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Trainor v. Santana

Decided: June 15, 1981.

EDWARD J. TRAINOR AND JACQUELYN TRAINOR, HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
FRANCISCO SANTANA, DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 174 N.J. Super. 619 (1980).

For affirmance -- Chief Justice Wilentz, and Justices Sullivan, Pashman, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Sullivan, J.

Sullivan

[86 NJ Page 403] This appeal presents the question whether the "fireman's rule" bars plaintiff, a police officer, from recovering damages from defendant for personal injuries caused by defendant's

negligent operation of his automobile after it was stopped for a traffic violation. The fireman's rule, applicable in tort cases, is that because it is a fireman's business to deal with the usual hazards involved in fighting fires, a fireman "cannot complain of negligence in the creation of the very occasion for his engagement." Krauth v. Israel Geller and Buckingham Homes, Inc., 31 N.J. 270, 274 (1960). In Krauth this Court held that an owner or occupier of land was not liable to a fireman injured while fighting a fire negligently created by the owner or occupier.*fn1 Id. at 274-278. This Court has never dealt with the fireman's rule in the context of a policeman injured in the line of duty.

In the instant case, plaintiff Edward Trainor, a police officer employed by the Town of Dover, sustained injuries while attempting to arrest defendant Francisco Santana on a traffic charge. Thereafter, plaintiff and his wife filed a tort action against defendant charging him with negligence in the operation of his automobile. Plaintiffs' proofs may be briefly summarized. On January 4, 1976 at about 2:50 a.m., plaintiff, while on patrol duty with another officer, observed defendant's car being operated at a high rate of speed. He commenced pursuit with his overhead lights flashing. After several blocks the officers came upon the car stopped on the side of the road. Plaintiff parked the patrol car behind the vehicle and walked up to it. He directed his flashlight inside the car and saw defendant and another man crouched down in the front seat. Plaintiff opened the front door and asked for defendant's license, registration and insurance card and advised him that he was under arrest. According to plaintiff, defendant shouted "no license" and tried

to close the door, momentarily pinning plaintiff's arms inside the car. At the same time defendant tried to speed off. The car, however, was parked in an icy area and the rear wheels kept spinning on the ice. Plaintiff freed himself and stepped back. The car suddenly regained traction and lurched toward plaintiff who, while attempting to jump out of the way, was struck by the left side of the car. As it sped off, plaintiff and his partner drew their service revolvers and fired at the tires of the car which turned into a private driveway a short distance away. The occupants fled into a nearby house. Defendant was found, fully dressed, in a bed inside the house and was arrested.*fn2

Defendant's version was that he lived near the scene of the incident and was parking his car where he customarily leaves it overnight when he saw the police car pull up behind him. As the police officer approached defendant's car, it began to slide backward on the icy road. Defendant then accelerated to avoid slipping back into the police car. At that point he heard gunshots, turned into a nearby driveway, and ran into his house. He denied that his car struck plaintiff.

At the conclusion of the jury trial, the defendant requested that the fireman's rule be charged, that the jury be instructed that it is a policeman's duty to make arrests, and that if the jury should find that defendant's conduct was merely negligent or careless it must find in favor of defendant. The trial court refused to charge the fireman's rule on the ground that it was inapplicable to the facts of the case.

The jury returned a verdict in favor of plaintiffs. It found defendant 90% negligent and plaintiff officer 10%. The officer's damages were found to be $70,000 and his wife's $5,000. The trial court adjusted the damages in conformity with the findings

as to comparative negligence and entered judgment accordingly. On appeal, the Appellate Division, in an opinion reported at 174 N.J. Super. 619 (1980), also held that the fireman's rule was inapplicable, and affirmed the judgment in favor of plaintiffs. We granted certification, 85 N.J. 470 (1980), and now affirm.

The fireman's rule is generally followed throughout the United States.*fn3 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 (1960). A substantial number of states have also extended the rule to policemen. Id. at 1221; e.g., Walters v. Sloan, 20 Cal. 3d 199, 142 Cal.Rptr. 152, 571 P. 2d 609 (Sup. Ct.1977). The precise basis for the rule varies from jurisdiction to jurisdiction. Some states take the position that a fireman who enters upon premises in the discharge of his duty has the status of a licensee and is owed by the property owner only that duty which is owed a licensee. E.g., Whitten v. Miami-Dade Water & Sewer Auth., 357 So. 2d 430, 432 (Dist.Ct.App.Fla.1978), cert. den., 364 So. 2d 894 (Fla.1978); Pallikan v. Mark, 163 Ind.App. 178, 179, 322 N.E. 2d 398, 399 (Ct.App.1975). Others classify firemen as invitees. E.g., Horcher v. Guerin, 94 Ill.App. 2d 244, 246-247, 236 N.E. 2d 576, 578 (App.Ct.1968); Strong v. Seattle Stevedore Co., 1 ...


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