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Lees v. Lobosco

Decided: June 2, 1993.

WILLIAM J. LEES AND CHARLOTTE LEES, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
ATTILLO LOBOSCO AND ELVIRA LOBOSCO, HIS WIFE, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Passaic County

Gaulkin, Havey and Stern. The opinion of the court was delivered by Gaulkin, P.J.A.D.

Gaulkin

This case presents yet another question as to the scope of the "fireman's rule": does it apply to a suit brought by a municipally-employed emergency medical technician? We hold that it does not.

Plaintiff William J. Lees, an emergency medical technician (EMT) employed in the Paterson Fire Department, was dispatched to render emergency medical assistance to defendant Attillo Lobosco at his home. While carrying Lobosco in a "stair chair" to the ambulance, Lees allegedly slipped and fell on an accumulation of snow and ice on the sidewalk in front of Lobosco's house. Alleging negligent maintenance of the sidewalk, Lees brought this action against Lobosco and his wife; Lees's wife asserted a per quod claim. On defendants' motion, a Law Division Judge dismissed the causes of action as barred by the fireman's rule. Plaintiffs appeal.

I

We have described plaintiff as a municipally-employed EMT, not as a fireman or firefighter. The parties have treated him as such throughout the litigation. The facts permit no other description of his employment.

Plaintiff was hired by Paterson as an EMT and he was so classified and certified by the New Jersey Department of Personnel. He was never trained or certified as a firefighter, nor did he ever perform firefighting duties. He served in the Paterson

Emergency Medical Services Department, which, according to plaintiff's uncontradicted certification, was "under the auspices" of the Paterson Fire Department "[a]s a matter of administrative convenience, and for no other reason."

For purposes of the fireman's rule, then, plaintiff was not a fireman or firefighter. His administrative assignment to the Fire Department is irrelevant.

II

As first announced in Krauth v. Geller, 31 N.J. 270, 157 A.2d 129 (1960), the fireman's rule mandated only "that the occupier [of private property] is not liable to a fireman for the creation of a fire." Id. at 275, 157 A.2d 129. Berko v. Freda, 93 N.J. 81, 459 A.2d 663 (1983), extended the rule to policemen, but again limited the immunity to "an act of ordinary negligence that creates the occasion for the presence of a firefighter or a police officer in a place where he is injured." Id. at 84, 459 A.2d 663. That limitation was removed by Rosa v. Dunkin' Donuts of Passaic, 122 N.J. 66, 583 A.2d 1129 (1991), which applied the fireman's rule to bar a policeman's suit for injuries sustained when he slipped on the floor of a donut shop to which he had responded on a call for emergency medical assistance. The expanded scope of the immunity was there stated as follows:

[T]he policies and goals that bar a firefighter and police officer from recovering for injuries sustained from an ordinary act of negligence that occasioned the officer's presence on the premises are equally applicable to bar liability for injuries that arise from an act of ordinary negligence posing a hazard ...


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