Chipps v. Newmarket Condominium Ass'n

• Decision Date: 11 May 1988
• Parties: Mark E. CHIPPS and Barbara G. Chipps, Plaintiffs, v. NEWMARKET CONDOMINIUM ASSOCIATION and John Doe, Defendants.
• Court: New Jersey Superior Court

Page 144

228 N.J.Super. 144

549 A.2d 66

Mark E. CHIPPS and Barbara G. Chipps, Plaintiffs, v. NEWMARKET CONDOMINIUM ASSOCIATION and John Doe, Defendants.

Superior Court of New Jersey, Law Division,

Hunterdon County.

Decided May 11, 1988.

John R. Lanza, Jr., Flemington, for plaintiffs (Thatcher & Lanza, attorneys).

Susan Russo, Clinton, for defendants (Morrow, Benbrook & Curzi, attorneys; Donald W. Morrow and Susan Russo, on the brief).

GRIFFIN, J.S.C. (retired and temporarily assigned on recall).

Officer Chipps (Chipps) had been on foot patrol, checking the rear doors of buildings along Main Street in Flemington, New Jersey. He had checked the rear doors of a building owned by defendant Newmarket Condominium Association (Newmarket), and was descending a flight of outside stairs when he stumbled. He reached for a handrail to his right but could not get a firm grip because the handrail was too wide. The top of the handrail was about seven inches wide. He fell. He sues alleging serious injuries.

Newmarket has moved for summary judgment arguing that, as a matter of law, the fireman's rule precludes recovery.

The fireman's rule was adopted in New Jersey in Krauth v. Geller, 54 N.J.Super. 442, 149 A.2d 271 (App.Div.1959), aff'd 31 N.J. 270, 157 A.2d 129 (1960). Krauth, a salaried fireman, sustained injuries when he fell from a balcony on which the railing had not yet been installed. The house was under construction when the fire occurred. Fireman Krauth's jury verdict was reversed on appeal. In affirming the appellate decision, the Supreme Court said:

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 workman's compensation benefits for the consequences of the inherent risks of the calling. [31 N.J. at 274, 157 A.2d 129] The Supreme Court added, "[a]lthough there is virtual unanimity with respect to non-liability for negligence as to the creation of fire, there is appreciable authority which would impose liability upon the land occupier for negligence with respect to conditions creating undue risks of injury beyond those inevitably involved in firefighting." Ibid.

Then the court gave some examples in which a land occupier would be liable: a) if the injurious hazard was created in violation of statutes or ordinance; b) where the occupier failed to utilize an available opportunity to warn the fireman of a hidden peril; and c) where the land occupier failed to exercise due care with respect to the condition of places intended as a means of access by contemplated visitors.

The fireman's rule was first extended to police officers in Berko v. Freda, 172 N.J.Super. 436, 412 A.2d 821 (Law Div.1980), aff'd 182 N.J.Super. 396, 442 A.2d 208 (App.Div.1982), aff'd 93 N.J. 81, 459 A.2d 663 (1983). Police Officer Berko was attempting to remove Harrigan from a car that Harrigan had stolen when Harrigan's foot hit the gas pedal, dragging Berko along and causing him injury. Officer Berko named Freda, the car owner, as a defendant for negligently leaving his keys in the car. The Supreme Court held that a police officer is precluded from recovering for acts of ordinary negligence which create the occasion for the police officer's presence at the place where he is injured. 93 N.J. at 89, 459 A.2d 663.

Police officers may recover, however, for injuries suffered from independent causes that may follow the officer's presence at the scene necessitating his initial presence, id. at 85, 459 A.2d 663, or from a subsequent act of negligence, id. at 91, 459 A.2d 663.

There are two reported Law Division cases which applied the fireman's rule to bar recovery for injuries caused by negligence. The officers were in the course of duty. There was no negligence which bought them to the scene. Each case arose on a motion for summary judgment, hence, the negligence of defendant was assumed for the purpose of the decision. All of these factors are present in the case at bar.

The two cases are Williams v. Levitt, 213...