Berko v. Freda

459 A.2d 663, 93 N.J. 81, 1983 N.J. LEXIS 2375

• Court: Supreme Court of New Jersey
• Decided: May 9, 1983
• Status: Published

Opinions

The opinion of the Court was delivered by

CLIFFORD, J.

In Krauth v. Geller, 31 N.J. 270 (1960), this Court adopted the so-called “fireman’s rule,” applicable in tort cases. That rule holds that because it is a firefighter's business to deal with the usual hazards involved in fighting fires, a firefighter “cannot complain of negligence in the creation of the very occasion for his engagement.” Krauth, supra, 31 N.J. at 273-74. The effect of the rule is to insulate one whose negligence causes a fire from liability for injuries sustained by a firefighter while extinguishing the blaze.

The specific question before us is whether the “fireman’s rule,” now a fixture in our jurisprudence, see, e.g., Walsh v. Madison Park Properties, Inc., 102 N.J.Super. 134, 138 (App.Div. 1968), should be extended to police officers. The trial court applied the rule as against the plaintiff-policeman and entered summary judgment in favor of defendant Freda. Berko v. Freda, 172 N.J.Super. 436 (Law Div.1980). The Appellate Division affirmed. Berko v. Freda, 182 N.J.Super. 396 (1982). We granted plaintiff’s petition for certification, 89 N.J. 446 (1982), and now affirm.

I

On December 18, 1976 defendant Freda parked a Cadillac automobile in a supermarket parking lot on Newark Avenue in Elizabeth. He left the keys in the ignition. Defendant Harrigan and another juvenile stole the car. At about 7:00 p.m. that same day plaintiff, John Berko, and a fellow police officer, having earlier been informed of the reported theft, spotted the juveniles in the stolen car. They pursued it and, after a perilous high-speed chase, eventually brought it to a halt. While Officer Berko was attempting to remove Harrigan from the car through the open door on the driver’s side, Harrigan’s foot hit the gas pedal. Berko was dragged forward by the car and suffered injuries. He brought suit against Freda and Harrigan, alleging that Freda was negligent in parking the vehicle with the keys in the ignition and that Harrigan was negligent in his operation of the stolen car.

The trial court granted summary judgment in favor of defendant Freda on two grounds: the intervening conduct by Harrigan was not foreseeable, 172 N.J.Super. at 439, and the “fireman’s rule” was applicable to police officers and precluded recovery, id. at 442. The Appellate Division’s affirmance was solely on the ground that the “fireman’s rule applies to a policeman in the context of this case * * 182 NJ.Super. at 396-97. Plaintiff challenges that determination, asserting that the “fireman’s rule” has no justification in today’s society, and in any event it should not be extended to include policemen. His argument is three-pronged: (1) the prevalence of liability insurance is a recent development having great impact on the present-day viability of the Krauth decision; (2) the “fireman’s rule” is unsound because it relies on the tort doctrine of assumption of risk; and (3) it “makes no sense” to bar a fireman from instituting a third-party action while allowing other members of the public work force to maintain such actions.

The first of the above-stated contentions does not call for comprehensive treatment. To the extent that it suggests that homeowner’s coverage is of recent vintage, it lacks support in the record and is contrary to our understanding of the true state of affairs. To the extent that it implies that the Krauth Court was unmindful of the role of liability insurance in the development of our tort law, it is wholly inaccurate. See Eule v. Eule Motor Sales, 34 N.J. 537, 540 (1961); Hastings v. Hastings, 33 N.J. 247, 253-54 (1960) (Jacobs, J., dissenting).

As to plaintiff’s remaining contentions, we likewise reject them and hold that as to a defendant in the position of Freda in this case, the “fireman’s rule” bars suit for an act of ordinary negligence that creates the occasion for the presence of a firefighter or a police officer at the place where he is injured.

II

Krauth v. Geller, supra, held that a fireman may not recover from an owner or occupier of land for negligence with respect to the creation of the fire on that property. Until today’s challenge by the dissent the respectability of this rule has remained unquestioned in New Jersey for more than two decades. It is well-established, being generally followed throughout the United States. See Trainor v. Santana, 86 N.J. 403, 406 (1981). Although the “fireman’s rule” developed within the context of landowner liability, 2 F. Harper & F. James, The Law of Torts § 27.14 at 1501 (1956), it is clear that the formalistic classification of invitees, licensees and trespassers no longer forms the basis of the rule. Chief Justice Weintraub wrote in Krauth:

The rationale of the prevailing rule is sometimes stated in terms of “assumption of risk,” used doubtless in the so-called “primary” sense of the term and meaning that the defendant did not breach a duty owed, rather than that the fireman was guilty of contributory fault in responding to his public duty. Stated affirmatively, what is meant is that it is the fireman’s business to deal with that very hazard and hence, perhaps by analogy to the contractor engaged as an expert to remedy dangerous situations, he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid. 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. Hence, for that risk, the fireman should receive appropriate compensation from the public he serves, both in pay which reflects the hazard and in workmen’s compensation benefits for the consequences of the inherent risks of the calling. [31 N.J. at 273-74 (citations omitted).]

This doctrine speaks only to the negligence that started the fire. 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. Krueger v. City of Anaheim, 130 Cal.App.3d 166, 170, 181 Cal.Rptr. 631, 633 (1982). “[T]hus, a police officer who while placing a ticket on an illegally parked car is struck by a speeding vehicle may maintain action against the speeder but the rule bars recovery against the owner of the parked car for negligently parking.” Walters v. Sloan, 20 Cal.3d 199, 202 n. 2, 571 P.2d 609, 611 n. 2, 142 Cal.Rptr. 152, 154 n. 2 (1977). An arsonist or a pyromaniac who tried to restrain the firefighter from entering a burning house could be liable for assault, for a firefighter does not assume the risk of assault nor does the assault occasion his presence.

A further illustration of the principle that the “fireman’s rule” does not bar a suit for any negligence that may occur after the firefighters have reached the fire is found in Lipson v. Superior Court of Orange County, 31 Cal.3d 362, 644 P.2d 822, 182 Cal.Rptr. 629 (1982). In Lipson firefighters arriving at a boilover in a chemical plant were told by the owner that no toxic chemicals were in the building. The building did in fact store toxic chemicals, fumes from which injured the firefighters. Since the owner’s misrepresentation was a subsequent act of misconduct that enhanced the risk of fighting the boilover, distinct from the negligence that caused the boilover and occasioned the firefighters’ presence, the court did not apply the “fireman’s rule”. A firefighter, wrote the court, assumes only those risks that are known or can be reasonably anticipated at the site of the fire. Id. at 371, 644 P.2d at 828, 182 Cal.Rptr. at 635. The risk that the owner of a burning building will deceive the firefighters as to the nature of the hazard is not an inherent part of the job and is not a risk the firefighters knowingly and voluntarily assumed. Ibid.

The question presented here — whether the “fireman’s rule” should be applied to policemen — was left unanswered in Trainor v. Santana, supra, 86 N.J. at 407. The similarity between firefighters and police officers compels the extension of the rule to the latter. Both are paid to confront crises and allay dangers created by an uncircumspect citizenry, a circumstance that serves to distinguish firefighters and police from most other public employees.¹ Citizens summon police and firefighters to confront danger. Governmental entities maintain police and fire departments in anticipation of those inevitable physical perils that burden the human condition, whereas most public employment posts are created not to confront dangers that will arise but to perform some other public function that may incidentally involve risk. In keeping with this distinction many jurisdictions have extended the rule to the police. See, e.g., Walters v. Sloan, supra; Garcia v. City of South Tucson, 131 Ariz. 315, 640 P.2d 1117 (1982); Hannah v. Jensen, 298 N.W.2d 52 (Minn.1980); Steelman v. Lind, 634 P.2d 666 (Nev.1981); Whitten v. Miami-Dade & Sewer Auth., 357 So.2d 430 (Fla.App. 1978).

In Walters v. Sloan, supra, defendant hosted a party at which liquor was served to minors. As not uncommonly happens, some disorder developed, which plaintiff police officer was sent to quell. Several of the intoxicated guests assaulted the officer, who claimed the assault proximately resulted from the defendant’s having served liquor to the minors. The court found the “fireman’s rule” precluded recovery, for a police officer summoned to restore peace assumes the risk of violence. The court offered a second reason justifying the rule: fundamental concepts of justice prohibit a police officer from complaining of negligence in the creation of the very occasion for his engagement. 20 Cal.3d at 204-05, 571 P.2d at 612, 142 Cal.Rptr. at 155.

This fundamental concept rests on the assumption that governmental entities employ firefighters and police officers, at least in part, to deal with the hazards that may result from their taxpayers’ own future acts of negligence. See Steelman v. Lind, supra, 634 P.2d at 667 (policeman struck by a car while helping a truck driver gather fallen cargo cannot recover against the truck driver for having negligently secured his freight). Exposing the negligent taxpayer to liability for having summoned the police would impose upon him multiple burdens for that protection. See 2 F. Harper & F. James, The Law of Torts, § 27.14 at 1503 (1956).

Chief Justice Weintraub’s analogy in Krauth, supra, is apt: as with the homeowner who hires a contractor to repair a weakened roof, the taxpayer who pays the fire and police departments to confront the risks occasioned by his own future acts of negligence does not expect to pay again when the officer is injured while exposed to those risks. Otherwise, individual citizens would compensate police officers twice: once for risking injury, once for sustaining it. Moreover, unlike the roofer, the firefighter does not have time to negotiate a contract with the owner of a burning home; but that is not to say that a trained firefighter proceeds unaware of the normal risks inherent in firefighting. Of course, negligently-created risks that did not create the occasion for the firefighter’s presence will give rise to a cause of action against the homeowner. Similarly, a police officer does not have time to draw up a contract with the owner of a stolen car outlining the risks of pursuing the thieves, but the very nature of police work requires officers to recognize the dangers inherent in such emergencies. N.J.S.A. 52:17B-68 mandates police training courses for this very reason. Indeed, one who does not know the risks inherent in a high speed chase should not engage in high speed chasing.

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 a t a disturbance or unlawful incident resulting from negligent conduct.²

Ill

In Trainor v. Santana, supra, 86 N.J. at 407, this Court wrote: “If extended to policemen, the rule would preclude recovery by a police officer only for acts of ordinary negligence which create the occasion for a police officer’s presence at the place where he is injured.” The facts of this case fit squarely within that pronouncement. Freda’s negligent key-leaving invited theft, which resulted in the chase and the capture. As pointed out in Hill v. Yaskin, 75 N.J. 139, 145 (1977), a negligent key-leaver creates the risk of theft and subsequent mishandling of the car. Freda’s negligence gave rise to that risk and occasioned Officer Berko’s presence at the site of the injury. Unlike the defendant in Trainor, Freda committed no subsequent act of negligence contributing to the officer’s injury.

Anent our discussion of Hill and Trainor, we take note of the dissent’s mighty labor to create an intolerable conflict between Hill v. Yaskin, supra, 75 N.J. 139, and today’s decision — and, presumably, the decision to the same effect of the trial court. The source of the dissenters’ afterthought is by no means clear, for two years ago, after joining, without protest, in Trainor v. Santana’s approving discussion of the “fireman’s rule,” 86 N.J. at 404, id. at 406-07, they endorsed the following comment on Hill’s impact on this case:

In Berko, the trial court perceptively noted that the fireman’s rule was never raised as an issue in Hill, and thus, was not considered by this Court in reaching its decision. We agree with its conclusion that Hill v. Yaskin lacked precedential value insofar as the applicability of the fireman’s rule was concerned. [86 N.J. at 408.]

At the risk of belaboring the point, no one in Hill argued the proposition that the “fireman’s rule” should be extended to police officers. That contention was never even hinted at, much less discussed; and we do not accept the hypothesis, implicit in the dissent, that the Court’s failure to have raised on its own and disposed of the affirmative defense of immunity, which was not asserted in Hill, amounts to a judicial declaration that the “fireman’s rule” does not extend to police officers or that if so extended it did not apply in that case. Here the issue was squarely raised in defendant Freda’s motion for summary judgment.

Of course, nothing in the “fireman’s rule” prevents Officer Berko from suing the thief. This creates a paradox: since police fight crime, they must expect an occasional encounter with violence. Why then should they be permitted to sue a thief for personal injuries when they have assumed the risk that the thief might fight back? We resolve this paradox by observing that the public policy underlying the “fireman’s rule” simply does not extend to intentional abuse directed specifically at a police officer. “To permit this would be to countenance unlimited violence directed at the policeman in the course of most routine duties. Certainly the policeman and his employer should have some private recourse for injuries so blatantly and criminally inflicted.” Krueger v. City of Anaheim, supra, 130 Cal.App.3d at 170, 181 Cal.Rptr. at 634. No fundamental unfairness results from allowing an officer to sue a criminal. The crook does not summon the police for help. While the police are paid to risk being assaulted, they are not paid to submit to a criminal assault. Cf. State v. Mirault, 92 N.J. 492, 499 (“We discern no legislative intention to discount assault upon police officers as though it were something to be expected, a part of the game, so to speak.”).

A subtler problem arises when the citizen who summons an officer injures him by a subsequent act of negligence. Since that subsequent negligence does not occasion the officer’s presence, the rule does not apply. Trainor, supra, 86 N.J. at 407; see supra 92 N.J. at 505-06. The reason for the distinction is just that the initial negligence prompts the police to perform their duty, while the subsequent negligence hinders that performance. Just as Krauth, supra, saw no duty to exercise care so as not to require a firefighter’s aid, we see no reason to eliminate the duty to exercise care once the firefighter, or a police officer, begins to render that aid.

Affirmed.

1 In other respects too public safety employees are singled out for special treatment not accorded to other public servants, e.g., compulsory binding arbitration of labor disputes for police and firemen under N.J.S.A. 34:13A-14, and a special category of permissive subjects of negotiation not otherwise recognized under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -21. See Paterson Police PBA v. Paterson, 87 N.J. 78, 92-93 (1981); Ridgefield Park Educ. Ass’n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 158 (1978).

2 The dissent points out that the “rescue doctrine” allows a rescuer to recover from one who negligently imperiled a third party for injuries sustained during the rescue, and argues that this doctrine should extend to firefighters and police. Since danger invites rescue, this doctrine rests on proximate cause and foreseeability. See Wagner v. Int’l R.R. Co., 232 N.Y. 176, 133 N.E. 437 (1921). The fireman’s rule precludes recovery not because the rescue is unforeseeable, but because of considerations of public policy. Accordingly, the rationale of the rescue doctrine has no bearing on the fireman’s rule.