On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
McElroy, Dreier and Shebell.
Plaintiffs, police officers of New Milford, responded to a call to quell an unruly group of young and presumably intoxicated patrons at the North Forty Tavern in that town. Each received injuries of varying degree in their attempt to perform their duty to uphold the law and keep the public peace. They sued the defendants who are respectively the tavern keeper, the owner of the property on which the establishment is located, and the bartender who allegedly caused those who injured plaintiffs to be intoxicated or allowed those patrons to reach a state where police intervention was required.
The initial suit was predicated on ordinary negligence and was defeated by a motion for summary judgment granted to defendants under the public policy principles of Krauth v. Geller, 31 N.J. 270 (1960), the so-called fireman's rule, more recently extended by the Supreme Court to policemen injured in the course of their duties by Berko v. Freda, 93 N.J. 81 (1983). Compare Alessio v. Fire & Ice, Inc., 197 N.J. Super. 22 (App.Div.1984) (where this court declined to automatically apply the policy rule of non-recovery to a police officer attacked and injured by tavern brawlers when, at the tavern keeper's request, he attempted to calm a barroom disturbance while off duty, out of uniform and present at the tavern as a patron.)
Having failed upon assertions of ordinary negligence, the plaintiffs in the present case moved to amend their complaints to assert that the actions of defendants in serving the tavern brawlers and permitting their conduct to get out of hand
amounted to wilful, wanton misconduct and gross negligence.*fn1 Defendants countered with a renewed motion for summary judgment and Judge Van Tassel accepting, as he was obliged to do on such a motion, the proposition that plaintiffs could demonstrate extraordinary misconduct on the part of defendants, nevertheless held that the Berko rule barred plaintiffs' claims for damages. Entwistle v. Draves, 194 N.J. Super. 571 (Law Div.1984). The undisputed facts are set forth in the decision of Judge Van Tassel and need not be further addressed by us. We affirm that determination substantially for the reasons set forth in his reported opinion. We add to his comprehensive discussion of the issues raised the conclusions drawn by this court in Ferraro v. Demetrakis, 167 N.J. Super. 429, 432, 433 (App.Div.1979), certif. den. 81 N.J. 290 (1979), a case in which recovery was sought for the wrongful death of two firemen caused by smoke inhalation from a fire started by a malfunctioning oil burner. There we stated:
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 such conduct in that case. 31 N.J. at 277. Moreover, it implied that the wantonness exception was not tenable: "In the context of the policy considerations which underlie the rule of non-liability for negligence with respect to the origination of a fire, it is debatable whether degrees of culpability are at all pertinent." Ibid. Absent intentional, malicious conduct, therefore, we conclude that wanton conduct with respect to the cause of a fire would not require waiver of the general rule. [ Ibid. ]
Plaintiffs' brief appears to argue an issue not raised below, at least it is not directly discussed in Judge Van Tassel's opinion. In order to dispose of this matter we will address this contention. Plaintiffs direct our attention to N.J.A.C. 13:2-23.6(a) which provides:
No licensee shall engage in or allow, permit or suffer in or upon the licensed premises:
1. Any lewdness or immoral activity;
2. Any brawl, act of violence, disturbance, or ...