(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court.
Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 25, 1993 -- Decided March 14, 1994
O'HERN, J., writing for a majority of the Court.
The question before the Court is whether the firefighters' rule, as it existed in 1988, bars from
recovery a fire inspector, who while at a shopping mall to inspect for fire-code violations, falls on a
slippery substance in a common area of the mall. The firefighters' rule limits the liability of one whose
negligence causes injury to a police officer or firefighter performing emergency duties. The New Jersey
Legislature has since abolished the firefighters' rule. That abolition is prospective, however, applying to
injuries, diseases, or deaths occurring only on or after the Act's effective date of January 5, 1994.
On August 11, 1988, James Boyer was working as a fire inspector of the Atlantic City Fire
Department. He was inspecting the Ocean One Mall in Atlantic City for fire-code violations. As he was
leaving the inside of the mall, he walked out a fire-exit door. He stepped off the curb of the sidewalk
onto the driveway, where he slipped and fell on a slippery substance. That substance was later
disclosed to be hydraulic fluid that had leaked from a damaged hydraulic line of an Anchor Disposal
trash truck.
The trial court granted summary judgment motions made by the defendants based on the bar of
the firefighters' rule.
In an unreported opinion, the Appellate Division affirmed the trial court's judgment, concluding
that Boyer's complaint was barred by the firefighters' rule.
The Supreme Court granted certification.
HELD: The firefighters' rule will not be expanded to insulate the creator of a general risk to others
that neither occasions the presence of the public-safety officer nor defines the scene at
which the officer must perform emergency duties.
1. The firefighters' rule was not based on the classification of the firefighter as invitee or
licensee, but on more fundamental social considerations. There was a public policy component of the
firefighters' rule that strongly opposed 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. The doctrine, however, does not extend to insulate landowners who create
undue risks of injury by failing to give warnings of hidden risks beyond those inevitably involved in
firefighting; nor does it bar negligence claims that may occur after the firefighters have reached the
scene of a fire. (pp. 5-8)
2. Although the Legislature has recently expressed a contrary public policy in respect of
firefighters' rule cases, the Court believes that it should decide this case under the laws that existed in
1988 when the accident occurred. (p. 8)
3. When the firefighter suffers harm as a result of exposure to risks of injury that are neither inevitably involved in firefighting nor unavoidable in the sense that the firefighter could not have fulfilled
his duties without traversing the area in question, the values of the firefighters' doctrine are not
implicated. Here, Boyer encountered a risk that was not inherently related to his firefighting duties. It is
mere coincidence that the accident occurred outside of a fire exit and that the slippery substance had
been hazardous. The negligence neither occasioned nor defined the scene at which Boyer was bound
to respond. Although the risk encountered arose during the performance of firefighting duties, that risk
was not inherent in nor an inevitable part of those duties. Any member of the public could have
encountered this risk. (pp. 8-11)
4. If the firefighters' rule applies to the owner of premises, it also applies to a third party who
has created the condition that brings about the presence of the officer or defines the scene of
emergency response. (pp. 11-12)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for further proceedings consistent with this opinion.
JUSTICE HANDLER, concurring in part, is of the view that the Court properly declined to
broaden further the firefighters' rule but takes pains to express its continued allegiance to that rule.
Justice Handler believes that it does not seem right that now, simply as a matter of judicial preference,
injured police officers and firefighters should continue to be denied their right to seek recovery because
of the Court's refusal to abandon a "bizarre doctrine." That is especially so given the fact that the
judicially-created firefighters' rule itself is "ultimately one of public policy."
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, POLLOCK, GARIBALDI and STEIN
join in JUSTICE O'HERN'S opinion. JUSTICE HANDLER filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-
33 September Term 1993
JAMES BOYER and
DONNA BOYER, husband and wife,
Plaintiffs-Appellants,
v.
ANCHOR DISPOSAL AND
SUNSHINER MAINTENANCE,
Defendants-Respondents,
and
RMB REALTY, Individually and as
owners of OCEAN ONE MALL, MOOR &
SOUTH, AND JOHN DOE MAINTENANCE
PERSON,
Defendants.
Argued October 25, 1993 -- Decided March 14, 1994
On certification to the Superior Court,
Appellate Division.
Lars S. Hyberg argued the cause for
appellants (McAllister, Westmoreland, Vesper
& Schwartz, attorneys).
Alan G. Giebner argued the cause for
respondent Sunshiner Maintenance (Buonadonna,
Benson & Parenti, attorneys).
Lawrence P. Engrissei argued the cause for
respondent Anchor Disposal (Thomas Dempster,
III, attorney).
The opinion of the Court was delivered by
O'HERN, J.
This case concerns an application of the firefighters'
rule, which limits in certain circumstances the liability of one
whose negligence causes injuries to a firefighter or police
officer performing emergency duties. Because the Legislature
has, in effect, abolished the firefighters' rule in New Jersey,
L. 1993, c. 366, this case is probably the last in which this
Court will consider an application of the rule. The Act is
prospective, however, applying to injuries, diseases, or deaths
occurring only on or after the Act's effective date of January 5,
1994. This accident occurred in 1988.
The specific question in this case is whether the rule,
as it existed prior to the legislative changes, bars from
recovery a fire inspector who, while at a shopping mall to look
for fire-code violations, suffers a slip-and-fall accident in a
common area of the mall. We hold that those circumstances do not
implicate the values of the firefighters' rule and do not bar
recovery if conditions for liability are otherwise established.
The details of the case are somewhat sketchy. Initially the matter was resolved on motion for summary judgment. Because the facts must be considered in the light most favorable to the opposing party on a summary-judgment motion, we accept plaintiff James Boyer's version. Judson v. Peoples Bank & Trust Co. of
Westfield,
17 N.J. 67, 75 (1954). (Reference hereinafter to
"plaintiff" is to James Boyer.)
On August 11, 1988, plaintiff was working as a fire
inspector for the Atlantic City Fire Department. He was
inspecting the Ocean One Mall in Atlantic City for fire-code
violations. As he was leaving the interior of the mall, he
walked out a fire-exit door that led to Arkansas Avenue. After
passing through the doorway, he walked approximately ten feet and
stepped off the curb of the sidewalk onto the driveway, whereupon
he felt his foot slip out from under him. As he slipped, his
knee gave way and he landed on his left knee, buttocks, and lower
back. He lay on the ground in severe pain until he managed to
stand up. As soon as he got back on his feet, he noticed an oily
substance on which he had slipped. The substance was spread out
approximately four to six square feet and was very dark in color.
An investigation later disclosed that it was some type of
hydraulic fluid. The Ocean One Mall manager informed a fire
department representative that an Anchor Disposal trash truck had
pulled up to that location earlier in the day and had broken its
main hydraulic-fluid line causing the leak on the driveway.
Plaintiff said that he never saw the oily spot before he fell:
"I was focused on the other side of the driveway at the standpipe
[the water supply main] and I was looking at the standpipe, and
when I stepped off the sidewalk, I lost my footing." After the
accident, the fire department issued a notice to the Ocean One
Mall for flammable or combustible liquid on the pavement and gave
it twenty-four hours for cleanup.
Defendants, recognizing that as a fire inspector Boyer
did not fit the typical description of a public employee who
should be affected by the firefighters' rule, relied on the
Appellate Division's earlier holding in Walsh v. Madison Park
Properties, Ltd.,
102 N.J. Super. 134 (1968). In that case, two
firemen were injured while inspecting a fire escape that was
negligently maintained. That court held that the
[landowner's] duty to exercise reasonable
care did not encompass an obligation to
affirmatively guard against defects in
apparatus which plaintiffs were in the
process of inspecting pursuant to the duty
which brought them to its premises. * * *
It is the possibility of such violations that
creates the need for the inspector's
services. Thus an employee of a contractor
engaged to repair a water tower may not
recover for injuries sustained (due to the
defective condition of the tower) while
engaged in making an inspection of the tower
for the purpose of determining what repairs
are necessary * * *.
In its unreported opinion in this case, the Appellate Division concluded that Boyer's complaint was barred by "the mechanism of his injury; a risk that the fire code violations he was inspecting for may actually exist and cause him injury. In fact, he actually was searching for the very kind of violation that he encountered when he slipped and fell." The court emphasized that the door through which he had left the building
was a fire exit. The court did not find significant that
plaintiff's injuries had been caused by the negligence of a third
party instead of the negligence of the owner/occupier of the
premises. Rather, the court found that "[t]he fact that a party
other than the land occupier may have caused the violation is of
no moment."
We granted plaintiffs' petition for certification,
133 N.J. 444 (1993).
The firefighters' rule in one form or another has gained acceptance in the vast majority of American jurisdictions. See, e.g., Lipson v. Superior Court, 644 P.2d 822 (Cal. 1982); Trainor v. Santana, 86 N.J. 403, 406 (1981). Despite widespread acceptance, the doctrine lacks a clear conceptual outline. Although a catchy phrase, the "firefighters' rule" is not as self-explanatory as, for example, the doctrine of "one person, one vote." Its core meaning reflected what courts perceived to be the consensus of the community about the way that the risks of accidental injuries in public-safety work were to be borne. Under that view, a firefighter who responds to a house fire occasioned by the occupant's careless act of falling asleep in a chair while smoking does not expect that the occupant shall answer for injuries sustained by the firefighter in responding to that very act of negligence summoning his presence. Equally
clear was the view that an arsonist would not enjoy such an
immunity.
Articulating the principles that guide courts in making
such distinctions is difficult. The distinctions that the common
law drew between licensees and invitees were the bases of the
doctrine's early premise. Those distinctions "'were inherited
from a culture deeply rooted to the land, a culture which traced
many of its standards to a heritage of feudalism.'" Smith v.
Arbaugh's Restaurant, Inc.,
469 F.2d 97, 101 (D.C. Cir. 1972)
(quoting Kermarec v. Compagnie Generale Transatlantique,
358 U.S. 625, 630,
79 S. Ct. 406, 410,
3 L. Ed.2d 550, 554 (1959)), cert.
denied,
412 U.S. 939,
93 S. Ct. 2774,
37 L. Ed.2d 399 (1973).
New Jersey's legal climate has not been congenial to
distinctions based on status. Taylor v. New Jersey Highway
Auth.,
22 N.J. 454, 463 (1956). Thus, in approaching the problem
of the firefighters' rule, New Jersey based its rule not on the
classification of the firefighter as invitee or licensee, but on
the more fundamental considerations of the order of social
structure. In adopting a firefighters' rule, our Court said:
The question is ultimately one of public
policy, and the answer must be distilled from
the relevant factors involved upon an inquiry
into what is fair and just. See Rappaport v.
Nichols,
31 N.J. 188, 205 (1959); Wytupeck v.
City of Camden,
25 N.J. 450, 461 (1957).
* * * The rationale of the prevailing [firefighters'] 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. See Meistrich v. Casino
Arena Attractions, Inc.,
31 N.J. 44 (1959).
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.
[Krauth v. Geller,
31 N.J. 270,
273-74 (1960).]
In that sense, New Jersey's classification of its firefighters has been considered unique. See Larry D. Scheafer, Annotation, Liability of Owner or Occupant of Premises to Fireman Coming Thereon in Discharge of His Duty, 11 A.L.R.4th 597, 606-07 (1982). Thus, even in its pronouncement, this Court emphasized the narrow content of the doctrine. It does not extend to insulate landowners who create undue risks of injury or who fail to give warnings of a hidden peril beyond those inevitably involved in firefighting; nor does it bar negligence claims that
may occur after the firefighters have reached the scene of a
fire. Thus, we expressed the doctrine in terms of its societal
value. We stated our understanding of those values in Berko v.
Freda,
93 N.J. 81 (1983). That case extended the doctrine to a
police officer responding to an emergency. We said:
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.
[Id. at 88-89 (footnote omitted).]
The Legislature has since expressed a contrary policy
that shall apply in "firefighters' rule" cases. But for the
Legislature's explicit statement that the policy should be
prospective only, our decision now would be shaped by that
legislative definition of the "public policy component" of the
firefighters' rule. Id. at 88. With deference to our concurring
member, we believe that we should decide this case under our law
as it existed at the time of this accident.
The question then is whether our precedent would have extended the firefighters' rule to cover this situation. We hold
that when the issue comes down to expanding the firefighters'
rule to insulate the creator of a general risk to others that
neither occasions the presence of the public-safety officer nor
defines the scene at which the officer must perform emergency
duties, the values that informed our application of the doctrine
in Berko, supra,
93 N.J. 81, are not present.
In Rosa v. Dunkin' Donuts,
122 N.J. 66 (1991), we held
that the acts of negligence that are insulated are not only those
that occasion the presence of the officer (as in the case of one
who falls asleep and carelessly starts a fire or, as in Berko,
leaves keys in a car that may be stolen), but, in addition, those
acts of negligence that define the scene of the emergency
response. Officer Rosa's duty compelled him to traverse an area
sprinkled with powder in order to render medical assistance to an
unconscious female employee. "He could not have fulfilled his
duty without passing over the area in question." Id. at 74.
This Court thus concluded that the policies and goals of the
firefighters' rule "are equally applicable to bar liability for
injuries that arise from an act of ordinary negligence posing a
hazard that is incidental to and inherent in the performance of
the [firefighter's] duties." Id. at 76.
Boyer encountered a risk that was not inherently related
to his firematic duties. That the accident occurred outside a
fire exit and the substance happened to have been hazardous was
mere coincidence. The accident could have been caused as well by
salad oil or fountain syrup that had leaked out from the garbage
truck. Like the later-arriving motorist in Wietecha v.
Peoronard,
102 N.J. 591 (1986), who collided with a vehicle
stopped at the scene of the accident, these defendants cannot
complain that the one injured through their negligence happened
to be a public-safety officer. Defendants' negligence neither
occasioned nor defined the scene at which the officer was bound
to respond. The situation resembles one in which a volunteer
firefighter en route to a fire in a private passenger car had
stopped at a red light and had been struck in the rear by another
motorist. Although the risk encountered arose during the
performance of firefighting duties, the risk was not inherent in
nor an inevitable part of those duties. Any member of the public
could have encountered the risk in equal measure.
Indeed, had this plaintiff been looking for the
substance, he would not have slipped on it. The firefighters'
rule, then, is but a shorthand expression of a careful balance of
the relationship of particular parties. In his separate opinion
in Mahoney v. Carus Chemical Co., Inc.,
102 N.J. 564 (1986)
(dissenting from the exclusion of willful and wanton misconduct
from the rule), Justice Clifford explained:
What has evolved from Krauth in the twenty-six years that have passed since it was
decided is a sensible, straightforward,
bright-line rule, distinguished by its ease
of application: if a fireman is hurt as a
result of his exposure to the risks of injury
that are inevitably involved in firefighting,
then his recourse lies with the public fisc,
not with the tortfeasor.
When the firefighter is hurt as a result of exposure to risks of
injury that are neither inevitably involved in firefighting nor
unavoidable in the sense that the officer could not have
fulfilled firematic duties without traversing the area in
question, the values of the doctrine are not implicated.
We do not confront in this case the premise of Walsh,
supra,
102 N.J. Super. 134, that when a fire officer is injured
in the course of inspecting a fire escape, the officer may not
complain in law that the fire escape was unsafe. Because the
fire officers in Walsh were not engaged in fighting a fire, the
court did not base its ruling on an application of the
firefighters' rule. Id. at 139. Rather, the court focused on
the nature of the officers' duties, which involved inspecting
fire escapes and other safety equipment. Ibid.
Plaintiff was not inspecting the surface of the parking
lot at the time of his accident; rather, his attention was
focused on a standpipe on the other side of the driveway. Thus,
happenstance, not duty, occasioned his slip and fall.
Finally, we agree with the court below that if the
doctrine applies to the owner of premises, it applies to a third
party who has created the condition that occasions the presence
of the officer or defines the scene of emergency response. We do
not, however, find those prerequisites to the firefighters' rule
present here. We acknowledge that the lines between the cases
are not always easily drawn (as evidenced by the rulings below).
Yet, "we must here also accept the fact that drawing lines is the
business of judging." Wietecha, supra, 102 N.J. at 596. We have
attempted to draw those lines on the basis of what we perceived
to be the public-policy component of the firefighters' rule. See
Mahoney, supra,
102 N.J. 564 (holding property owner not
immunized for willful and wanton misconduct that causes injury to
firefighter). The Legislature has settled the public policy
issue.
The judgment of the Appellate Division is reversed. The
matter is remanded to the Law Division for further proceedings in
accordance with this opinion.
Chief Justice Wilentz and Justices Clifford, Pollock,
Garibaldi, and Stein join in this opinion. Justice Handler has
filed a separate opinion concurring in part.
SUPREME COURT OF NEW JERSEY
A-
33 September Term 1993
JAMES BOYER and DONNA BOYER,
husband and wife,
Plaintiffs-Appellants,
v.
ANCHOR DISPOSAL AND
SUNSHINER MAINTENANCE,
Defendants-Respondents,
and
RMB REALTY, Individually and as
owners of OCEAN ONE MALL, MOOR &
SOUTH, AND JOHN DOE MAINTENANCE
PERSON,
Defendants.
HANDLER, J., concurring in part.
The Court allows recovery for personal injuries to a fire
inspector who, while inspecting a shopping mall for fire-code
infractions, slips and falls in the mall's parking lot. In so
doing, the Court properly declines to broaden further the
firefighters' rule. However, it takes pains to express its
continued allegiance to the rule.
The Court, as is its prerogative, never agreed with the
view that the firefighters' rule violates "a fundamental tenent
of our jurisprudence . . . : the right of redress for those
injured as a result of the wrongdoing of others." Mahoney v.
Carus Chem. Co.,
102 N.J. 564, 591 (1986) (Handler, J.,
dissenting). That view, however, ought not, at this juncture, be
treated dismissively. The firefighters' rule and its values have
been superseded. The public policy of the State is now expressed
by L. 1993, c. 366 (Jan. 5, 1994). That enactment grants
firefighters, police officers, and emergency service personnel
the right to seek recovery for injuries, diseases, and death,
except when such losses are caused by a co-worker or an employer.
The Court could take advantage of this change of policy
reflected by the statute, which now abolishes the rule. This
legislative mandate constitutes a clarion expression of the
State's public policy. See, e.g., Pierce v. Ortho Pharmaceutical
Corp.,
84 N.J. 58, 71 (1980) (observing that public policy can be
expressed by legislation). It is confirmation that the values
undergirding the firefighters' rule "have become moribund and
have been replaced by a different set of values." See Renz v.
Penn Central Corp.,
87 N.J. 437, 456 (1981).
In light of the injustice and confusion, the quirks and
inconsistencies that attend the firefighters' rule, the doctrine,
which no longer reflects the common consent of the community,
ought not to be continued. The spirit of the common law calls
for a reassessment of the reasons that originally supported the
firefighters' rule. The legislative judgment is that those
reasons no longer comport with a sound public policy. Renz,
supra, 87 N.J. at 455. That legislation could be a powerful
catalyst for the Court to exert "[t]he creativity and the
flexibility of the common law . . . [to] devise standards
defining duty, proximate cause, and comparative negligence that
suitably address all the circumstances that surround an officer
who must respond to an emergency on behalf of a private citizen."
Rosa v. Dunkin' Donuts,
122 N.J. 66, 85 (1991) (Handler, J.,
dissenting).
The new legislation provides a statutory cause of action
for accidental injuries occurring on or after January 5, 1994.
It does not seem right that now, simply as a matter of judicial
preference, injured police officers and firefighters should
continue to be denied their right to seek recovery because of
this Court's refusal to abandon a "bizarre doctrine." Id. at 81
(Handler, J., dissenting). See generally Joseph Scholz, Rosa v.
Dunkin' Donuts: The Fireman's Rule Revisited,
44 Rutgers L. Rev.
405, 425 (1992) (arguing that Rosa "left the rule in a state of
doctrinal confusion"). That is especially so given the fact that
the judicially-created firefighters' rule itself is "ultimately
one of public policy." Krauth v. Geller,
31 N.J. 270, 273
(1960).