On appeal from Superior Court, Law Division, Bergen County.
Pressler, Shebell and Skillman. The opinion of the court was delivered by Pressler, P.J.A.D.
This is a fireman's rule case. In Krauth v. Geller, 31 N.J. 270, 157 A.2d 129 (1960), the New Jersey Supreme Court adopted the rule which immunizes a landowner from liability for ordinary acts of negligence that cause an emergency exposing the responding firefighter to the risk of harm. In Berko v. Freda, 93 N.J. 81, 459 A.2d 663 (1983), the rule was applied to police officers. And in Rosa v. Dunkin' Donuts of Passaic, 122 N.J. 66, 583 A.2d 1129 (1991), the Supreme Court extended the rule to include within the scope of the immunity any negligent maintenance of the premises on which the emergency occurs, whether or not that negligence has a direct nexus to the cause of the emergency. The issue before us is whether the nonliability rule of Rosa applies to the negligent maintenance of a public right-of-way which the firefighter traverses in order to reach the site of the emergency. We conclude that it does not.
Plaintiff John Knoetig, whose wife Denise sues per quod, appeals from a summary judgment dismissing his complaint based on the trial Judge's application of the fireman's rule. The facts as appear on the record of the motion proceedings, viewed most favorably to plaintiff, are as follows. Plaintiff is a firefighter employed by the town of Guttenberg. Shortly after midnight on January 31, 1987, and while he was on duty, he received a so-called still alarm indicating a problem that was neither a fire nor a gas leak. He was able to ascertain that the problem was a water leak in a small industrial complex which was causing water to spill out into the public right-of-way where it was starting to freeze. The premises were owned by
defendant Anncarl Realty, which had recently purchased them from defendant Lutz Superdyne with the intention of tearing down the old factory structures and building condominiums. Lutz, however, continued to occupy a portion of the premises as a month-to-month tenant while it was making its plans to relocate.
When plaintiff arrived at the scene, he found three Guttenberg police officers waiting for him who told him that they had found the source of the leak within one of the buildings. As we understand plaintiff's contention, there was an alleyway between two buildings, access to which was barred by a padlocked gate. Since the alley provided the most direct route to the source of the leak, it was plaintiff's plan to cut the padlock, enter the alley, and force an entrance into the building by way of a door leading into the alley. The police officers asked him not to do so since they had already communicated with a representative of the occupant, who was on his way with keys. In due course, the representative arrived. He has apparently not yet been identified, nor has it been ascertained whether he was an agent of Lutz, of Anncarl, or of defendant Hernandez Realty, which, we understand, manages the real estate interests of defendant John Esposito, the principal owner of Anncarl.
In any event, when the agent arrived, it appeared that he had no key to the locked gate. He urged plaintiff not to cut the padlock and told him that they could obtain access by a door some 75 feet down the block, traverse the interior of that building, and then reach the source of the leak. Plaintiff agreed, and started to follow the agent down the street. Before they reached the door, both plaintiff and the agent slipped and fell on accumulated ice and snow on the sidewalk, whose presence, it is conceded, was attributable to the elements and had nothing to do with the water leak. Indeed, the town had issued a summons to defendant Esposito some ten days before this event charging him with violation of the municipal snow removal ordinance.
After having fallen, plaintiff was able to pick himself up, continued to follow the agent, who had also picked himself up, and finally reached the source of the leak, a broken water sprinkler pipe. He turned off the water at the main valve, and the emergency was thus dealt with. The deposition of Lutz' president indicates that sprinkler pipes had broken before, but in the past the repairs, including any required emergency attentions, were performed either by a plumber or a water sprinkler service company. Apparently, the fire department was asked to respond to this break because neither the police nor the agent was able to reach a plumber at that hour of the night.
Plaintiff, claiming to have suffered back and shoulder injuries as a result of the fall, brought this action against defendants. The gravamen of the action is their alleged negligent maintenance of the public sidewalk abutting the commercial premises within their ownership or control. Defendants' summary judgment motion based on Rosa ensued and was granted.
We are first satisfied that the fireman's rule, as enunciated and developed by the appellate courts of this State prior to Rosa, would not have barred this action. As we have indicated, the original formulation of the rule only barred recovery by a firefighter or police officer whose injury was caused by an act of negligence related to the cause of the emergency requiring his presence at the premises in the first instance. See, e.g., Berko v. Freda, 93 N.J. 81, 85, 459 A.2d 663 (1983) ("Case law draws a distinction between injuries stemming from the negligence that brought the firefighters or police to the scene in the first place and injuries suffered from independent causes that may follow."); Krauth v. Geller, supra, 31 N.J. at 273, 157 A.2d 129 ("It is quite generally agreed the owner or occupier is not liable to a paid fireman for negligence with respect to the creation of a fire"); Cella v. Interstate Properties, 232 N.J. Super. 232, 239, 556 A.2d 1262 (App.Div.1989) (fireman's rule does not apply where "the property owners were free from negligence in causing the condition that brought the officer to the
premises.") Since the accumulation of ice and snow on the sidewalk in this case was completely unrelated to the water leak which created the emergency to which plaintiff was responding when he fell and was injured, there was no nexus between the negligence causing the emergency and the negligence causing the injury. ...