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McCarthy v. Ehrens

Decided: June 6, 1986.

NONA MCCARTHY, INDIVIDUALLY, AND AS ADMINISTRATRIX OF THE ESTATE OF JOHN P. MCCARTHY AND AS ADMINISTRATRIX AD PROSEQUENDUM FOR THE HEIRS AT LAW OF JOHN P. MCCARTHY, DECEASED; PLAINTIFF,
v.
HENRY EHRENS, SEALED UNIT PARTS COMPANY, ANDREW I. CRAWFORD, JAGUAR, ROVER TRIUMPH, INC. AND JOHN DOE (NAME BEING FICTITIOUS AND UNKNOWN), DEFENDANTS



Villanueva, J.s.c.

VILLANUEVA

The issue is whether a driver loses the immunity of the fireman's rule when a policeman, who was dispatched to investigate the drunk driver stalled on the highway, is injured by another motorist during the policeman's chase of the drunk driver.

This lawsuit arose out of a series of events, which began with a radio dispatch to troopers (including plaintiff's decedent) regarding a drunk driver stopped at a toll booth on the New Jersey Turnpike.

As the troopers approached the toll booth, defendant Crawford (driving a Jaguar) fled the scene. Although the troopers gave chase, Crawford refused to stop and ultimately crashed into the center guardrail of the turnpike. Trooper McCarthy ran across three lanes of the turnpike in order to render assistance to the Jaguar operator. He then returned to the troop car, advised what was needed and stated that he would arrest the driver of the Jaguar while Trooper McClain flared the area. As Trooper McCarthy was again crossing the highway, Ehrens' vehicle struck him, resulting in his death.

Nature of This Motion for Summary Judgment.

Defendants, Andrew Crawford and Jaguar, Rover Triumph, Inc., move for summary judgment alleging that plaintiff has failed to state a claim upon which relief can be granted and that the fireman's rule bars plaintiff from asserting a claim based on Crawford's negligence. Defendants contend that there was only a single act of negligent operation of a motor vehicle, to wit, driving under the influence of alcohol, which began when Crawford started driving home that evening. They also contend that plaintiff's decedent was injured while investigating the very occurrence which occasioned his presence at the scene.

Plaintiff contends that the fireman's rule does not apply because (1) Crawford*fn1 committed subsequent acts of misconduct which proximately caused Trooper McCarthy's death; (2) the act of drunk driving, an inherently dangerous activity, should be an exception to the fireman's rule; and (3) this defendant's conduct, in being so drunk while driving, constituted wanton and willful misconduct, which is an exception to the fireman's rule.

The court concludes that the subsequent conduct of Crawford after the troopers were dispatched to his car as well as such wanton and willful conduct (if proved) are both exceptions to the fireman's rule.

Statement of Facts.

This law suit was instituted by plaintiff, Nona McCarthy, as administratrix and as the administratrix ad prosequendum for the estate of John P. McCarthy, as a result of the wrongful death of Trooper McCarthy. On September 24, 1982, Trooper McCarthy and Trooper Lawrence McClain were summoned to the New Jersey State Turnpike by a radio call concerning a

drunk driver (defendant, Andrew Crawford), whose car was stopped at the toll booths at interchange 18W. Trooper McClain was driving a state police vehicle in which his partner Trooper McCarthy was a passenger. As the troopers approached northbound exit 18W, their intended destination, they saw a Jaguar (leased by defendant Crawford from Jaguar, Rover Triumph, Inc.) with two flat tires traveling on the right hand shoulder of the southbound lane. Furthermore, despite the fact that it was approaching midnight, the car had no headlights on. When the troopers reached their intended destination, they were forced to alter their plans and pursue Crawford's vehicle since it had left the interchange and was proceeding south. They made a U-turn and pulled up alongside his vehicle which was still moving erratically on the right-hand shoulder going southbound on the turnpike. With their overhead lights flashing, they spoke to the operator through their loudspeaker system in an attempt to stop his car from traveling further.

Trooper McClain was driving the troop car on the right shoulder while they attempted to stop Crawford's vehicle. Suddenly and without any warning, Crawford traveled across three lanes of the turnpike ultimately crashing into the center guardrail on the inside lane of the turnpike. Since the police vehicle was parallel to the Crawford vehicle, but on the opposite shoulder of the turnpike, the troopers left their car on the right shoulder while investigating Crawford's accident at the guardrail on the left shoulder. The police vehicle had been directly behind Crawford's vehicle when it was on the right shoulder until Crawford suddenly and without warning moved his vehicle to the opposite side of the highway. Trooper McClain did not move the troop car across the turnpike due to the hazard involved in backing up on the turnpike and having to cross three lanes to reach the Jaguar.

Trooper McCarthy crossed the three lanes of the turnpike on foot, found that defendant Crawford was drunk and then returned to the troop car to explain the situation to Trooper

McClain and request a tow truck to take the Jaguar to the police station.

While crossing the turnpike again on foot to return to the Jaguar, Trooper McCarthy was struck by a vehicle operated by defendant, Henry Ehrens, which was owned by defendant, Sealed Unit Parts Company.*fn2

Trooper McCarthy was pronounced dead on arrival at ...


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