On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Before Judges Bilder and Baime.
The opinion of the court was delivered by
This is a personal injury, stairway fall-down case. Plaintiff's decedent,*fn1 a Paterson police officer, appeals from an October 29, 1991 order of the Law Division granting defendant Paterson Housing Authority an involuntary dismissal when plaintiff rested her case in a liability only trial. In his oral opinion of October 8, 1991, the trial Judge rejected defendant's contention that the claim was barred by the Fireman's Rule but concluded that the defendant was immunized by N.J.S.A. 59:2-10, a section of the New Jersey Tort Claims Act. On appeal, plaintiff contends the trial Judge correctly found that the circumstances surrounding the accident made the Fireman's Rule inapplicable but erred in applying the Tort Claim Act immunity to defendant's wanton and willful conduct. Defendant cross-appeals from a November 14, 1986 order of the Law Division which permitted plaintiff's decedent to file a late notice of claim and an order of December 19, 1986 which denied defendant's motion to vacate the earlier November 14, 1986 order.
On February 3, 1986, while responding to a report of domestic violence at Apartment 1F in Building 4 of defendant's Christopher Columbus project, plaintiff's decedent, Frank Savino, a Lieutenant in the Paterson police department, was injured when he fell in a stairwell while going upstairs from the lobby floor to the floor above on which Apartment 1F was located. In depositions taken before his death, Savino gave the following account of the accident:
I struck a sharp object and I fell back to the left turning my left ankle. But I struck that object with my right foot.
He described the object as a piece of steel, probably part of the steel strip nosing, sticking almost straight up from the step.
Testimony was presented from other police officers that these were concrete steps with metal nosings; that the steps were and for some long period of time had been in deplorable condition; that concrete was coming off the steps; that the lighting was very poor, many of the lights being out or missing; that signs had been posted warning that the steps should not be used and that use was at one's own risk; and that the elevators here often inoperative. Officer Weston, Savino's partner at the time of the accident, said the steel edge molding around the concrete was jagged.
All the officers testified that this was a high-crime area; the building was rife with vandalism; and garbage was usually present in the halls and stairs. In his deposition, Savino himself testified that inoperative elevators were a common occurrence; that vandalism was a problem; that the description of the area as a crime area referred to narcotics; that maintenance problems were routine; that poor lighting, no lighting and filthy conditions were common problems; and that garbage in the halls was a common problem.
In his direct testimony, Officer Weston gave the following description of the stairwells in building 4:
They were very deplorable. The concrete was cracked. I don't recall the metal molding at that time being--you know, because we would of took care of that right away. Evidently, there was a lot of traffic, people moving furniture, they could of destroyed the stripping around the concrete.
When asked if he ever saw maintenance people doing any repairs to the stairways or metal ...