Wietecha v. Peoronard

• Decision Date: 21 May 1986
• Citation: 102 N.J. 591,510 A.2d 19
• Parties: THEODORE M. WIETECHA, LINDA M. WIETECHA, JOSEPH CADAMATRE AND JOAN CADAMATRE, PLAINTIFFS-APPELLANTS, v. GUY PEORONARD, CHR BJELLAND & COMPANY, INC., BORIS PISMICHENKO, ATTERBURY TAXI CORP., FRANCIS J. SULLIVAN, AND EDWARD M. MERSKI, DEFENDANTS-RESPONDENTS, AND MITCHELL S. PERRY, DEFENDANT. GUY PEORONARD AND CHR BJELLAND & COMPANY, INC., THIRD-PARTY PLAINTIFFS-RESPONDENTS, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, THIRD-PARTY DEFENDANT-RESPONDENT.
• Court: New Jersey Supreme Court

102 N.J. 591

510 A.2d 19

THEODORE M. WIETECHA, LINDA M. WIETECHA, JOSEPH CADAMATRE AND JOAN CADAMATRE, PLAINTIFFS-APPELLANTS, v. GUY PEORONARD, CHR BJELLAND & COMPANY, INC., BORIS PISMICHENKO, ATTERBURY TAXI CORP., FRANCIS J. SULLIVAN, AND EDWARD M. MERSKI, DEFENDANTS-RESPONDENTS, AND MITCHELL S. PERRY, DEFENDANT. GUY PEORONARD AND CHR BJELLAND & COMPANY, INC., THIRD-PARTY PLAINTIFFS-RESPONDENTS, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, THIRD-PARTY DEFENDANT-RESPONDENT.

The Supreme Court of New Jersey.

Argued February 19, 1985.

Decided May 21, 1986.

COPYRIGHT MATERIAL OMITTED

Paul J. Hirsh argued the cause for appellants (Whipple, Ross & Hirsh, attorneys).

Jack A. Maloof argued the cause for respondents Guy Peoronard and CHR Bjelland & Company, Inc. (Maloof and Lebowitz, attorneys).

Vincent J. Galasso submitted a letter in lieu of brief on behalf of respondent Boris Pismichenko and Atterbury Taxi Corp.

Hal D. Pugach submitted a letter in lieu of brief on behalf of respondent Francis J. Sullivan (Paul Seligman, attorney).

Gustave A. Peduto submitted a letter in lieu of brief on behalf of respondent Edward M. Merski (Oppenheim & Oppenheim, attorneys).

Stephen F. Kern submitted a letter in lieu of brief on behalf of respondent Port Authority of New York and New Jersey (Hugh H. Welsh, attorney).

PER CURIAM.

This case was originally argued with Mahoney v. Carus Chem. Co., 102 N.J. 564 (1986), also decided today. Its tragic circumstances illustrate the difficulties of applying the "fireman's rule" to complex factual situations. We believe, however, that the lower courts correctly applied the rule to the police officers investigating accidents here, and thus, we affirm the order of summary judgment entered below.

This suit arises out of a multi-car accident that occurred on Route 495 in the Township of North Bergen during the late evening and early morning hours of August 27 and 28, 1981. The roadway is a heavily traveled, divided highway leading from the New Jersey Turnpike to the Lincoln Tunnel entrance. For purposes of this appeal, it is necessary only to set forth the facts that establish the sequence of the accident. Reference to the specifics of each accident, although pertinent to individual liability, is not essential to the subject matter of this appeal. For ease of analysis, we shall refer to the different cars involved by reference to their order of involvement in the accident:¹

1. There was a minor accident between Car 1 and Car 2. Instead of pulling over to the right, the operators stopped in the inside or fast lane of Rt. 495 to exchange information.

2. Car 3 then collided with the rear of Car 1. (After the first accident, Car 2 had pulled to the left, ahead of Car 1.)

3. Patrolman 1 arrived at the scene to investigate the accident and stopped his patrol car behind Car 3 with emergency lights and flashers on. He commenced investigating the accident.

4. Car 4 then struck Patrol Car 1 in the rear.

5. Patrolman 1 went to Car 4 to investigate.

6. Patrolman 2 arrived at the scene to investigate the accident involving Patrol Car 1. He stopped his patrol car behind Car 4, again with flashers and blinkers on. Patrolman 2 stood behind Car 4.

7. Car 5 then collided with the rear of Patrol Car 2, causing it to strike and injure Patrolman 2. The impact drove Patrol Car 2 into Car 4, which in turn struck Patrolman 1.

The core of the "fireman's rule" is that a citizen's ordinary negligence that occasioned the presence of the public safety officer shall not give rise to liability in damages for the injuries sustained by the officer in the course of the response to duty. Mahoney v. Carus Chem. Co., supra, 102 N.J. at 572. The corollary of the rule is that independent and intervening negligent acts that injure the safety officer on duty are not insulated.

Applying these principles to the record before it, the trial court ruled:

1. Patrolman 1 may state a claim against the operators of Cars 4 and 5, whose independent negligence occurred after he arrived at the scene of the accident, but not against the operators of Cars 1, 2 and 3, whose negligence may have occasioned his presence.

2. Patrolman 2 may state a claim against only the operator of Car 5, whose independent negligence occurred after the officer's arrival at the scene of the accident, but not against the first 4 cars, whose negligence may have occasioned his presence.

The Appellate Division affirmed that ruling in an unreported opinion. We granted plaintiffs' petition for certification, 97 N.J. 690 (1984), and then considered this appeal in conjunction with Mahoney v. Carus Chem. Co., supra. We have since been informed that certain of the claims involved have been settled. We therefore state the principles as they applied to the facts before the trial court.

In this case plaintiffs did not allege that their presence at the scene of hazard was occasioned by willful and wanton misconduct on the part of the vehicle operators. Hence, their challenge is to the fundamental premise that underlies the rule in its ordinary application.² In Mahoney, we recognized the continued validity of the rule in its core application to ordinary negligence. 102 N.J. at 572 (quoting Krauth v. Geller, 31 N.J. 270 (1960)).

Plaintiffs contend that the fireman's rule is an artificial exception to the basic concept of tort liability. They point out that another motorist volunteering to help would have suffered no such disability. They point as well to the paradox that two officers, each severely injured in the same accident, may have differing recoveries. We are naturally drawn to seek a result that will eliminate such a seeming disparity. We add only the observation made in Mahoney, supra, 102 N.J. at 578, that even total abandonment of the immunity rule would hardly guarantee evenhanded treatment: safety officers injured through negligence might then recover while those injured by acts where fault is not a factor would be barred from recovery.

Yet, as in Mahoney, supra, we must here also accept the fact that drawing lines is the business of judging. "Uniformity of compensation" is a goal to be desired but not a bar to application of principle. 102 N.J. at 572. We continue to believe that the purposes of the "fireman's rule" are met in resolving the relative duties of...