance with full knowledge that the harm to the plaintiff's interests is substantially certain to follow. Thus a defendant who continues to spray chemicals into the air after he is notified that they are blown onto the plaintiff's land is to be regarded as intending that result. If there is no reasonable justification for such conduct, it is tortious and subjects him to liability." Ibid, p. 392 (emphasis supplied).
The same authority summarizes the nuisance founded on negligence in this language:
"But a nuisance may also result from conduct which is merely negligent, where there is no intent to interfere in any way with the plaintiff , but merely a failure to take precautions against a risk apparent to a reasonable man." Ibid, p. 392 (emphasis supplied).
The distinction was clearly recognized and discussed in Hartman v. City of Brigantine , 23 N.J. 530 (1957) where the court pointed out the impropriety of applying the nuisance label to the second situation. Justice Jacobs there said:
"That the plaintiff has called the active wrongdoing a nuisance should not enter into the matter. If there were no negligent acts of commission [or for that matter, of omission] there is no responsibility to the plaintiff. If, however, there were such acts and they caused the injury and death, then the question arises as to whether the decedent himself exercised due care in the light of the circumstances; if he did not and his negligence proximately contributed to the injury and death, then the plaintiff is not entitled to recover." (23 N.J. , at page 536.)
The danger of being loose or inexact in using of the label is pointed up in the quotation. Contributory negligence, as such, is not a defense in the case of an absolute nuisance (and it was so charged in the instant case), although a plaintiff may be defeated when, with knowledge of the danger, he voluntarily assumed it. Hammond v. County of Monmouth , 117 N.J.L. 11, 16-17 (Sup. Ct. 1936). It is available where the so-called nuisance is founded on negligence, as in any negligence case.
There is nothing in the facts at bar, or in so many of the cases in our courts where the concept has been pleaded, to demonstrate the existence of an absolute nuisance. Certainly such did not arise because the balcony railing had not been installed; a house cannot all be constructed in the same moment. Failure to attend the salamander or carelessness in its operation could amount, at best, to nothing more than an ordinary negligent act of omission or commission.
The question of the legal duty owed to plaintiff arises under appellant's contention that the motions for judgment should have been granted because plaintiff had failed to prove any act of negligence. There can, of course, be no actionable negligence if the actor violated no duty he owed to the injured party. Consideration of the question must be had with close regard for the facts.
We have here an injury to a fireman while he was engaged in the work for which he was hired -- the extinguishment of fires. For the purpose of motions for judgment, it must be inferred that his fall resulted from the smoke, coming from the fire, which prevented him from seeing that he was
not about to walk down the stairs but was going to step off the unguarded balcony. While the fall would not have occurred if the contemplated railing had then been in place, we fail to see how that is of any real import. This was a house under construction, a fact obvious to anyone, and, as we have said, every part of it could not be built at one time. Speaking generally, it seems ridiculous to say that a builder must construct a building in such a way, even if physically possible, that at no time is there any condition present which might be considered hazardous to an adult coming on the premises. It appears equally lacking in common sense to suggest that some warning of conditions bound to exist in the ordinary course of building should have to be posted or otherwise given by the owner or contractor for the benefit of visitors, especially unexpected ones such as firemen who arrive in emergencies and may have to come at any hour, light or dark, and at times when no one connected with the enterprise may be expected to be present. Practically speaking, it is difficult to envisage how any effective warning could be given. Moreover, here the plaintiff knew that the balcony was unguarded (which we speak of in relation to the occupier's duty and not in the connotation of an affirmative defense of assumption of risk or contributory negligence. Cf. Pearlstein v. Leeds , 52 N.J. Super. 450, 456 (App. Div. 1958), certification denied, 29 N.J. 354 (1959)).
Nor can it be suggested with any degree of reason that a salamander in operation is intrinsically a dangerous instrumentality in the sense that term is used in our law. It is really no different from any other kind of heating apparatus, any of which, including the ordinary home oil burner, can belch flame and smoke if not functioning properly. We conceive this case is not legally different in essentials from one where an oil burner in an occupied home catches fire because the owner carelessly neglected to have it cleaned, emits flame and spreads thick smoke ...