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Entwistle v. Draves

Decided: May 21, 1986.

JAMES ENTWISTLE, GAIL ENTWISTLE PER QUOD, AND FRANCIS PAPAPIETRO, PLAINTIFFS-APPELLANTS,
v.
ROGER DRAVES, D/B/A NORTH FORTY TAVERN, RAYMOND LUBY AND ED'S MANOR TAVERN, INC., A NEW JERSEY CORPORATION, DEFENDANTS-RESPONDENTS. KEVIN OSBORNE AND GERALDINE OSBORNE, PLAINTIFFS-APPELLANTS, V. ROGER DRAVES, INDIVIDUALLY AND D/B/A NORTH FORTY TAVERN, NORTH FORTY TAVERN, AND ED'S MANOR TAVERN, INC., A NEW JERSEY CORPORATION, DEFENDANTS-RESPONDENTS. JOHN LENSI AND FRANCES LENSI, PLAINTIFFS-APPELLANTS, V. ROGER DRAVES, INDIVIDUALLY AND D/B/A NORTH FORTY TAVERN, NORTH FORTY TAVERN, AND ED'S MANOR TAVERN, INC., A NEW JERSEY CORPORATION, DEFENDANTS-RESPONDENTS



On certification to the Superior Court, Appellate Division, whose opinion is reported at 200 N.J. Super. 1 (1985).

For affirmance -- Chief Justice Wilentz, and Justices Pollock, Clifford, O'Hern, Garibaldi and Stein. For reversal -- Justice Handler. The opinion of the Court was delivered by Stein, J. Clifford, J., concurring in judgment. Handler, J., dissenting.

Stein

This is a companion case to Mahoney v. Carus Chem. Co., 102 N.J. 564 (1986), which we also decide today. As did Mahoney, this case concerns the application of the fireman's rule to bar recovery for injuries allegedly caused by willful and wanton misconduct.

Plaintiff police officers responded to a call for assistance from the bartender of the North Forty Tavern in New Milford.

When they arrived at the tavern, they were assaulted by an unruly crowd of patrons that had congregated in the parking lot. The officers sustained personal injuries of varying severity. Plaintiff Entwistle's injuries were serious enough to require his disability retirement from the police department.

Plaintiffs sued the tavern owner, the bartender, and the owner of the property. Their original complaint alleging ordinary negligence was dismissed on the basis of the fireman's rule, Krauth v. Geller, 31 N.J. 270 (1960), and its extended application to police officers, Berko v. Freda, 93 N.J. 81, (1983). Plaintiffs moved to amend the original pleadings to include a cause of action for willful and wanton misconduct. Defendants cross-moved for summary judgment. In support of their motion, plaintiffs relied on deposition testimony that disclosed a substantial number of prior occasions on which defendants had sought police assistance to clear the parking lot of violent patrons. Plaintiffs contended that defendants' failure to have an adequate number of employees present on the night in question, in the context of the past record of rowdiness and violence, constituted willful and wanton misconduct.

The trial court denied plaintiffs' motion to amend their complaint and granted summary judgment to defendants, holding that the fireman's rule was a bar to liability even if the incident requiring the officer's presence was the result of willful and wanton misconduct. 194 N.J. Super. 571, 574 (1984). The Appellate Division affirmed, 200 N.J. Super. 1 (1985), and we granted certification. 102 N.J. 310 (1985).

In Mahoney v. Carus Chem. Co., supra, we held that the fireman's rule does not bar recovery for injuries occasioned by a fire that is caused by willful and wanton misconduct. However, such conduct involves an extraordinary degree of culpability. Plaintiffs' proposed amended complaint restates the factual allegations of the original pleading and affixes the "willful and wanton" label to facts previously characterized as simple negligence. Plaintiffs acknowledge that their motion to amend

the complaint was made after "depositions of all parties who have relevant information [had] been taken" and that "the gist of the action and surrounding factual patterns are not different." The bar of the fireman's rule may not be avoided by recasting merely negligent conduct as "willful and wanton." To constitute willful and wanton misconduct, plaintiffs must show that "there has been a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences." Mahoney v. Carus Chem. Co., supra, 102 N.J. at 575 (quoting Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962)).

The papers in support of the motion to amend the complaint, filed after discovery was substantially completed, disclose the essential elements of plaintiffs' proposed cause of action. After drawing all reasonable inferences in favor of the plaintiffs, see Jersey City v. Hague, 18 N.J. 584, 587-88 (1955), we conclude as a matter of law that ...


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