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Cella v. Interstate Properties

Decided: April 13, 1989.

JOSEPH CELLA, PLAINTIFF-APPELLANT,
v.
INTERSTATE PROPERTIES, JOHN SMITH (A FICTITIOUS NAME FOR AGENT, SERVANT AND/OR TENANT), JAMES SMITH (A FICTITIOUS NAME FOR MAINTENANCE COMPANY), JOHN ROES (A FICTITIOUS NAME AS AGENT, LESSEE, CONTROLLER AND/OR MAINTAINER, JOHN DOE (A FICTITIOUS NAME AS INSTALLER, RETAILER), INDIVIDUALLY, JOINTLY, SEVERALLY AND/OR IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.

Antell, Dreier and Conley (temporarily assigned). The opinion of the court was delivered by Dreier, J.A.D.

Dreier

Plaintiff appeals from a summary judgment granted in the Law Division dismissing his negligence complaint against Interstate Properties, the owner and operator of a shopping center located in Washington Township. At the time of his accident, plaintiff was a police sergeant on patrol. After calling on his radio for a backup, plaintiff exited his vehicle to investigate a suspicious car located in the shopping center's parking lot. He fell when he slipped on ice that had formed in a depressed area of the lot.

We are somewhat hampered in our decision of this matter by the lack of a detailed record. Plaintiff's counsel has filed a certification pursuant to R. 2:5-3(e) in lieu of a transcript. By

that certification we are informed that the decision was rendered on the return date of a motion to strike the complaint by virtue of the application of the "fireman's rule." This motion, basically one for summary judgment, was decided without oral argument on the basis of briefs submitted to the trial judge. No certifications were submitted. However, attached to the trial briefs were an extract from plaintiff's answers to interrogatories (submitted by defendant) and plaintiff's initial expert's report claiming that the lot was improperly maintained in that it contained a depression likely to collect water which would freeze in cold weather (submitted by plaintiff).*fn1 Plaintiff opposed the motion on the basis that the fireman's rule did not apply to this accident and that he had not completed discovery. Notwithstanding the requirements of R. 1:7-4 and 4:46-2 requiring an oral statement of reasons or a written opinion, the trial judge merely entered an order granting defendant's motion. We therefore do not have the benefit of his reasoning.

In analyzing the case before us, we first realize that plaintiff had not completed discovery. We will therefore assume that the facts plaintiff would finally be able to prove are those he was expecting to discover, namely, that the alleged negligently maintained condition (the broken pipe and collection of water which would freeze at appropriate temperatures) had existed for some time. Perhaps there had even been prior accidents at the site, thus putting the owner on notice of the dangerous condition. We further must give plaintiff all reasonable inferences that can be drawn from the facts. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954).

Defendant, however, might well assert that it should not be required to make any efforts to alleviate the slippery condition at 4:30 in the morning when it would be highly unlikely for any pedestrian to be on the property, since any implied invitation to the public would be limited to those hours just before the shopping center opened to just after it closed. Defendant might further claim that it was its policy to spread sand or salt over slippery areas of the parking lot before it opened in the morning and to inspect the lot during the day until the parking lot closed; thus it was not unreasonable to allow the slippery condition on the lot to go unattended at 4:30 a.m. Depending upon a jury's resolution of these factual issues, plaintiff may or may not prevail.

This case presents for adjudication, not a direct application of the fireman's rule, but rather a parallel issue never directly adjudicated in an appellate opinion, namely: What duty does a property owner owe to a police officer when the officer is investigating a situation not caused by the owner, and the accident occurs at a time when or location where no member of the public is expected to be present?

As noted in Mahoney v. Carus Chemical Co. Inc., 102 N.J. 564, 582 (1986):

Case law draws a distinction between injury stemming from the negligence that brought the firefighters or police to the scene in the first place, and injury suffered from independent causes that follow.

The Supreme Court, quoting from a California case where firefighters encountered dangerous chemicals after they were told there would be no toxic substances in the building, stated that "[a] fireman assumes only those hazards which are known or can reasonably be anticipated at the site of the fire." Id. at 582-583. See also Wietecha v. Peoronard, 102 N.J. 591, 595 (1986), a companion case to Mahoney, where the court reiterated "that independent and ...


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