Walsh v. Madison Park Properties, Limited

• Citation: 245 A.2d 512,102 N.J.Super. 134
• Decision Date: 12 July 1968
• Docket Number: No. A--97,A--97
• Parties: Francis WALSH and Frank Bernat, Plaintiffs-Appellants, v. MADISON PARK PROPERTIES, LTD., Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 134

102 N.J.Super. 134

245 A.2d 512

Francis WALSH and Frank Bernat, Plaintiffs-Appellants, v. MADISON PARK PROPERTIES, LTD., Defendant-Respondent.

No. A--97.

Superior Court of New Jersey

Appellate Division.

Argued March 4, 1968.

Decided July 12, 1968.

Howard L. Ballen, Passaic, for appellants (Goldstein & Ballen, Passaic, attorneys, Paul O'Rourke, So. Orange, of counsel and on the brief).

Mark D. Larner, Newark, for respondent (Budd, Larner, Kent & Gross, Newark, attorneys, Mark D. Larner, Newark, on the brief).

Before Judges CONFORD, COLLESTER and LABRECQUE.

The opinion of the court was delivered by

LABRECQUE, J.A.D.

Plaintiffs Francis Walsh and Frank Bernat appeal from a judgment in favor of defendant following granting of defendant's motion for involuntary dismissal at the close of their case.

The case was tried before the court and a jury. From the proofs as they existed at the close of plaintiffs' case, the jury could have found that plaintiffs were members of the Fire Department of the City of Passaic and on March 23, 1965 were detailed (with two other firemen) to duty which involved the inspection of fire escapes and other safety equipment in buildings in the City of Passaic. In the performance of their duty they were required to inspect defendant's building at 376 Paulison Avenue, Passaic. After making the purpose of their visit known to the wife of the superintendent of the building, they made a visual check of the outside fire escape prior to proceeding with their inspection.

The fire escape consisted of a series of iron balconies on the front of the building which were connected to one another by iron ladders. The connection to the ground was by way of an iron ladder which normally was held in an elevated position by a counterweight which was joined to it by a wire rope which passed over a pulley above. In normal operation, when the balance between the ladder and the counterweight would be overcome by pulling on the ladder or by the weight of a person standing on it, the ladder would be lowered until it reached the ground. When released the ladder would normally return to the raised position. If the ladder could not be moved and continued to stick, it was the duty of the inspector to report it to the Fire Prevention Bureau.

When the visual check revealed nothing amiss Walsh and Bernat, following normal procedure, proceeded to pull on one of the rungs of the hanging ladder with a 'pike pole' for the purpose of attempting to draw it down to ground level. When it failed to move and a further visual inspection revealed no apparent defect, they concluded, allegedly relying on past experience, that the ladder was stuck because of paint or rust. They thereupon proceeded to put up an extension ladder next to it and, while Walsh steadied the ladder, Bernat climbed up and first attempted to loosen the stuck ladder by shaking it. When it did not immediately move Bernat put his left foot on one of its rungs. When he did so the ladder started to move and descended at such a rate of speed that Bernat was forced to 'ride' it to the sidewalk level. As he stepped away from it into the sidewalk the pulley and its supporting bracket came down, causing both plaintiffs to be injured. The pulley and bracket presumably had broken away, or come loose from their point of attachment at the fourth floor level.

At the conclusion of plaintiffs' case defendant's motion for involuntary dismissal was granted on the ground that (1) the defendant, as landowner, was obligated to give protection only against known defects; (2) proof was lacking that defendant had knowledge of any defect which could have occasioned plaintiffs' injuries; (3) Res ipsa loquitur was not applicable; (4) the statutory obligation to keep fire escapes in tenement houses in good repair, N.J.S.A. 55:3--8, ¹ did not apply for the benefit of plaintiffs. Plaintiffs appeal from the concomitant judgment.

Initially, we note that the trial judge made certain findings of fact in connection with his consideration of defendant's motion, made pursuant to R.R. 4:42--2(b), for dismissal. The trial judge was not called upon to make factual findings, but rather, to determine whether, accepting plaintiffs' evidence as true and giving them the benefit of all favorable inferences to be drawn therefrom, reasonable minds could differ as to whether liability had been established. Bell v. Eastern Beef Co., 42 N.J. 126, 199 A.2d 646 (1964). We assume that in making his 'findings' the trial judge was referring to such inferences as the jury could have drawn from its favorable consideration of plaintiffs' proofs.

The questions presented are: (1) What is the status of a fireman assigned to inspect the fire escape apparatus on premises and what is the degree of care owing to him while on the premises in such capacity? (2) Assuming that his status is that of a business invitee, so that the landowner would be liable to him for ordinary negligence, did the facts call for application of Res ipsa loquitur? (3) Wholly aside from any obligation owing to him as a fireman-inspector, may liability be predicated upon the owner's alleged violation of N.J.S.A. 55:3--8, then in effect?

As we read his oral conclusions, the trial judge was of the opinion that plaintiffs occupied the status of firemen engaged in the performance of their general duty of fighting fires, under the rule laid down in Krauth v. Geller, 31 N.J. 270, 157 A.2d 129 (1960), and since there was no proof that defendant knew (or was chargeable with knowledge) of the defect which caused plaintiffs' injuries, there had been no breach of duty. We hold that he was in error in so ruling.

It is well settled that as to those risks which are inevitably involved in fire fighting there is no liability on the part of an owner of premises to a fireman injured thereby. Krauth v. Geller, supra; Jackson v. Velveray Corp., 82 N.J.Super. 469, 198 A.2d 115 (App.Div.1964). Thus the risk from smoke, flame and the like, or from the collapse of a floor, ceiling, or wall of a burning building, without more, involves hazards which a fireman must ordinarily anticipate. Jackson v. Velveray Corp., supra, at p. 475, 198 A.2d 115. However, a fireman is not deemed as a matter of law to have voluntarily assumed all hidden unknown extrahazardous dangers which would not be reasonably anticipated or foreseen, Campbell v. Pure Oil Co., 15 N.J.Misc. 723, 727, 194 A. 873 (Sup.Ct.1937), and liability may be imposed upon a landowner for failure to use an available opportunity to warn of a hidden peril, or negligence with respect to conditions creating undue risks of injury, i.e. risks beyond those inevitably involved (inherent) in fire fighting. Krauth v. Geller, supra, 31 N.J. at p. 274, 157 A.2d 129; Jackson v. Velveray Corp., supra, 82 N.J.Super. at pp. 474--476, 198 A.2d 115.

We find it unnecessary to determine whether the facts Sub judice come within the general rule applicable to firemen or the exception thereto referred to above, because plaintiffs occupied a status somewhat different from that of firemen engaged in fighting a fire. Their legal status was not to be determined by their title but by the nature of the work they were required to perform at defendant's premises. We find their status more closely akin to that of a building inspector or the like. As such they were business invitees to whom the obligation of reasonable care was owing. 65 C.J.S. Negligence § 63(109) p. 861 (1966); 38 Am.Jur. § 126, pp. 786--87 (1941). While their presence on the premises did not depend upon the permission or express invitation of the owner, the latter by operating its premises in a manner which called for this service (as a tenement house requiring fire escapes) impliedly invited them there for the purpose of performing their duty of making a safety inspection. They were there for a purpose associated with defendant's business. Restatement (Second), Torts, § 345, comment c at p. 227 (1965). The landowner, by its agent, had knowledge of their presence and was under the duty of exercising reasonable care for their safety. It was liable (with certain exceptions to be referred to) for defects or conditions rendering the premises unsafe of which it knew, or should have known in the exercise of reasonable...