Decided: October 21, 1988.
OLIVER BROWN TRUCKING COMPANY, INC.; OLIVER BROWN AND CARRIE BROWN, PLAINTIFFS,
FLEXON INDUSTRIES CORPORATION; ANTHONY LAMONT HAYES; CAROLYN HAYES, AS PARENT AND GUARDIAN FOR ANTHONY LAMONT HAYES; CAROLYN HAYES, INDIVIDUALLY; THOMAS JOSEPH KUKISH, JR.; PATRICIA MARIE BUCK, AS PARENT AND GUARDIAN FOR THOMAS JOSEPH KUKISH, JR.; AND PATRICIA MARIE BUCK, INDIVIDUALLY, CECIL ALLEN, PLAINTIFF, V. OLIVER BROWN TRUCKING COMPANY, INC., GILBERT LANGFORD, PLAINTIFF, V. OLIVER BROWN TRUCKING COMPANY, INC., DEFENDANT, LLOYD CROOKS, PLAINTIFF, V. OLIVER BROWN TRUCKING COMPANY, INC., DEFENDANT, WILLIAM WOLLEY, PLAINTIFF, V. OLIVER BROWN TRUCKING COMPANY, INC., DEFENDANT, ALLAN PRICE KIRBY, III, PLAINTIFF, V. OLIVER BROWN TRUCKING COMPANY, INC., DEFENDANT, PLYMOUTH APEX COMPANY AND FLEXON, PLAINTIFFS, V. OLIVER BROWN TRUCKING COMPANY, INC., DEFENDANT
This is defendant's motion for summary judgment seeking to bar the claims of plaintiffs, firemen who were injured during the course of fighting a fire, based on the application of the firemen's rule.
The primary question in this case is whether an owner of property who knowingly maintains a defective sprinkler system violates a duty to a fireman injured while on the premises fighting a fire.
The firemen's rule holds that an owner or occupier of property is not liable to a fireman for negligence with respect to the creation of a fire. Krauth v. Geller, 31 N.J. 270 (1960). The rule does not apply to willful and wanton conduct which is defined as a "deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences." Mahoney v. Carus Chemical Co., Inc., 102 N.J. 564, 575 (1986).
Plaintiffs are firemen who were injured as a result of the inhalation of noxious chemical fumes during the course of extinguishing a fire caused by an arsonist at defendant's premises. The premises stored combustible chemicals and contained a sprinkler system which was faulty and which violated both a local ordinance and a statute. Defendant was fully aware of this fact prior to the fire. The arsonist had gained entry into the premises through a door which defendant knew was unlocked. Plaintiffs contend that these facts constitute willful and wanton conduct for which defendant must respond to plaintiffs in damages.
This court disagrees. Neither the stored chemicals nor the faulty sprinkler system had anything to do with the intentional act of the arsonist in starting the fire. Nor have plaintiffs been able to point to any facts which would indicate that defendant was aware of prior entries into the building or of surrounding buildings to show that defendant was able to foresee the act of the arsonist. See Butler v. Acme Markets, Inc., 89 N.J. 270 (1982). There has been, therefore, no showing by plaintiffs that defendant's conduct was willful and wanton so as to take it out of the application of the firemen's rule.
Plaintiffs also argue, however, that irrespective of the question of negligence with regard to the creation of the fire, defendant's conduct in storing combustible material, and his knowing maintenance of a faulty sprinkler system, was an independent act of negligence which subjected plaintiffs to an
undue risk of injury for which he must respond to plaintiffs in damages.
The firemen's rule does not excuse an owner from liability where he is guilty of misconduct which is independent of the causes which started the fire, and which creates an undue risk of injury beyond those normally assumed by a firefighter.
Although there is virtual unanimity with respect to non liability for negligence as to the creation of fire, there is appreciable authority which would impose liability upon the land owner for negligence with respect to conditions creating undue risks of injury beyond those inevitably involved in fire fighting. [at 274]
And, in Berko v. Freda, 93 N.J. 81 (1983), the Supreme Court said:
Case law draws a distinction between injuries stemming from the negligence that brought the firefighters . . . to the scene in the first place and injury suffered from ...
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