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Stollenwerk v. Township of Mullica

November 20, 1998

ROBERT STOLLENWERK, T/A PAPOOH'S TREE FARM, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF MULLICA, MULLICA TWP. FIRE DEPT., JOHN DOE, MEMBERS OF THE MULLICA TWP. FIRE DEPT. AND OTHER PARTIES NOT YET IDENTIFIED, DEFENDANTS-RESPONDENTS.



Argued September 28, 1998

Before Judges Skillman, P.G. Levy and Lesemann.

[9]    On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.

The opinion of the court was delivered by LESEMANN, J.S.C. (temporarily assigned).

Plaintiff appeals from a summary judgment dismissing his complaint which alleged that negligence of two volunteer fire companies had caused fire damage to his property. The summary judgment was based on two statutes, N.J.S.A. 2A:53A-13 and 2A:53A-13.1, which provide broad immunity to volunteer fire companies and their members for their actions while engaged in fire fighting or first-aid rescue services. Plaintiff did not contest the motion in the Law Division but does so now. Although the appeal might well be dismissed because of plaintiff's inaction in the trial court, we have determined to deal with the matter on its merits, and on that basis we affirm.

On April 7, 1995, the members of two Mullica Township volunteer fire companies responded to a highway accident and, while performing first-aid and rescue services there, summoned a helicopter to bring victims to a hospital. They used flares to mark a recommended landing area in a nearby field. The flares caused grass in the field to catch fire which, in turn, caused substantial damage to plaintiff's tree farm. As a result, plaintiff filed suit against the Township, the Township volunteer fire department, and members of the fire department, alleging that their negligence caused plaintiff's loss.

N.J.S.A. 2A:53A-13 provides that:

No member of a volunteer fire company, which provides emergency public first aid and rescue services or services for the control and extinguishment of fires, or both,... shall be liable in any civil action to respond in damages as a result of his acts of commission or omission arising out of and in the course of his rendering in good faith any such services.... * * *

Nothing herein shall be deemed to grant any such immunity to any person causing damage by his willful or wanton act of commission or omission.

N.J.S.A. 2A:53A-13.1 provides the same immunity, in virtually the same language, for the "volunteer fire company" itself (as opposed to its members) although it does not contain the disclaimer for "willful or wanton" actions.

Based on those immunity provisions, the Law Division granted defendants' motion for summary judgment. On appeal plaintiff raises essentially two arguments:

First, plaintiff claims that the immunity statutes apply only when the volunteer fire company is performing fire fighting services and not while it is performing first-aid services. Second, plaintiff claims that defendants' actions were "willful" and thus the immunity grant is inapplicable.

Plaintiff's first argument simply ignores the language of the statutes. Both N.J.S.A. 2A:53A-13 and 2A:53A-13.1 apply, by their terms, to both "services for the control and extinguishment of fires" and "emergency public first-aid and rescue services." Here, the defendants were engaged in the latter, but the grant of immunity is as clear and as broad as if they were engaged in fire fighting duties.

As to the second argument, while plaintiff now contends that defendants' actions were "willful," defendants correctly note that plaintiff's complaint contains no such allegation. The complaint is based squarely and exclusively on alleged negligence and says nothing of "willful or wanton" conduct. In any event, and even assuming ...


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