Krauth v. Geller

Citation31 N.J. 270,157 A.2d 129
Decision Date11 January 1960
Docket NumberNo. A-34,A-34
PartiesErnest M. KRAUTH, Plaintiff-Appellant, v. Israel GELLER and Buckingham Homes, Inc., a corporation of the State of New Jersey, also known as Buckingham Builders, Defendants-Respondents.
CourtUnited States State Supreme Court (New Jersey)

Harold R. Teltser, Newark, for plaintiff-appellant (Torppey & Teltser, attorneys; Harold R. Teltser, Newark, of counsel).

Edward E. Kuebler, Mountainside, for defendant-respondent, Israel Geller.

The opinion of the court was delivered by

WEINTRAUB, C. J.

This case involves the liability of the owner or occupier of lands to a fireman injured while discharging his duty as a public employee. Plaintiff obtained a judgment on a jury verdict. The Appellate Division reversed with the direction that judgment be entered for defendant. One judge dissented, agreeing that a reversal was required by errors in the charge to the jury, but concluding that upon the facts plaintiff could succeed on a retrial. 54 N.J.Super. 442, 149 A.2d 271 (1959). Plaintiff's appeal comes to us as of right. Constitution of 1947, Article VI, § 5, par. 1(b); R.R. 1:2-1(b). (Plaintiff has since passed away and his administratrix was substituted. "Plaintiff," as hereinafter used, refers to the deceased.)

We agree the judgment was properly reversed for the reasons upon which all members of the Appellate Division agreed. The sole matter that concerns us is the correctness of the holding of the majority that upon the most favorable view of the situation plaintiff must fail as a matter of law.

Much has been written with respect to the duty owed to and the status of a fireman who enters private property pursuant to his public employment. He is not a trespasser, for he enters pursuant to public right. Although it is frequently said he is a licensee rather than an invitee, it has been correctly observed that he falls within neither category, for his entry does not depend upon permission or invitation of the owner or occupier, nor may they deny him admittance. Hence his situation does not fit comfortably within the traditional concepts. Prosser, Torts (2d ed. 1955), § 78, p. 460; Shypulski v. Waldorf Paper Products Co., 232 Minn. 394 45 N.W.2d 549 (Sup.Ct.1951); Beedenbender v. Midtown Properties, 4 A.D.2d 276, 164 N.Y.S.2d 276 (App.Div.1957). His status being Sui generis, justice is not aided by appending an inappropriate label and then visiting consequences which flow from a status artificially imputed.

In what circumstances should the owner or occupier respond to the injured fireman? That the misfortune here experienced by a fireman was well within the range of foreseeability cannot be disputed. But liability is not always co-extensive with foreseeability of harm. 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, 156 A.2d 1 (1959); Wytupeck v. City of Camden, 25 N.J. 450, 461, 136 A.2d 887 (1957).

It is quite generally agreed the owner or occupier is not liable to a paid fireman for negligence with respect to the creation of a fire. 2 Harper and James, Torts (1956), § 27.14, p. 1503; Annotation 141 A.L.R. 584, 585 (1942); 13 A.L.R. 637 (1921); Villano v. Pure Oil Co., 62 N.J.Law J. 37 (Sup.Ct.1938). To our knowledge but one decision seems to run against this proposition. Houston Belt & Terminal Ry. Co. v. O'Leary, 136 S.W. 601 (Tex.Civ.App.1911), disapproved in Suttie v. Sun Oil Co., 15 Pa.Dist. & Co.R. 3, 7 (Cty.Ct.1930) and questioned in Bohlen, "The Duty of a Landowner Toward Those Entering His Premises of Their Own Right", 69 U.Pa.L.Rev. 252, fn. 39 (1920-21). The rationale of the prevailing 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, 155 A.2d 90 (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. Villano v. Pure Oil Co., supra (62 N.J.Law J. 37); Lunt v. Post Printing & Publishing Co., 48 Colo. 316, 110 P. 203, 30 L.R.A.,N.S., 60 (Sup.Ct.1910).

Although 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 fire fighting. Thus it has been held that a fireman may recover if the injurious hazard was created in violation of statute or ordinance. Bandosz v. Daigger & Co., 255 Ill.App. 494 (Ct.App.1930) (storage of dangerous substance); Maloney v. Hearst Hotels Corp., 274 N.Y. 106, 8 N.E.2d 296 (Ct.App.1937) (storage of dangerous substance); Drake v. Fenton, 237 Pa. 8, 85 A. 14 (Sup.Ct.1912) (failure to guard elevator shaft); But see Kelly v. Henry Muhs Co., 71 N.J.L. 358, 59 A. 23 (Sup.Ct.1904). So also, he has prevailed if the occupier failed to utilize an available opportunity to warn him of a hidden peril. Shypulski v. Waldorf Paper Products, supra (45 N.W.2d 549); Jenkins v. 313-321 W. 37th Street Corp., 284 N.Y. 397, 31 N.E.2d 503 (Ct.App.1940), rehearing denied 285 N.Y. 614, 33 N.E.2d 547 (Ct.App.1941); Schwab v. Rubel Corporation 286 N.Y. 525, 37 N.E.2d 234 (Ct.App.1941); James v. Cities Service Oil Co., 66 Ohio App. 87, 31 N.E.2d 872 (Ct.App.1939), affirmed 140 Ohio St. 314, 43 N.E.2d 276 (Sup.Ct.1942); Cities Service Oil Co. v. Dixon, 14 Ohio Law Abst. 203 (Ct.App.1932). And the land occupier has been held where he failed to exercise due care with respect to the condition of places intended as a means of access by contemplated visitors. Meiers v. Fred Koch Brewery, 229 N.Y. 10, 127 N.E. 491, 13 A.L.R. 633 (Ct.App.1920); Beedenbender v. Midtown Properties, Supra (164 N.Y.S.2d 276); Taylor v. Palmetto Theater Co., 204 S.C. 1, 28 S.E.2d 538 (Sup.Ct.1943); cf. Anderson v. Cinnamon, 365 Mo. 304, 282 S.W.2d 445, 55 A.L.R.2d 516 (Sup.Ct.1955); Bohlen, supra, (69 U.Pa.L.Rev. at p. 350). There are, of course, decisions the other way, but where liability is found the emphasis is not upon culpability with respect to the inception of the fire but rather with respect to the other risks of injury we have described.

The present case does not fall within any of the exceptions, if such they may be called, outlined in the paragraph above. Defendant was the owner and builder of a one family home under construction at the time of the occurrence. While proceeding along an interior balcony and meaning to descend the stairs, plaintiff mistook layers of smoke for them and fell. Neither the balcony nor the stairs were protected by a railing the construction simply had not reached that stage. No breach of duty could be found with respect to the condition of the premises. And defendant not being on the scene, there was no culpable failure to seize an opportunity to warn of a hidden danger. In fact, plaintiff, who had been on the premises a few days before the accident, admitted he was fully aware of the precise state of construction of the balcony and stairs.

What plaintiff seeks is an inroad upon the basic rule that the occupier is not liable to a fireman for the creation of a fire. Placing himself in the category of a licensee, or at least by analogy thereto, he urges defendant was guilty of "wanton" conduct. The allegedly wanton conduct occurred before plaintiff entered the premises...

To continue reading

Request your trial
150 cases
  • Walters v. Sloan
    • United States
    • United States State Supreme Court (California)
    • 28 November 1977
    ......Midwest Industries, Inc. (Ky.1964) 380 S.W.2d 96, 97-99; Jackson v. Velveray Corp. (1964) 82 N.J.Super. 469, 198 A.2d 115, 121; Krauth v. Geller (1960) 31 N.J. 270, 157 A.2d 129, 130-131.) 3 .         The earliest cases developed the fireman's rule within the context of ......
  • Nappe v. Anschelewitz, Barr, Ansell & Bonello
    • United States
    • United States State Supreme Court (New Jersey)
    • 2 July 1984
    ...... See King v. Patrylow, 15 N.J. Super. 429, 433 [83 A.2d 639] (App.Div. 1951); cf. Krauth v. Israel Geller and Buckingham Homes, Inc., 31 N.J. 270, 277 [157 A.2d 129] (1960); Egan v. Erie R. Co., 29 N.J. 243, 255 [148 A.2d 830] (1959); ......
  • Neighbarger v. Irwin Industries, Inc.
    • United States
    • United States State Supreme Court (California)
    • 27 October 1994
    ......205, 142 Cal.Rptr. 152, 571 P.2d 609, quoting Krauth v. Geller (1960) 31 N.J. 270, 157 A.2d 129, 130-131).) .         We confirmed these policy bases for the firefighter's rule in two ......
  • Mounsey v. Ellard
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 6 June 1973
    ......Midwest Indus., Inc., 380 S.W.2d 96 (Ky.); Krauth v. Geller, 31 N.J. 270, 157 A.2d 129; Spencer v. B. P. John Furniture Corp., 255 Or. 359, 467 P.2d 429) to which the occupier or owner owes a duty to ......
  • Request a trial to view additional results
2 books & journal articles
  • The Legal
    • United States
    • State Bar of Georgia Georgia Bar Journal No. 27-5, April 2022
    • Invalid date
    ...v. Peachtree S., Ltd., 182 Ga. App. 367, 368, 355 S.E.2d 717, 718 (1987). [5]Id. at 368, 355 S.E.2d at 718 (quoting Krauth v. Geller, 157 A.2d 129, 131 (N.J. 1960)). [6] Washington v. Atl. Richfield Co., 361 N.E.2d 282, 284 (Ill. 1976) (cited in Ingram, 182 Ga. App. at 368, 355 S.E.2d at 71......
  • Deontology, governmental action, and the distributive exemption: how the trolley problem shapes the relationship between rights and policy.
    • United States
    • University of Pennsylvania Law Review Vol. 146 No. 3, March - March 1998
    • 1 March 1998
    ...note 14 (setting forth these statistics). (16) Assumption of risk is an affirmative defense to tort liability. See, eg., Krauth v. Geller, 157 A.2d 129, 130-31 (NJ. 1959) (discussing the public-policy reasons for the "fireman's rule"--the doctrine of assumption of risk as applied to public ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT