Krauth v. Geller, No. A-34

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: WEINTRAUB
• Citation: 31 N.J. 270,157 A.2d 129
• Decision Date: 11 January 1960
• Docket Number: No. A-34
• Parties: Ernest 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.

Page 270

31 N.J. 270 157 A.2d 129 Ernest 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. No. A-34. Supreme Court of New Jersey. Argued Nov. 9, 1959.
Decided Jan. 11, 1960.

Page 272

[157 A.2d 130] 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,

Page 273

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 [157 A.2d 131] 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

Page 274

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...