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Berko v. Freda

Decided: May 9, 1983.

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



On certification to the Superior Court, Appellate Division, whose opinion is reported at 182 N.J. Super. 396 (1982).

For affirmance -- Chief Justice Wilentz and Justices Clifford, Pollock and O'Hern. For reversal and remandment -- Justices Schreiber and Handler. The opinion of the Court was delivered by Clifford, J. Handler, J., dissenting. Justice Schreiber joins in this opinion.

Clifford

[93 NJ Page 82] In Krauth v. Geller, 31 N.J. 270 (1960), this Court adopted the so-called "fireman's rule," applicable in tort cases. That rule holds that because it is a firefighter's business to deal with the

usual hazards involved in fighting fires, a firefighter "cannot complain of negligence in the creation of the very occasion for his engagement." Krauth, supra, 31 N.J. at 273-74. The effect of the rule is to insulate one whose negligence causes a fire from liability for injuries sustained by a firefighter while extinguishing the blaze.

The specific question before us is whether the "fireman's rule," now a fixture in our jurisprudence, see, e.g., Walsh v. Madison Park Properties, Inc., 102 N.J. Super. 134, 138 (App.Div.1968), should be extended to police officers. The trial court applied the rule as against the plaintiff-policeman and entered summary judgment in favor of defendant Freda. Berko v. Freda, 172 N.J. Super. 436 (Law Div.1980). The Appellate Division affirmed. Berko v. Freda, 182 N.J. Super. 396 (1982). We granted plaintiff's petition for certification, 89 N.J. 446 (1982), and now affirm.

I

On December 18, 1976 defendant Freda parked a Cadillac automobile in a supermarket parking lot on Newark Avenue in Elizabeth. He left the keys in the ignition. Defendant Harrigan and another juvenile stole the car. At about 7:00 p.m. that same day plaintiff, John Berko, and a fellow police officer, having earlier been informed of the reported theft, spotted the juveniles in the stolen car. They pursued it and, after a perilous high-speed chase, eventually brought it to a halt. While Officer Berko was attempting to remove Harrigan from the car through the open door on the driver's side, Harrigan's foot hit the gas pedal. Berko was dragged forward by the car and suffered injuries. He brought suit against Freda and Harrigan, alleging that Freda was negligent in parking the vehicle with the keys in the ignition and that Harrigan was negligent in his operation of the stolen car.

The trial court granted summary judgment in favor of defendant Freda on two grounds: the intervening conduct by

Harrigan was not foreseeable, 172 N.J. Super. at 439, and the "fireman's rule" was applicable to police officers and precluded recovery, id. at 442. The Appellate Division's affirmance was solely on the ground that the "fireman's rule applies to a policeman in the context of this case * * *." 182 N.J. Super. at 396-97. Plaintiff challenges that determination, asserting that the "fireman's rule" has no justification in today's society, and in any event it should not be extended to include policemen. His argument is three-pronged: (1) the prevalence of liability insurance is a recent development having great impact on the present-day viability of the Krauth decision; (2) the "fireman's rule" is unsound because it relies on the tort doctrine of assumption of risk; and (3) it "makes no sense" to bar a fireman from instituting a third-party action while allowing other members of the public work force to maintain such actions.

The first of the above-stated contentions does not call for comprehensive treatment. To the extent that it suggests that homeowner's coverage is of recent vintage, it lacks support in the record and is contrary to our understanding of the true state of affairs. To the extent that it implies that the Krauth Court was unmindful of the role of liability insurance in the development of our tort law, it is wholly inaccurate. See Eule v. Eule Motor Sales, 34 N.J. 537, 540 (1961); Hastings v. Hastings, 33 N.J. 247, 253-54 (1960) (Jacobs, J., dissenting).

As to plaintiff's remaining contentions, we likewise reject them and hold that as to a defendant in the position of Freda in this case, the "fireman's rule" bars suit for an act of ordinary negligence that creates the occasion for the presence of a firefighter or a police officer at the place where he is injured.

II

Krauth v. Geller, supra, held that a fireman may not recover from an owner or occupier of land for negligence with respect to the creation of the fire on that property. Until today's challenge by the dissent the respectability of this rule has remained

unquestioned in New Jersey for more than two decades. It is well-established, being generally followed throughout the United States. See Trainor v. Santana, 86 N.J. 403, 406 (1981). Although the "fireman's rule" developed within the context of landowner liability, 2 F. Harper & F. James, The Law of Torts ยง 27.14 at 1501 (1956), it is clear that the formalistic classification of invitees, licensees and trespassers no longer forms the basis of the rule. Chief Justice Weintraub wrote in Krauth:

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. 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. [31 N.J. at 273-74 (citations omitted).]

This doctrine speaks only to the negligence that started the fire. Case law draws a distinction between injuries stemming from the negligence that brought the firefighters or police to the scene in the first place and injuries suffered from independent causes that may follow. Krueger v. City of Anaheim, 130 Cal.App. 3d 166, 170, 181 Cal.Rptr. 631, 633 (1982). "[T]hus, a police officer who while placing a ticket on an illegally parked car is struck by a speeding vehicle may maintain action against the speeder but the rule bars recovery against the owner of the parked car for negligently parking." Walters v. Sloan, 20 Cal. 3d 199, 202 n. 2, 571 P. 2d 609, 611 n. 2, 142 Cal.Rptr. 152, 154 n. 2 (1977). An arsonist or a pyromaniac who tried to restrain the firefighter from entering a burning house could be liable for assault, for a firefighter does not assume the risk of assault nor does the assault occasion his presence.

A further illustration of the principle that the "fireman's rule" does not bar a suit for any negligence that may occur after the firefighters have reached the fire is found in Lipson v. Superior Court of Orange County, 31 Cal. 3d 362, 644 P. 2d 822, 182 Cal.Rptr. 629 (1982). In Lipson firefighters arriving at a boilover in a chemical plant were told by the owner that no toxic chemicals were in the building. The building did in fact store toxic chemicals, fumes from which injured the firefighters. Since the owner's misrepresentation was a subsequent act of misconduct that enhanced the risk of fighting the boilover, distinct from the negligence that caused the boilover and occasioned the firefighters' presence, the court did not apply the "fireman's rule". A firefighter, wrote the court, assumes only those risks that are known or can be reasonably anticipated at the site of the fire. Id. at 371, 644 P. 2d at 828, 182 Cal.Rptr. at 635. The risk that the owner of a burning building will deceive the firefighters as to the nature of the hazard is not an inherent part of the job and is not a risk the firefighters knowingly and voluntarily assumed. Ibid.

The question presented here -- whether the "fireman's rule" should be applied to policemen -- was left unanswered in Trainor v. Santana, supra, 86 N.J. at 407. The similarity between firefighters and police officers compels the extension of the rule to the latter. Both are paid to confront crises and allay dangers created by an uncircumspect citizenry, a circumstance that serves to distinguish firefighters and police from most other public employees.*fn1 Citizens summon police and firefighters to confront danger. Governmental entities maintain police

and fire departments in anticipation of those inevitable physical perils that burden the human condition, whereas most public employment posts are created not to confront dangers that will arise but to perform some other public function that may incidentally involve risk. In keeping with this distinction many jurisdictions have extended the rule to the police. See, e.g., Walters v. Sloan, supra; Garcia v. City of South Tucson, 131 Ariz. 315, 640 P. 2d 1117 (1982); Hannah v. Jensen, 298 N.W. 2d ...


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