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Kelly v. Ely

January 19, 2001

MICHAEL KELLY,
PLAINTIFF-APPELLANT,
V.
THOMAS J. ELY,
DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-833- 97.

The opinion of the court was delivered by: Wefing, J.A.D.

Argued: November 13, 2000

Before Judges Wefing and Cuff.

In 1960, the New Jersey Supreme Court adopted the fireman's rule in New Jersey, barring a firefighter from recovering damages in a tort action against a property owner for injuries received while battling that fire. Krauth v. Geller, 31 N.J. 270 (1960). Writing for the court, Chief Justice Weintraub held that "the owner or occupier [of a premises] is not liable to a paid fireman for negligence with respect to the creation of a fire." Krauth, supra, 31 N.J. at 273.

In 1994, the Legislature passed N.J.S.A. 2A:62A-21 which purports to abrogate the rule by permitting a firefighter injured "directly or indirectly [as] the result of the neglect, willful omission, or willful or culpable conduct or any person or entity . . . [to] seek recovery and damages from the person or entity whose neglect, willful omission, or willful or culpable conduct resulted in that injury." The present case calls for us to consider the extent of a landowner's liability under this statute to a firefighter injured on the premises.

The underlying facts are undisputed. Accordingly the matter was presented to the trial court on defendant's motion for summary judgment. Plaintiff appeals from the trial court's order granting that motion; we now affirm.

Plaintiff is a volunteer fireman in Spring Lake Heights, New Jersey. On July 20, 1995, he responded to a report of a fire at defendant's home at 30 Apple Drive; defendant had been attempting to ignite his outdoor gas grill and the propane tank became engulfed in flames. Plaintiff described the incident in the following manner: "I carry all of my own gear in my truck. I had my gear on. I was running towards the fire scene. I was putting my jacket on, and called to another fire fighter and tripped over the curb." After the fire was extinguished, plaintiff learned he had fractured his elbow and wrist in his fall.

There was no evidence that plaintiff's fall was in any way occasioned by negligent maintenance of the curb upon which he tripped. Plaintiff did urge, however, that the fire itself was the result of defendant's negligence. He noted that a subsequent inspection of the grill disclosed a break in the hose between the tank and the grill. He also noted that the owner's manual for the grill stated that the hose should be inspected before each use. According to plaintiff, such an inspection would have revealed the existence of that break. Plaintiff contended defendant was negligent in attempting to light the grill without conducting such an inspection and, as a result, should be held responsible in damages for the injuries plaintiff sustained in his fall.

In Krauth v.Geller, supra, the Court explained the underlying rationale for the fireman's rule in the following terms:

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. [Krauth v. Geller, supra, 31 N.J. at 274.]

The Court in Krauth spoke in terms of paid firemen. This court subsequently extended the rule to volunteer firemen in Ferraro v. Demetrakis, 167 N.J. Super. 429 (App. Div.), certif. denied, 81 N.J. 290 (1979). Several years thereafter, the Supreme Court further extended the rule to encompass police officers. Berko v. Freda, 93 N.J. 81 (1983). In the course of its opinion in that case, the Court again recognized the policy underlying the rule.

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. [Berko v. Freda, supra, 93 N.J. at 88-89.]

The Court yet again extended the scope of the rule in Rosa v. Dunkin' Donuts, 122 N.J. 66 (1991) when it concluded that the rule precluded a police officer, who was injured when he slipped on an allegedly negligently maintained floor while carrying an injured person from the scene, from recovering for his injuries.

In an apparent attempt to shield injured innocent parties from some of the rule's potentially adverse consequences, some courts have refused to extend it beyond fire fighters and police officers. Lees v. Lobosco, 265 N.J. Super. 95 (App. Div. 1993), certif. denied, 136 N.J. 29 (1994) (holding that it did not bar a suit by an emergency medical technician who slipped on snow and ice); Kiernan v. Miller, 259 N.J. Super. 320 (Law Div. 1992) (holding it did not apply to a volunteer ambulance attendant); see contra, Siligato v. Hiles, 236 N.J. Super. 64 (Law Div. 1989) (extending the rule to volunteer emergency rescue squad members). Other courts have developed various exceptions to the rule. Boyer v. Anchor Disposal, 135 N.J. 86 (1994) (rule did not bar recovery for fire inspector who, while at a shopping mall to look for fire code violations, slipped and fell on a large oily spot on a driveway); Mahoney v. Carus Chemical Co., 102 N.J. 564 (1986) (rule inapplicable when willful and wanton misconduct creates the hazard that causes the injuries); McGriff v. Newark Housing Authority, 259 N.J. Super. 407 (App. Div.), certif. denied, 133 N.J. 429 (1992) (rule did not bar suit by police officer who slipped and fell on ice while walking to his car to retrieve his summons book because plaintiff was exposed to no greater risk of harm than anyone else walking through the parking lot); Vogel v. Skobo, 258 N.J. Super. 431 (App. Div.), certif. denied, 130 N.J. 599 (1992) (police officer pursuing a speeding motorcycle not covered by the rule when his injuries were the result of an independent and intervening act of negligence); Knoetig v. Hernandez Realty Co., 255 N.J. Super. 34 (App. Div.), certif. denied, 130 N.J. 394 (1992) (fireman who slipped and fell on accumulated ice and snow on public ...


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