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Berko v. Freda

New Jersey Superior Court, Appellate Division


Decided: January 25, 1982.

JOHN BERKO, PLAINTIFF-APPELLANT,
v.
RALPH FREDA, DEFENDANT-RESPONDENT, AND PAUL HARRIGAN, DEFENDANT

On appeal from the Superior Court of New Jersey, Law Division, Union County, whose opinion is reported at 172 N.J. Super. 436 (Law Div. 1980).

Michels, McElroy and J. H. Coleman.

Per Curiam

[182 NJSuper Page 396] We affirm the summary judgment of the Law Division solely on the ground that the fireman's rule applies to a policeman in

[182 NJSuper Page 397]

the context of this case, substantially for the reasons expressed by Judge Griffin in Part II of his written opinion reported in Berko v. Freda , 172 N.J. Super. 436, 440-442 (Law Div. 1980). See Trainor v. Santana , 86 N.J. 403, 407-408 (1981) (commenting on dictum in the Appellate Division's opinion in Trainor which criticized the trial court's application of the fireman's rule in this case and expressly holding that Hill v. Yaskin , 75 N.J. 139 (1977), "lacked precedential value insofar as the application of the fireman's rule [to policeman] was concerned").

Since we have affirmed the judgment on the basis that the fireman's rule applied to the policeman in the circumstances of this case, it is unnecessary for us to consider the other ground advanced by the trial judge in support of the summary judgment, to wit, that "as a matter of law, a reasonably prudent person would not foresee that his act of leaving the keys in the car would result in the use of the car as a weapon." Berko v. Freda, supra , 172 N.J. Super. at 439. Our failure to consider this issue should not be construed as an approval of the trial judge's holding with respect thereto. Cf. Trentacost v. Brussel , 82 N.J. 214, 220-223 (1980); Braitman v. Overlook Terrace Corp. , 68 N.J. 368, 380-383 (1975); Zinck v. Whelan , 120 N.J. Super. 432, 444-451 (App.Div.1972).

Affirmed.

19820125


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