Jackson v. Velveray Corp.

• Decision Date: 04 March 1964
• Docket Number: No. A--761,A--761
• Parties: Cecelia M. JACKSON, etc., Plaintiff-Respondent, v. VELVERAY CORPORATION et al., Defendants-Appellants. Harry WEISS et al., Plaintiffs-Respondents, v. VELVERAY CORPORATION et al., Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 469

82 N.J.Super. 469

198 A.2d 115

Cecelia M. JACKSON, etc., Plaintiff-Respondent, v. VELVERAY CORPORATION et al., Defendants-Appellants.

Harry WEISS et al., Plaintiffs-Respondents, v. VELVERAY CORPORATION et al., Defendants-Appellants.

No. A--761.

Superior Court of New Jersey Appellate Division.

Argued Dec. 2, 1963.

Decided March 4, 1964.

William F. Harth, Newark, for appellants (McKeown, Harth & Enright, Newark, attorneys).

Alfred A. Burns, Passaic, for respondents (Nitto & Nitto, Passaic, attorneys, Harold M. Nitto, Passaic, of counsel and on the brief).

Before Judges CONFORD, FREUND and SULLIVAN.

The opinion of the court was delivered by

SULLIVAN, J.A.D.

Defendants, pursuant to leave granted by this court, appeal from an order of the trial court setting aside a jury verdict of no cause for action in favor of defendants and ordering a new trial of the matters in issue.

The respective consolidated actions herein were for wrongful death and personal injuries sustained by paid firemen while fighting a fire in the line of duty. The fire occurred on February 17, 1960, and destroyed a large factory building which was located on the boundary line separating the cities of Passaic and Clifton. Plaintiffs Harry Weiss and Edward B. Nolan were paid firemen of the Passaic Fire Department, who sustained personal injuries while fighting the fire. They brought suit for damages for such injuries. William Jackson who also was a paid fireman of the Passaic Fire Department, suffered injuries while fighting the fire, from which he subsequently died. His widow , who was appointed general administratrix Ad prosequendum of his estate, brought suit for damages for his wrongful death.

The trial of the consolidated actions took about eight days. Plaintiffs called some 23 witnesses and also put in evidence numerous exhibits. Defendants cross-examined a number of plaintiffs' witnesses but did not present any proofs of their own. As heretofore noted, at the conclusion of the case the jury returned a verdict of no cause for action in favor of defendants. Plaintiffs thereupon moved for a new trial, which was granted, the trial court ruling that on an unbiased and fair evaluation of the evidence it did not see how the jury could have reasonably come to its verdict.

The evidence in the case showed that the property in question was a four-story brick building owned by defendant Raywin Realty Co., Inc. As heretofore noted, the building was partly in Passaic and partly in Clifton. Defendant Velveray Corporation (Velveray), which was in the business of textile printing and laminating and plastic printing, was a tenant in said building, occupying the first floor and part of the basement.

On February 17, 1960, at about 8:45 A.M., a fire broke out in an overhead exhaust fan located on the first floor of the building. Employees of Velveray attempted to put the fire out with extinguishers. However, a guard at the Manhattan Rubber plant across the street saw flames and smoke coming out of a first-floor window and had a telephone call made to the Clifton Fire Department. The call was made about 8:55 A.M., and Clifton fire apparatus arrived at the scene shortly thereafter. In the beginning the fire was believed to be minor. However, it soon spread to the upper floors and eventually engulfed the entire building. The Passaic Fire Department was called about 9:35 A.M. Sometime after 10 A.M.--plaintiff Weiss fixed the time at between 10:15 and 10:30 A.M.--a portion of an upper wall of the building blew out or collapsed. Firemen Jackson, Weiss and Nolan were outside the building at the time, in the process of 'hooking up' the water tower apparatus which had been pulled up alongside the factory building. Jackson and Nolan, who were working on the ground, were struck by debris from the falling wall. Weiss, who was working on a fire truck, jumped clear of the falling debris but in doing so was injured.

It is charged that fireman Jackson's death, and the injuries sustained by firemen Weiss and Nolan, resulted from their being exposed to and undue risk of injury beyond that inevitably involved in fire fighting, which risk was created by conditions attributable to defendants' negligence. These conditions may be summarized as follows:

(1) Alleged negligence in maintenance and operation of sprinkler system.

(2) Alleged storage and use of inflammables contrary to Clifton ordinance.

(3) Failure to call the fire department.

(4) Failure to have a trained fire brigade among its employees.

(5) Alleged cracks and openings in the flooring of the building.

(6) Poor housekeeping in defendants' plant, all of which contributed to the spread of the fire.

The rationale of plaintiffs' asserted cause of action is that the aforesaid conditions attributable to defendants' negligence caused the fire to spread rapidly and engulf the entire building. The intensity of the fire generated a mass of heat, smoke and gases which, triggered by the introduction of oxygen through ventilation, built up pressure within the building. When the upper wall became unable to withstand the pressure, it was pushed out and collapsed.

Plaintiffs' theory of liability is based upon our Supreme Court's opinion in Krauth v. Geller, 31 N.J. 270, 157 A.2d 129 (1960). In that case the court stated that there is virtual unanimity that the owner or occupier of property is not liable to a paid fireman for negligence with respect to the creation of the fire. It also added that there was 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 fire fighting. (31 N.J. at p. 274, 157 A.2d at p. 131). Several out-of-state decisions were referred to in which it was held that a fireman could recover for injuries resulting from risks created by the violation of a statute or ordinance, the condition of the means of access, the storage of a dangerous substance, or from a hidden peril. However, the court noted that where liability was found, the emphasis was not upon culpability with respect to the inception of the fire, but with respect to the other risks of injury. While Krauth does not expressly so state, we understand it to mean that the undue risk rule is to be followed in this State.

In its opinion the Supreme Court also discussed an owner's or occupier's possible liability to a fireman for wanton misconduct. Krauth, supra, 31 N.J. at p. 277, 157 A.2d at p. 132. However, we need not consider this basis since, as heretofore noted, plaintiffs herein have based their claim solely upon the theory of undue risk and do not suggest that defendants' actions spell out wanton misconduct.

A fireman who enters upon private property has been frequently said to be a licensee only, to whom no duty is owed except to refrain from acts of wilful and wanton negligence. See Annotation, 'Duty and liability of owner or occupant of premises to fireman or policeman coming thereon in discharge of his duty,' 86 A.L.R.2d 1205, § 4 (1962). However, the Supreme Court of Illinois has recently held that a fireman was not a mere licensee and could maintain a cause of action against a landowner for failure to exercise reasonable care in the maintenance of his property. Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 86 A.L.R.2d 1184 (Sup.Ct. 1960). Our Supreme Court in Krauth, supra, steers a middle course by holding that the status of a fireman is sui generis, and that in entering on private property he is neither trespasser nor licensee nor invitee as such.

The general rule as to the nonliability of an owner or occupant to a paid fireman for negligence is often stated in terms of nonliability for negligence in Creating or Starting a fire. Krauth, supra, 31 N.J. at p. 274, 157 A.2d at p. 131; 2 Harper and James, Law of Torts, § 27.14, p. 1503 (1956); 65 C.J.S. Negligence § 35, p. 494. However, it seems clear that on principle such rule of nonliability extends not only to negligence in creating or starting the fire but also includes negligence related to the spread of the fire, such as ordinary negligence in housekeeping which tends to promote the spread of a fire after its inception from other causes. Indeed, the two situations are often indistinguishable. Correspondingly, the exception to the foregoing rule, namely, an owner's or occupier's liability for creating undue risks of injury beyond those inevitably involved in fire fighting, applies not only to the start of the fire but also its spread, e.g., cases involving the storage of a dangerous substance.

Plaintiffs, in their brief filed on this appeal, argue that an owner or occupier is also liable for active negligent conduct after he is aware a fire is in progress, which negligent conduct changes the course of events naturally flowing from the fire, thus creating undue risks not otherwise inevitably involved in fire fighting. This contention, however, is but a restatement of the undue risk exception, supra, insofar as it applies to the spread of the fire.

It is important to understand what is meant by 'undue risks of injury beyond those inevitably involved in fire fighting.' Krauth, supra, 31 N.J. at p. 274, 157 A.2d at p. 131. We take the phrase 'inevitably involved' to mean 'inherent.' There are certain risks inherent in fire fighting: smoke, flame, and the like. The collapse of a floor, ceiling or wall of a burning building, without more, is a hazard a fireman must ordinarily anticipate. Undue risk beyond these inherent hazards is something more. It includes hidden perils, such as an open elevator shaft, storage of dangerous substances, and other conditions independent of the fire itself. As the Supreme Court noted in Krauth, supra, 31 N.J. at p. 275, 157 A.2d at p. 931, 'where liability is found the emphasis is not upon culpability with respect to the inception (and we include the spread) of the fire but rather with respect...