Williams v. Levitt

• Decision Date: 03 September 1986
• Citation: 213 N.J.Super. 604,517 A.2d 1242
• Parties: Ronald WILLIAMS and Hollis Williams, his wife, Plaintiffs, v. Steven LEVITT, Frances Levitt and John Doe (name being fictitious and unknown), Defendants.
• Court: New Jersey Superior Court

Page 604

213 N.J.Super. 604

517 A.2d 1242

Ronald WILLIAMS and Hollis Williams, his wife, Plaintiffs, v. Steven LEVITT, Frances Levitt and John Doe (name being fictitious and unknown), Defendants.

Superior Court of New Jersey, Law Division Monmouth County.

Decided Sept. 3, 1986.

Michael D. Schottland, West Long Branch, for plaintiffs (Chamlin, Schottland, Rosen, Cavanagh & Uliano, attorneys; Charles J. Uliano on the brief).

James J. Barry, Toms River, for defendants (Mauro & Barry, attorneys).

SELIKOFF, J.S.C.

At approximately 8:15 a.m., October 5, 1983, plaintiff, Ronald Williams, a police officer, was dispatched along with a partner to investigate the activation of a burglar alarm at premises owned by the defendants, Steven and Frances Levitt, at 210 Belmont Ave., Ocean Township, New Jersey.

While canvassing the scene to determine the cause of the alarm, plaintiff Williams was injured when his right foot stepped in a hole in defendant's yard, measuring about 12 by 8 inches. It is alleged by plaintiff that the hole was neither visible nor apparent due to the grass surrounding it having been trimmed to a height even with the rest of the lawn. Plaintiff Williams filed suit upon the theory that the defendants, being under a duty to maintain the premises, negligently failed either to properly maintain them or provide an adequate warning. In answering the complaint, defendants admitted ownership of the premises, but denied any negligence on their part.

Defendants now move for summary judgment, arguing that under the so-called "Fireman's Rule" they are immune from liability for damages caused to a police officer injured during the discharge of his duties. In opposition, the plaintiffs contend that the Rule immunizes only negligent acts which cause the officer's presence at the scene and injure him, and since the cause of plaintiff's injury was independent of the reason for his presence, the "Fireman's Rule" is not applicable.

The "Fireman's Rule" cases clearly show it was meant to immunize an act of ordinary negligence that injures a public safety officer when that same act is the cause of the officer's presence at the place where he is injured. McCarthy v. Ehrens, 212 N.J.Super. 249, 254, 514 A.2d 864, 867 (Law Div.1986).

The act causing the officer's presence can aptly be called "underlying negligence." What is not clear from the reported cases is the applicability of the Rule to injuries sustained independent of any underlying negligence; the situation which now confronts the Court.

The Court recognizes there is precedential language that could be construed as including the facts of this case within the ambit of the Rule. See Krauth v. Geller, 31 N.J. 270, 274-275, 157 A.2d 129 (1960) (recognizing authority for imposing liability for negligently-created conditions posing undue risk); Trainor v. Santana, 86 N.J. 403, 407, 432 A.2d 23 (1981) (additional and subsequent acts of negligence directly causing injury after officer's arrival and with defendant's awareness preclude assertion of Rule as a defense); Berko v. Freda, 93 N.J. 81, 85, 459 A.2d 663 (1983) ("...