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Rosa v. Dunkin'' Donuts of Passaic

Decided: January 15, 1991.

JOSE ROSA AND MARIE ROSA, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
DUNKIN' DONUTS OF PASSAIC AND CARMEL ADITYA, A/K/A CARMEL ADITRIA, DEFENDANTS-RESPONDENTS, AND JOSEPH TAVARES, ABC CORPORATION, AND JOHN DOE (FICTITIOUS NAMES REPRESENTING THE OWNERS AND/OR OPERATORS OF DUNKIN' DONUTS, PASSAIC, NEW JERSEY), DEFENDANTS



On certification to the Superior Court, Appellate Division.

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

Garibaldi

In Krauth v. Geller, 31 N.J. 270, 273, 157 A.2d 129 (1960), we adopted the fireman's rule that "the owner or occupier is not liable to a paid fireman for negligence with respect to the creation of a fire." Id. at 273, 157 A.2d 129. In Berko v. Freda, 93 N.J. 81, 459 A.2d 663 (1983), we extended the rule to police officers.

This appeal concerns the scope of the immunity granted by the fireman's rule. No act of negligence brought plaintiff, a police officer, to the scene of his injury. In response to an emergency medical assistance call from the defendants' store, he slipped on a powdery white substance scattered on the kitchen floor of the store. He claims that the fireman's rule bars a suit against the property owner or occupier only "for an act of ordinary negligence that creates the occasion for the presence of a firefighter or a police officer at the place where he is injured." Berko v. Freda, supra, 93 N.J. at 84, 459 A.2d 663. Defendants claim that the fireman's rule also bars a suit against a property owner or occupier for an act of ordinary negligence that arises out of the normal course of a police officer's duty. The issue, therefore, is: does the fireman's rule

bar liability only where the injuries arise from an ordinary act of negligence that is the reason for the firefighter or police officer being on the premises, or does it likewise bar liability where the injuries arise from an ordinary act of negligence that firefighters and police in the normal course of their duties should expect to meet?

I

The facts are essentially undisputed. While on duty, plaintiff, Jose Rosa, a police officer in Passaic, responded to a call for emergency medical assistance for a sick employee at defendants' Dunkin' Donuts store in Passaic. On arriving at the store Officer Rosa found an unconscious employee. While he was carrying the unconscious employee on a stretcher to the police ambulance, Officer Rosa's left foot slipped on a white powdery substance (presumably confectioner's sugar or flour) on the kitchen floor of the donut shop. Officer Rosa recalls no conscious recognition of the powder's presence before his fall; however, there is no indication or insinuation that it was not present when he arrived at the scene.

Officer Rosa received unspecified injuries as a result of slipping while transporting the sick employee to the ambulance. His injuries form the basis of a workers' compensation claim. His injuries also form the basis of this lawsuit.

On July 21, 1984, Officer Rosa filed a lawsuit based on these unspecified injuries against defendants' Dunkin' Donuts of Passaic and Carmel Aditya, the owner of the franchise.*fn1 He alleged that the defendants had caused him to slip and fall by negligently allowing the white powdery substance to remain scattered on the kitchen floor, thereby creating a slippery floor. He contended that the white powdery substance on the floor

created a foreseeable risk of avoidable future harm. His contention forms a classic, ordinary negligence claim.

On November 3, 1987, defendants moved for summary judgment, claiming that the fireman's rule barred plaintiff's action. Although many statements of that rule apparently limit it to barring claims based upon the very negligence that occasioned the rescuer's presence, see Berko v. Freda, supra, 93 N.J. at 85, 459 A.2d 663; Krauth v. Geller, supra, 31 N.J. at 273, 157 A.2d 129; Cella v. Interstate Properties, 232 N.J. Super. 232, 240, 556 A.2d 1262 (App.Div.1989); Chipps v. Newmarket Condominium Ass'n, 228 N.J. Super. 144, 147, 549 A.2d 66 (Law Div.1988), defendants cite recent cases that held it applicable to situations in which the officer's presence was occasioned by some factor other than the negligence that caused his or her injury. Maryland Casualty Co. v. Heiot, 224 N.J. Super. 441, 446, 540 A.2d 920 (Law Div.1988); Williams v. Levitt, 213 N.J. Super. 604, 607, 517 A.2d 1242 (Law Div.1986).

The trial court granted defendants' motion. Officer Rosa appealed. The Appellate Division unanimously rejected Officer Rosa's contention that his claim fell into a standard exception to the fireman's rule.

[The plaintiffs] urge that the injury sustained here falls squarely within the exception carved out in Berko for negligence which did not create the occasion for the public employee's presence. Berko, supra, 93 N.J. at 85 [459 A.2d 663]. In other words they view the slip and fall as entirely distinct from the reason for Rosa's presence at defendant's premises. We disagree. In our view Rosa's fall was a risk inherent in the situation to which he responded (a rescue in the kitchen of a doughnut shop) and recovery was therein precluded under the "Fireman Rule."

We granted certification, 117 N.J. 626, 569 A.2d 1330 (1989), and now affirm.

II

The fireman's rule is followed throughout the country. Berko v. Freda, supra, 93 N.J. at 83, 459 A.2d 663. Since this Court adopted the rule in 1960, it has been "a fixture in our jurisprudence." Ibid.

In adopting the rule, we eschewed the technical formalistic classifications used to define varying duties of care landowners owe to trespassers, licensees, or invitees. We recognized that the officer's "status being sui generis, justice is not aided by appending an inappropriate label and then visiting consequences which flow from a status artificially imputed." Krauth v. Geller, supra, 31 N.J. at 273, 157 A.2d 129.

In Krauth, Chief Justice Weintraub set forth the policy underlying the fireman's rule:

The rationale of the prevailing rule is sometimes stated in terms of "assumption of risk" used doubtless in the so-called "primary" sense of the term and meaning that the defendant did not breach a duty owed, rather than that the fireman was guilty of contributory fault in responding to his public duty. Stated affirmatively, what is meant is that it is the fireman's business to deal with that very hazard and hence, perhaps by analogy to the contractor engaged as an expert to remedy dangerous situations, he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid. Probably most fires are attributable to negligence and in the final analysis the policy decision is that it would be too burdensome to charge all who carelessly cause or fail to prevent fires with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created, occurrences. Hence, for that risk, the fireman should receive appropriate compensation from the public he serves, both in pay which reflects the hazard and in workmen's compensation benefits for the consequences of the inherent risks of the calling.

[31 N.J. at 273-74, 157 A.2d 129 (citations omitted).]

We continue to recognize the fundamental fairness of the Krauth public-policy rationale that supports the fireman's rule. In Berko v. Freda, supra, we held that the rule barred a police officer's suit against a car owner who negligently left keys in his car for the injuries inflicted on the officer by the youth who stole the car. In Berko, we stated:

We perceive more than mere dollars-and-cents considerations underpinning the fundamental justice of the "fireman's rule." There is at work here a public policy component that strongly opposes the notion that an act of ordinary negligence should expose the actor to liability for injuries sustained in the course of a public servant's performance of necessary, albeit hazardous, public duties. In the absence of a legislative expression of contrary policy, a citizen should not have to run the risk of a civil judgment against him for negligent acts that occasion the presence of a firefighter at the scene of a carelessly-set

fire or of a police officer at a disturbance or unlawful incident resulting from negligent conduct. [ Id. at 88-89, 459 A.2d 663].

In a more recent case, Mahoney v. Carus Chemical Co., 102 N.J. 564, 510 A.2d 4 (1986), we held that "the immunity of the fireman's rule does not extend to one whose willful and wanton misconduct created the hazard that caused the injury to the fireman or policeman." Id. at 579, 510 A.2d 4. Although we narrowed the scope of the rule, we reaffirmed our belief in the underlying policy considerations of the fireman's rule:

Furthermore, considerations of fairness support the grant of immunity from suit by firemen or policemen to a citizen whose conduct is merely negligent. Hazards negligently created are staples of the duties firemen and policemen are expected to perform. Although the citizen immunized is not free from fault, the quality of fault is not so severe that the grant of immunity from liability for injuries sustained by firemen and policemen in the ordinary course of their duties offends our common sense of justice. [ Id. at 573-74, 510 A.2d 4].

The policies underlying the fireman's rule are simple, straightforward ones. The accidents and emergencies occasioning the presence of firefighters and police officers are a sad fact of life not soon to be eliminated. Berko, supra, 93 N.J. at 86, 459 A.2d 663. They are, however, also the very reason for the existence of the public forces of the "finest" and the "bravest." "Both are paid to confront crises and allay dangers created by an uncircumspect citizenry. . . . Citizens summon police and firefighters to confront danger. Governmental entities maintain police and fire departments in anticipation of those inevitable physical perils that burden the human ...


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