On appeal from Superior Court, Law Division, Bergen County.
[167 NJSuper Page 430] Plaintiffs appeal from a summary judgment entered in favor of defendants upon a complaint alleging negligence in failing to repair a defective oil burner, which negligence allegedly caused a fire in the boiler room of an apartment building owned by defendant Jineri Company and leased to defendant Albanese. Plaintiffs Ferraro and Chormanski
are the widows of two firemen killed by smoke inhalation suffered in that fire; plaintiff James Fucci was another fireman who sustained personal injury in the same fire, and his wife sued for loss of consortium. Plaintiffs alleged that defendants negligently caused the deaths and injury in that they failed to correct the known defective condition of the oil burner. Defendants Combustion Sales and Romano Plumbing were alleged to have been hired by the other defendants to repair the oil burner, which repairs were allegedly done negligently.
The trial judge granted a summary judgment in favor of all defendants, ruling that no duty was owed to the firemen, nor was any wanton conduct proved. The judge deemed Krauth v. Geller , 31 N.J. 270 (1960), to be dispositive.
In Krauth the court held that a landowner or occupier is not liable to a paid fireman for negligence in causing the fire in which the fireman is injured. 31 N.J. at 273. The Court reasoned that by virtue of a fireman's duties he must be deemed to assume the risks inherent in fire fighting, which risks are intended to be insured against by workers' compensation and by regular salary from public funds, instead of by resort to private litigation. Id. at 273-274. The Krauth rule has been consistently followed. It appears to represent the prevailing view in other jurisdictions. Caroff v. Liberty Lumber Co. , 146 N.J. Super. 353, 359 (App. Div. 1977), certif. den. 74 N.J. 266 (1977); Walsh v. Madison Park Properties, Ltd. , 102 N.J. Super. 134, 138 (App. Div. 1968); Jackson v. Velveray Corp. , 82 N.J. Super. 469, 474-475 (App. Div. 1964). See Annotation, "Duty and liability of owner or occupant of premises to fireman or policeman coming thereon in discharge of his duty," 86 A.L.R. 2d 1205 (1962).
On appeal plaintiffs first urge us to reject or modify the fireman's rule on the ground that it operates to deny firemen equal protection of the law. This constitutional theory was neither pleaded nor argued below, a fact that plaintiffs have failed to indicate, as mandated by R. 2:6-2(a). Thus we
need not consider it, and, having concluded that the public interest is not substantially implicated, we decline to do so. Deerfield Estates, Inc. v. East Brunswick Tp. , 60 N.J. 115, 120 (1972); Steward v. Magnolia , 134 N.J. Super. 312, 316 (App. Div. 1975), certif. den. 68 N.J. 481 (1975).
Plaintiffs argue that, even if the fireman's rule is valid, the instant case falls within the exceptions recognized in Krauth. There the court noted that the general rule barring recovery is not absolute. If the landowner's negligence relates "to conditions creating undue risks of injury beyond those inevitably involved in fire fighting," an injured fireman may recover. 31 N.J. at 274. The exception is limited to risks unrelated to the initial cause of the fire, such as the storage of dangerous substances which explode during the fire, the failure to guard an open elevator shaft or the failure to maintain unobstructed means of access. Id. at 274-275. In Jackson, supra , we said that the exception "is not concerned with how the fire began or spread before the firemen arrived, but rather whether, after they arrived and undertook to fight the fire, they were subject to risks not inevitable or inherent in fighting the fire of that kind and extent." 82 N.J. Super. at 479.
In the instant case the cause of the injuries -- smoke inhalation -- was a risk common to fire fighting. Walsh, supra , 102 N.J. Super. at 138-139; Jackson, supra , 82 N.J. Super. at 475. Defendants' negligence, which was assumed by the trial court for the purposes of the summary judgment motion, went to the cause of the fire, not to some condition of the premises unrelated to the fire.
Plaintiffs further attempt to fit within a second exception which they claim was acknowledged by the Krauth court: recovery may be had where the negligence rose to the level of wantonness. We disagree that any such exception was recognized in Krauth. Indeed, the court expressly declined to decide whether wantonness was an exception, citing the absence of evidence of ...