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Alessio v. Fire & Ice Inc.

Decided: November 8, 1984.

DOMINICK ALESSIO AND CAROL ALESSIO, PLAINTIFFS-RESPONDENTS,
v.
FIRE & ICE, INC., DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Bergen County.

Pressler, Brody and Havey. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

[197 NJSuper Page 24] This is an appeal, on leave granted, from the denial of defendant's motion for summary judgment dismissing the complaint. The issue before us involves the so-called fireman's rule. The rule, as originally articulated in Krauth v. Geller, 31 N.J. 270 (1960), denies a firefighter, injured while fighting a fire, a right of recovery from the person whose ordinary negligence caused the fire. In Berko v. Freda, 93 N.J. 81 (1983), the rule was extended to police officers, denying an on-duty officer who is injured while responding to a police emergency a cause of action against the person whose ordinary negligence resulted in the situation which required intervention. The question raised by this appeal is whether the rule applies to

off-duty police officers as well. We conclude that this question is not subject to a simple categorical answer but rather that the applicability of the rule depends on a realistic determination of whether, in the particular circumstances, the off-duty officer was acting as a police officer or as a volunteer.

Plaintiff Dominick Alessio,*fn1 a police officer of the Borough of Fairview, instituted this personal injury action against defendant Fire & Ice, Inc., the owner of a tavern in that municipality. Plaintiff seeks to recover for injuries he sustained when, at the request of a tavern employee, he attempted to quell a disturbance at the tavern to which he had come as a patron while off duty and out of uniform. The gravamen of plaintiff's action is his claim that defendant's negligence in not properly supervising the premises and in serving alcohol to intoxicated patrons was the proximate cause of the injuries he suffered.

Defendant's first motion for summary judgment, based on the contention that this action was precluded by the fireman's rule, was granted. Plaintiff appealed, and we reversed in an unreported decision in which we noted that the fireman's rule had not been extended by the decisional law to "off-duty policemen under all circumstances." It was our conclusion, based on the record then before us, that there was a question of fact as to plaintiff's actual status at the time of the assault. We therefore remanded for "full discovery and trial, if necessary." Following the remand, defendant again moved for summary judgment, this time submitting the full transcript of plaintiff's deposition, which constituted the bulk of pretrial discovery. Its argument was that the record as so supplemented demonstrated beyond factual dispute that plaintiff was acting as a police officer when he was injured and hence that the fireman's rule applied. A different judge considered the second motion and denied it on the ground that the record did not exclude the possibility that the circumstances of the assault

rendered the fireman's rule inapplicable. More particularly, he was apparently of the view that the facts, viewed most favorably to plaintiff, would support an inference that the assault may have been caused by an act of negligence committed subsequent to the creation of the original hazard. We affirm the denial of the motion, but for different reasons.

The record shows that plaintiff had been a Fairview police officer for almost fifteen years when this incident occurred. His previous police experience in dealing with tavern disturbances had all been while on duty. On these occasions he was dispatched by his headquarters to the scene with his partner, both presumably in uniform. On the night in question, plaintiff had gone to the tavern while off duty to meet a friend. He was not in uniform but was carrying his badge and his service revolver, as required by department regulation. As he entered the tavern he noticed four or five men standing on the sidewalk just outside the tavern door. These people were engaged in a verbal confrontation with a group of two men and two women who were standing just inside the door. Plaintiff made his way to the bar to look for his friend and was almost immediately approached by the tavern "bouncer" who knew him to be a local police officer. The bouncer, apparently concerned about the escalating intensity of the confrontation, asked him to assist in quieting down the two groups.

Plaintiff accompanied the bouncer to the entrance-way and spoke first to the group inside the tavern. The two men were both drinking and were verbally threatening and cursing at the group outside. Plaintiff believed that they were intoxicated. He showed them his badge, identified himself as a police officer, and tried to quiet them down, telling them they had had enough to drink and should leave. Believing that he had defused that group, plaintiff then went out the door to talk to the group of men on the sidewalk. He spoke to them briefly, suggested that they disperse and started to walk away from the tavern with them. At that point, one or more of the

"inside" combatants came rushing out of the tavern, assaulted plaintiff from behind, and brutally beat him.

While the record is not explicit as to the lapse of time between plaintiff's exiting of the tavern and the physical attack upon him, it appears, at least inferentially, that the sequence of the described events was uninterrupted and that only moments had passed. The record also does not indicate any particular reason for the attackers to have taken the action they did. Nor does it indicate whether the attack on plaintiff was part of the course of continuous events which began with the verbal confrontation between the two groups or was induced or motivated by some independent cause. Plaintiff, however, makes no suggestion that there was in fact any such independent cause. We therefore address the issue before us on the assumption that an efficient producing cause of ...


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