Cella v. Interstate Properties

• Decision Date: 13 April 1989
• Citation: 232 N.J.Super. 232,556 A.2d 1262
• Parties: Joseph CELLA, Plaintiff-Appellant, v. INTERSTATE PROPERTIES, John Smith (a fictitious name for agent, servant and/or tenant), James Smith (a fictitious name for maintenance company), John Roes (a fictitious name as agent, lessee, controller and/or maintainer, John Doe (a fictitious name as installer, retailer), individually, jointly, severally and/or in the alternative, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 232

232 N.J.Super. 232

556 A.2d 1262

Joseph CELLA, Plaintiff-Appellant, v. INTERSTATE PROPERTIES, John Smith (a fictitious name for agent, servant and/or tenant), James Smith (a fictitious name for maintenance company), John Roes (a fictitious name as agent, lessee, controller and/or maintainer, John Doe (a fictitious name as installer, retailer), individually jointly, severally and/or in the alternative, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Feb. 28, 1989.

Decided April 13, 1989.

Laurence P. Bafundo, for plaintiff-appellant (Friedman, Bafundo, Ginsberg & Porter, attorneys; Laurence P. Bafundo, Cherry Hill, on the letter brief).

John Varjabedian, for defendants-respondents (John Varjabedian, Ocean City, on the letter brief).

Before Judges ANTELL, DREIER and CONLEY (temporarily assigned).

The opinion of the court was delivered by

DREIER, J.A.D.

Plaintiff appeals from a summary judgment granted in the Law Division dismissing his negligence complaint against Interstate Properties, the owner and operator of a shopping center located in Washington Township. At the time of his accident, plaintiff was a police sergeant on patrol. After calling on his radio for a backup, plaintiff exited his vehicle to investigate a suspicious car located in the shopping center's parking lot. He fell when he slipped on ice that had formed in a depressed area of the lot.

We are somewhat hampered in our decision of this matter by the lack of a detailed record. Plaintiff's counsel has filed a certification pursuant to R. 2:5-3(e) in lieu of a transcript. By that certification we are informed that the decision was rendered on the return date of a motion to strike the complaint by virtue of the application of the "fireman's rule." This motion, basically one for summary judgment, was decided without oral argument on the basis of briefs submitted to the trial judge. No certifications were submitted. However, attached to the trial briefs were an extract from plaintiff's answers to interrogatories (submitted by defendant) and plaintiff's initial expert's report claiming that the lot was improperly maintained in that it contained a depression likely to collect water which would freeze in cold weather (submitted by plaintiff). ¹ Plaintiff opposed the motion on the basis that the fireman's rule did not apply to this accident and that he had not completed discovery. Notwithstanding the requirements of R. 1:7-4 and 4:46-2 requiring an oral statement of reasons or a written opinion, the trial judge merely entered an order granting defendant's motion. We therefore do not have the benefit of his reasoning.

In analyzing the case before us, we first realize that plaintiff had not completed discovery. We will therefore assume that the facts plaintiff would finally be able to prove are those he was expecting to discover, namely, that the alleged negligently maintained condition (the broken pipe and collection of water which would freeze at appropriate temperatures) had existed for some time. Perhaps there had even been prior accidents at the site, thus putting the owner on notice of the dangerous condition. We further must give plaintiff all reasonable inferences that can be drawn from the facts. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74, 110 A.2d 24 (1954).

Defendant, however, might well assert that it should not be required to make any efforts to alleviate the slippery condition at 4:30 in the morning when it would be highly unlikely for any pedestrian to be on the property, since any implied invitation to the public would be limited to those hours just before the shopping center opened to just after it closed. Defendant might further claim that it was its policy to spread sand or salt over slippery areas of the parking lot before it opened in the morning and to inspect the lot during the day until the parking lot closed; thus it was not unreasonable to allow the slippery condition on the lot to go unattended at 4:30 a.m. Depending upon a jury's resolution of these factual issues, plaintiff may or may not prevail.

This case presents for adjudication, not a direct application of the fireman's rule, but rather a parallel issue never directly adjudicated in an appellate opinion, namely: What duty does a property owner owe to a police officer when the officer is investigating a situation not caused by the owner, and the accident occurs at a time when or location where no member of the public is expected to be present?

As noted in Mahoney v. Carus Chemical Co. Inc., 102 N.J. 564, 582, 510 A.2d 4 (1986):

Case law draws a distinction between injury stemming from the negligence that brought the firefighters or police to the scene in the first place, and injury suffered from independent causes that follow.

The Supreme Court, quoting from a California case where firefighters encountered dangerous chemicals after they were told there would be no toxic substances in the building, stated that "[a] fireman assumes only those hazards which are known or can reasonably be anticipated at the site of the fire." Id. at 582-583, 510 A.2d 4. See also Wietecha v. Peoronard, 102 N.J. 591, 595, 510 A.2d 19 (1986), a companion case to Mahoney, where the court reiterated "that independent and intervening negligent acts that injure the safety officer on duty are not insulated [by the fireman's rule]."

In Berko v. Freda, 93 N.J. 81, 459 A.2d 663 (1983), the Court explained the basis for the fireman's rule and its inapplicability to the property owner's responsibility for conditions other than those which caused the officer to be called to the premises.

[T]he 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.... 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. [Id. at 88, 459 A.2d 663; emphasis supplied].

An additional application of this principle was stated in Mahoney v. Carus Chemical Co. Inc., supra, where the Court, after a lengthy discussion concerning the fireman's rule's exception for willful, wanton or intentional conduct, stated:

Plaintiff has carefully crafted the allegations of his complaint to seek to allege circumstances not covered by the 'fireman's rule'.... We are satisfied that there are other allegations set forth in the complaint that raise triable issues of facts as to whether these defendants are excused from liability because of the 'fireman's rule.' It may be that plaintiffs will not be able to demonstrate that, in fact, the injuries were the proximate result of the defendants' failure to warn of the structural makeup of the building or a hidden defect in that structure, or of its subsequent negligence in failing properly to combat the fire once it had commenced on the premises. Suffice it to say that those questions are for the finder of fact to resolve. [102 N.J. at 583, 510 A.2d 4; emphasis supplied].

See also Krauth v. Geller, 31 N.J. 270, 157 A.2d 129 (1960), where the court noted that liability could be imposed "for negligence with respect to conditions creating undue risks of injury beyond those inevitably involved in fire fighting." Krauth at 274, 157 A.2d 129.

While the cited Supreme Court cases have stated in dictum that a police or fire officer has a cause of action against a property owner, there has been no appellate definition of the responsibility owed by the property owner where the fireman's rule does not provide immunity. There are, however, reported Law Division decisions on this point. In two cases the judges mistakenly applied the fireman's rule and held that, based on the facts before them, the emergency personnel had no cause of action against the property owners. In a third decision, the property owner was held liable to the officer. A fourth case, not strictly on this point, discusses the issue in dicta.

In Maryland Cas. Co. v. Heiot, 224 N.J.Super. 441, 540 A.2d 920 (Law Div.1988), the court, applying an assumption of risk analysis suggested in Krauth, determined that the fireman's rule would bar an action against a property owner for accumulated ice on the edge of the front steps of defendant's house. The defendant had fallen from her walker inside the house and required emergency medical attention. When the firefighter determined that materials were needed from the ambulance, he exited the house and slipped on the ice. The judge determined that

[a] firefigher responding to such an emergency call has no reasonable expectation that the property has been made safe for his arrival. One engaged in this occupation does not determine whether to respond to an emergency call based on weather conditions. This is because a firefighter is likely to enter at unforeseeable times under emergent circumstances. In other words weather is one of the 'inherent risks of (this) calling.' Cf. Krauth, supra, 31 N.J. at 274, 157 A.2d 129. [224 N.J.Super. at 444-445, 540 A.2d 920].

Under those circumstances, the judge determined that the case before her did "not present a situation where the landowner failed to warn of a hidden peril." Id. at 445, 540 A.2d 920.

In Williams v. Levitt, 213 N.J.Super. 604, 517 A.2d 1242 (Law Div.1986), the court took a different approach leading to the same result. There a police officer was injured while inspecting defendants' property after being summoned by a burglar alarm. While crossing the yard, the officer stepped into a hole hidden by the evenly-mowed grass. The court granted summary judgment, reasoning that a citizen seeking police aid should not "be expected to insure that no condition even remotely giving rise to liability exists...