Oliver Brown Trucking Co., Inc. v. Flexon Industries Corp.
| Decision Date | 21 October 1988 |
| Parties | OLIVER BROWN TRUCKING COMPANY, INC.; Oliver Brown and Carrie Brown, Plaintiffs, v. FLEXON INDUSTRIES CORPORATION; Anthony Lamont Hayes; Carolyn Hayes, As Parent and Guardian for Anthony Lamont Hayes; Carolyn Hayes, Individually; Thomas Joseph Kukish, Jr.; Patricia Marie Buck, As Parent and Guardian for Thomas Joseph Kukish, Jr.; and Patricia Marie Buck, Individually, Cecil ALLEN, Plaintiff, v. OLIVER BROWN TRUCKING COMPANY, INC., Gilbert LANGFORD, Plaintiff, v. OLIVER BROWN TRUCKING COMPANY, INC., Defendant, Lloyd CROOKS, Plaintiff, v. OLIVER BROWN TRUCKING COMPANY, INC., Defendant, William WOLLEY, Plaintiff, v. OLIVER BROWN TRUCKING COMPANY, INC., Defendant, Allan Price KIRBY, III, Plaintiff, v. OLIVER BROWN TRUCKING COMPANY, INC., Defendant, PLYMOUTH APEX COMPANY and Flexon, Plaintiffs, v. OLIVER BROWN TRUCKING COMPANY, INC., Defendant. |
| Court | New Jersey Superior Court |
Clifford N. Kuhn, for plaintiffs Lloyd Crooks and Gilbert Langford (Sherman, Kuhn, Justin & Wilson, attorneys).
Jay Krivitzky, for plaintiff William Wolley (Krivitzky & Springer, attorneys).
Anthony D. Rinaldo, for plaintiff Cecil Allen (Rinaldo & Rinaldo, attorneys).
Howard Mankoff, for defendant Flexon Industries Corp. (Greenberg, Margolis, Ziegler, Schwartz, Dratch, Fishman, Franzblau & Faulkin, attorneys).
Mark C. Antin, for plaintiffs Oliver Brown Trucking (Gennet & Kallman, attorneys).
Edward Brinkmann, Jr., for defendant Carolyn Hayes (Union County Legal Services, attorneys).
Anthony J. Riposta, for plaintiff Allan Price Kirby, III.
Mark M. Bridge, for plaintiffs Plymouth Apex Co., Inc. and Flexon Industries Corp. (Cozen & O'Connor, attorneys).
Barbara C. Robertson, for defendant Oliver Brown Trucking Co., Inc. (Hoagland, Longo, Oropollo & Moran, attorneys).
This is defendant's motion for summary judgment seeking to bar the claims of plaintiffs, firemen who were injured during the course of fighting a fire, based on the application of the firemen's rule.
The primary question in this case is whether an owner of property who knowingly maintains a defective sprinkler system violates a duty to a fireman injured while on the premises fighting a fire.
The firemen's rule holds that an owner or occupier of property is not liable to a fireman for negligence with respect to the creation of a fire. Krauth v. Geller, 31 N.J. 270, 157 A.2d 129 (1960). The rule does not apply to willful and wanton conduct which is defined as a "deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences." Mahoney v. Carus Chemical Co., Inc., 102 N.J. 564, 575, 510 A.2d 4 (1986).
Plaintiffs are firemen who were injured as a result of the inhalation of noxious chemical fumes during the course of extinguishing a fire caused by an arsonist at defendant's premises. The premises stored combustible chemicals and contained a sprinkler system which was faulty and which violated both a local ordinance and a statute. Defendant was fully aware of this fact prior to the fire. The arsonist had gained entry into the premises through a door which defendant knew was unlocked. Plaintiffs contend that these facts constitute willful and wanton conduct for which defendant must respond to plaintiffs in damages.
This court disagrees. Neither the stored chemicals nor the faulty sprinkler system had anything to do with the intentional act of the arsonist in starting the fire. Nor have plaintiffs been able to point to any facts which would indicate that defendant was aware of prior entries into the building or of surrounding buildings to show that defendant was able to foresee the act of the arsonist. See Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982). There has been, therefore, no showing by plaintiffs that defendant's conduct was willful and wanton so as to take it out of the application of the firemen's rule.
Plaintiffs also argue, however, that irrespective of the question of negligence with regard to the creation of the fire, defendant's conduct in storing combustible material, and his knowing maintenance of a faulty sprinkler system, was an independent act of negligence which subjected plaintiffs to an undue risk of injury for which he must respond to plaintiffs in damages.
The firemen's rule does not excuse an owner from liability where he is guilty of misconduct which is independent of the causes which started the fire, and which creates an undue risk of injury beyond those normally assumed by a firefighter.
In Krauth, supra, 31 N.J. 270, 157 A.2d 129, the Court stated:
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 owner for negligence with respect to conditions creating undue risks of injury beyond those inevitably involved in fire fighting. [at 274, 157 A.2d 129]
And, in Berko v. Freda, 93 N.J. 81, 459 A.2d 663 (1983), the Supreme Court said:
Case law draws a distinction between injuries stemming from the negligence that brought the firefighters ... to the scene in the first place and injury suffered from independent causes that may follow. [at 85, 459 A.2d 663]
However, the mere fact that combustible material was stored in the premises without a showing that its storage was somehow dangerous (i.e., illegally stored, improperly packaged, etc.) is not in itself negligence.
With regard to the sprinkler system, it is clear that it was faulty and violated both the municipal fire prevention code, which requires that fire protection equipment must be maintained in an operative condition, and the statute, N.J.S.A. 34:6A-4, which requires that an owner protect his employees against the origin and spread of fire.
The question, however, is whether defendant's knowledge of the faulty sprinkler system constituted negligent conduct, and if it did, whether such negligence created an undue risk "beyond those inevitably involved in fire fighting." The answer to the question depends on whether defendant had either a statutory or common law duty of care which he owed to plaintiffs to keep and maintain the sprinkler system in good order. Plaintiffs contend that there was such a duty and that it was violated. Again, this court disagrees.
There is nothing in the Plainfield ordinance which in anyway hints at the fact that a fire sprinkler system must be maintained for the benefit of the fireman called to the premises to fight a fire. As a matter of fact, there is every indication that the purpose of the ordinance is to provide protection only for those persons who occupy or otherwise utilize the premises. 1
The focus of the statute, N.J.S.A. 34:6A-4, is clear. It is a section of the "Worker Health and Safety Act," and is specifically directed at insuring the well being of an employee by imposing a duty on "every employer ... to ... furnish a place of employment which shall be reasonably safe and healthful to employees." N.J.S.A. 34:6A-3. Rules of statutory construction hold that where a statute or ordinance specifically mentions a class of persons covered, exclusion of other classes is thereby implied. 2A Sutherland, Statutory Construction (Sands ed. 1984), § 47.24 at 203.
Since neither the ordinance nor the statute is intended for the protection of firemen who come upon the premises for the purpose of fighting a fire, no statutory duty was owed by defendant to plaintiffs to maintain an adequate sprinkler system.
A Kentucky case, Buren v. Midwest Industries, Inc., 380 S.W.2d 96 (Ky.1964), addressing a similar issue, said The ordinances involved here do not specify for whose protection or benefit they are intended. It is our opinion that such laws are for the protection of the lives and property of all persons who in their rightful pursuits may be affected involuntarily by a fire in or spreading from the premises to which the laws apply. That compliance with fire safety ordinances will necessarily have the effect of reducing the hazards of fire-fighting, however, is no more than incidental to the primary objective of fire prevention and control. The fact is that in the performance of his official function the fireman is a part rather than an object of fire prevention and control. [at 98]
There is, however, a common law duty of care that an owner owes to persons who enter upon his land, independent of any statutory duty which may exist. In the case of public officers, the duty that is owed is the duty of reasonable care owed to an invitee.
In Caroff v. Liberty Lumber Co., 146 N.J.Super. 353, 369 A.2d 983 (A.D.1977), the court said:
We ... hold that when a public official enters upon premises in the performance of his duties, he has, irrespective of the specific nature of his mission, the status of an invitee in respect of personal injury which he sustains while making the same use of the premises which any other invitee should have been reasonably anticipated to have made. [at 361, 369 A.2d 983]
Thus, a fireman who enters a property for a purpose other than to fight a fire may be doing so at the expressed or implied invitation of the owner, and is therefore, an invitee to whom there is a duty of reasonable care. Walsh, et al. v. Madison Park Properties, Ltd., 102 N.J.Super. 134, 245 A.2d 512 (A.D.1968) (). A fireman who enters property for the purpose of fighting a fire, however, cannot be said to have entered on the business of the owner, and thus, upon his implied or express invitation. He is, therefore, not an invitee. On the other hand, he is not a licensee, because he enters the land not for his own purpose, but for the purpose of extinguishing a fire which is in the interest of the owner and the public. His status is, therefore, a hybrid one which does not fit neatly in any of the two classifications.
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