For affirmance -- Chief Justice Weintraub, and Justices Burling, Francis and Proctor. For reversal -- Justice Jacobs. The opinion of the court was delivered by Weintraub, C.J.
This case involves the liability of the owner or occupier of lands to a fireman injured while discharging his duty as a public employee. Plaintiff obtained a judgment on a jury verdict. The Appellate Division reversed with the direction that judgment be entered for defendant. One judge dissented, agreeing that a reversal was required by errors in the charge to the jury, but concluding that upon the facts plaintiff could succeed on a retrial. 54 N.J. Super. 442 (1959). Plaintiff's appeal comes to us as of right. Constitution of 1947, Article VI, § 5, par. 1(b); R.R. 1:2-1(b). (Plaintiff has since passed away and his administratrix was substituted. "Plaintiff," as hereinafter used, refers to the deceased.)
We agree the judgment was properly reversed for the reasons upon which all members of the Appellate Division agreed. The sole matter that concerns us is the correctness of the holding of the majority that upon the most favorable view of the situation plaintiff must fail as a matter of law.
Much has been written with respect to the duty owed to and the status of a fireman who enters private property pursuant to his public employment. He is not a trespasser, for he enters pursuant to public right. Although it is frequently said he is a licensee rather than an invitee, it has been correctly observed that he falls within neither category, for his entry does not depend upon permission or invitation of the owner or occupier, nor may they deny him admittance. Hence his situation does not fit comfortably within the traditional concepts. Prosser, Torts (2 d ed. 1955), § 78, p. 460; Shypulski v. Waldorf Paper Products Co., 232 Minn. 394,
45 N.W. 2 d 549 (Sup. Ct. 1951); Beedenbender v. Midtown Properties, 4 A.D. 2 d 276, 164 N.Y.S. 2 d 276 (App. Div. 1957). His status being sui generis, justice is not aided by appending an inappropriate label and then visiting consequences which flow from a status artificially imputed.
In what circumstances should the owner or occupier respond to the injured fireman? That the misfortune here experienced by a fireman was well within the range of foreseeability cannot be disputed. But liability is not always co-extensive with foreseeability of harm. The question is ultimately one of public policy, and the answer must be distilled from the relevant factors involved upon an inquiry into what is fair and just. See Rappaport v. Nichols, 31 N.J. 188, 205 (1959); Wytupeck v. City of Camden, 25 N.J. 450, 461 (1957).
It is quite generally agreed the owner or occupier is not liable to a paid fireman for negligence with respect to the creation of a fire. 2 Harper and James, Torts (1956), § 27.14, p. 1503; Annotation, 141 A.L.R. 584, 585 (1942); 13 A.L.R. 637 (1921); Villano v. Pure Oil Co., 62 N.J. Law J. 37 (Sup. Ct. 1938). To our knowledge but one decision seems to run against this proposition. Houston Belt & Terminal Ry. Co. v. O'Leary, 136 S.W. 601 (Tex. Civ. App. 1911), disapproved in Suttie v. Sun Oil Co., 15 Pa. Dist. & Co. R. 3, 7 (Cty. Ct. 1930) and questioned in Bohlen, "The Duty of a Landowner Toward Those Entering His Premises of Their Own Right," 69 U. Pa. L. Rev. 252, fn. 39 (1920-21). The rationale of the prevailing rule is sometimes stated in terms of "assumption of risk," used doubtless in the so-called "primary" sense of the term and meaning that the defendant did not breach a duty owed, rather than that the fireman was guilty of contributory fault in responding to his public duty. See Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44 (1959). Stated affirmatively, what is meant is that it is the fireman's business to deal with that very hazard and hence, perhaps by analogy to the contractor engaged as an expert to remedy
dangerous situations, he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid. Probably most fires are attributable to negligence, and in the final analysis the policy decision is that it would be too burdensome to charge all who carelessly cause or fail to prevent fires with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created, occurrences. Hence, for that risk, the fireman should receive appropriate compensation from the public he serves, both in pay which reflects the hazard and in workmen's compensation benefits for the consequences of the inherent risks of the calling. Villano v. Pure Oil Co., supra (62 N.J. Law J. 37); Lunt v. Post Printing & Publishing Co., 48 Colo. 316, 110 P. 203, 30 L.R.A., N.S., 60 (Sup. Ct. 1910).
Although there is virtual unanimity with respect to non-liability for negligence as to the creation of fire, there is appreciable authority which would impose liability upon the land occupier for negligence with respect to conditions creating undue risks of injury beyond those inevitably involved in fire fighting. Thus it has been held that a fireman may recover if the injurious hazard was created in violation of statute or ordinance. Bandosz v. Daigger & Co., 255 Ill. App. 494 (Ct. App. 1930) (storage of dangerous substance); Maloney v. Hearst Hotels Corp., 274 N.Y. 106, 8 N.E. 2 d 296 (Ct. App. 1937) (storage of dangerous substance); Drake v. Fenton, 237 Pa. 8, 85 A. 14 (Sup. Ct. 1912) (failure to guard elevator shaft); but see Kelly v. Henry Muhs Co., 71 N.J.L. 358 (Sup. Ct. 1904). So also, he has prevailed if the occupier failed to utilize an available opportunity to warn him of a hidden peril. Shypulski v. Waldorf Paper Products, supra (45 N.W. 2 d 549); Jenkins v. 313-321 W. 37th Street Corp., 284 N.Y. 397, 31 N.E. 2 d 503 (Ct. App. 1940), rehearing denied 285 N.Y. 614, 33 N.E. 2 d 547 (Ct. App. 1941); Schwab v. Rubel Corporation,
286 N.Y. 525, 37 N.E. 2 d 234 (Ct. App. 1941); James v. Cities Service Oil Co., 66 Ohio App. 87, 31 N.E. 2 d 872 (Ct. App. 1939), affirmed 140 Ohio St. 314, 43 N.E. 2 d 276 (Sup. Ct. 1942); Cities Service Oil Co. v. Dixon, 14 Ohio Law Abst. 203 (Ct. App. 1932). And the land occupier has been held where he failed to exercise due care with respect to the condition of places intended as a means of access by contemplated visitors. Meiers v. Fred Koch Brewery, 229 N.Y. 10, 127 N.E. 491, 13 A.L.R. 633 (Ct. App. 1920); Beedenbender v. Midtown Properties, supra (164 N.Y.S. 2 d 276); Taylor v. Palmetto Theater Co., 204 S.C. 1, 28 S.E. 2 d 538 (Sup. Ct. 1943); cf. Anderson v. Cinnamon, 365 Mo. 304, 282 S.W. 2 d 445, 55 A.L.R. 2 d 516 (Sup. Ct. 1955); Bohlen, supra (69 U. Pa. L. Rev., at p. 350). There are, of ...