Berko v. Freda

• Decision Date: 25 January 1982
• Citation: 182 N.J.Super. 396,442 A.2d 208
• Parties: John BERKO, Plaintiff-Appellant, v. Ralph FREDA, Defendant-Respondent, and Paul Harrigan, Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 396

182 N.J.Super. 396

442 A.2d 208

John BERKO, Plaintiff-Appellant, v. Ralph FREDA, Defendant-Respondent, and Paul Harrigan, Defendant.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 12, 1982.

Decided Jan. 25, 1982.

Stanley W. Greenfield, Elizabeth, for plaintiff-appellant (Douglas C. Greenfield, Elizabeth, attorney; Stanley W. Greenfield, attorney and on the brief).

Daniel K. Van Dorn, Millburn, for defendant-respondent (McDermott & McGee, Millburn, attorneys; Daniel K. Van Dorn, of counsel and on the brief).

Before Judges MICHELS, McELROY and J. H. COLEMAN.

PER CURIAM.

We affirm the summary judgment of the Law Division solely on the ground that the fireman's rule applies to a policeman in the context of this case, substantially for the reasons expressed by Judge Griffin in Part II of his written opinion reported in Berko v. Freda, 172 N.J.Super. 436, 440-442, 412 A.2d 821 (Law Div. 1980). See Trainor v. Santana, 86 N.J. 403, 407-408, 432 A.2d 23 (1981) (commenting on dictum in the Appellate Division's opinion in Trainor which criticized the trial court's application of the fireman's rule in this case and expressly holding that Hill v. Yaskin, 75 N.J. 139, 380 A.2d 1107 (1977), "lacked precedential value insofar as the application of the fireman's rule (to policeman) was concerned").

Since we have affirmed the judgment on the basis that the fireman's rule applied to the policeman in the circumstances of this case, it is unnecessary for us to consider the other ground advanced by the trial judge in support of the summary judgment, to wit, that "as a matter of law, a reasonably prudent person would not foresee that his act of leaving the keys in the car would result in the use of the car as a weapon." Berko v. Freda, supra, 172 N.J.Super. at 439, 412 A.2d 821. Our failure to consider this issue should not be construed as an approval of the trial judge's holding with respect thereto. Cf. Trentacost v. Brussel, 82 N.J. 214, 220-223, 412 A.2d 436 (1980); Braitman v. Overlook Terrace Corp., 68 N.J. 368, 380-383, 346 A.2d 76 (1975); Zinck v. Whelan, 120 N.J.Super. 432, 444-451, 294 A.2d 727 (App.Div.1972).

Affirmed.