Rosa v. Dunkin' Donuts of Passaic

583 A.2d 1129, 122 N.J. 66, 1991 N.J. LEXIS 3
CourtSupreme Court of New Jersey
DecidedJanuary 15, 1991
StatusPublished
Cited by38 cases

This text of 583 A.2d 1129 (Rosa v. Dunkin' Donuts of Passaic) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rosa v. Dunkin' Donuts of Passaic, 583 A.2d 1129, 122 N.J. 66, 1991 N.J. LEXIS 3 (N.J. 1991).

Opinions

The opinion of the Court was delivered by

GARIBALDI, J.

In Krauth v. Geller, 31 N.J. 270, 273, 157 A.2d 129 (1960), we adopted the fireman’s rule that “the owner or occupier is not liable to a paid fireman for negligence with respect to the creation of a fire.” Id. at 273, 157 A.2d 129. In Berko v. Freda, 93 N.J. 81, 459 A.2d 663 (1983), we extended the rule to police officers.

This appeal concerns the scope of the immunity granted by the fireman’s rule. No act of negligence brought plaintiff, a police officer, to the scene of his injury. In response to an emergency medical assistance call from the defendants’ store, he slipped on a powdery white substance scattered on the kitchen floor of the store. He claims that the fireman’s rule bars a suit against the property owner or occupier only “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.” Berko v. Freda, supra, 93 N.J. at 84, 459 A.2d 663. Defendants claim that the fireman’s rule also bars a suit against a property owner or occupier for an act of ordinary negligence that arises out of the normal course of a police officer’s duty. The issue, therefore, is: does the fireman’s rule [69]*69bar liability only where the injuries arise from an ordinary act of negligence that is the reason for the firefighter or police officer being on the premises, or does it likewise bar liability where the injuries arise from an ordinary act of negligence that firefighters and police in the normal course of their duties should expect to meet?

I

The facts are essentially undisputed. While on duty, plaintiff, Jose Rosa, a police officer in Passaic, responded to a call for emergency medical assistance for a sick employee at defendants’ Dunkin’ Donuts store in Passaic. On arriving at the store Officer Rosa found an unconscious employee. While he was carrying the unconscious employee on a stretcher to the police ambulance, Officer Rosa’s left foot slipped on a white powdery substance (presumably confectioner’s sugar or flour) on the kitchen floor of the donut shop. Officer Rosa recalls no conscious recognition of the powder’s presence before his fall; however, there is no indication or insinuation that it was not present when he arrived at the scene.

Officer Rosa received unspecified injuries as a result of slipping while transporting the sick employee to the ambulance. His injuries form the basis of a workers’ compensation claim. His injuries also form the basis of this lawsuit.

On July 21, 1984, Officer Rosa filed a lawsuit based on these unspecified injuries against defendants’ Dunkin’ Donuts of Passaic and Carmel Aditya, the owner of the franchise.1 He alleged that the defendants had caused him to slip and fall by negligently allowing the white powdery substance to remain scattered on the kitchen floor, thereby creating a slippery floor. He contended that the white powdery substance on the floor [70]*70created a foreseeable risk of avoidable future harm. His contention forms a classic, ordinary negligence claim.

On November 3, 1987, defendants moved for summary judgment, claiming that the fireman’s rule barred plaintiff’s action. Although many statements of that rule apparently limit it to barring claims based upon the very negligence that occasioned the rescuer’s presence, see Berko v. Freda, supra, 93 N.J. at 85, 459 A.2d 663; Krauth v. Geller, supra, 31 N.J. at 273, 157 A.2d 129; Celia v. Interstate Properties, 232 N.J.Super. 232, 240, 556 A.2d 1262 (App.Div.1989); Chipps v. Newmarket Condominium Ass’n, 228 N.J.Super. 144, 147, 549 A.2d 66 (Law Div.1988), defendants cite recent cases that held it applicable to situations in which the officer’s presence was occasioned by some factor other than the negligence that caused his or her injury. Maryland Casualty Co. v. Heiot, 224 N.J.Super. 441, 446, 540 A.2d 920 (Law Div.1988); Williams v. Levitt, 213 N.J.Super. 604, 607, 517 A.2d 1242 (Law Div.1986).

The trial court granted defendants’ motion. Officer Rosa appealed. The Appellate Division unanimously rejected Officer Rosa’s contention that his claim fell into a standard exception to the fireman’s rule.

[The plaintiffs] urge that the injury sustained here falls squarely within the exception carved out in Berko for negligence which did not create the occasion for the public employee’s presence. Berko, supra, 93 N.J. at 85 [459 A.2d 663]. In other words they view the slip and fall as entirely distinct from the reason for Rosa’s presence at defendant’s premises. We disagree. In our view Rosa’s fall was a risk inherent in the situation to which he responded (a rescue in the kitchen of a doughnut shop) and recovery was therein precluded under the “Fireman Rule.”

We granted certification, 117 N.J. 626, 569 A.2d 1330 (1989), and now affirm.

II

The fireman’s rule is followed throughout the country. Berko v. Freda, supra, 93 N.J. at 83, 459 A.2d 663. Since this Court adopted the rule in 1960, it has been “a fixture in our jurisprudence.” Ibid.

[71]*71In adopting the rule, we eschewed the technical formalistic classifications used to define varying duties of care landowners owe to trespassers, licensees, or invitees. We recognized that the officer’s “status being sui generis, justice is not aided by appending an inappropriate label and then visiting consequences which flow from a status artificially imputed.” Krauth v. Geller, supra, 31 N.J. at 273, 157 A.2d 129.

In Krauth, Chief Justice Weintraub set forth the policy underlying the fireman’s rule:

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.

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Bluebook (online)
583 A.2d 1129, 122 N.J. 66, 1991 N.J. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosa-v-dunkin-donuts-of-passaic-nj-1991.