Rosa v. Dunkin' Donuts of Passaic

The opinion of the Court was delivered by

GARIBALDI, J.

In Krauth v. Geller, 31 N.J. 270, 273, 157 A.2d 129 (1960), we adopted the fireman’s rule that “the owner or occupier is not liable to a paid fireman for negligence with respect to the creation of a fire.” Id. at 273, 157 A.2d 129. In Berko v. Freda, 93 N.J. 81, 459 A.2d 663 (1983), we extended the rule to police officers.

This appeal concerns the scope of the immunity granted by the fireman’s rule. No act of negligence brought plaintiff, a police officer, to the scene of his injury. In response to an emergency medical assistance call from the defendants’ store, he slipped on a powdery white substance scattered on the kitchen floor of the store. He claims that the fireman’s rule bars a suit against the property owner or occupier only “for an act of ordinary negligence that creates the occasion for the presence of a firefighter or a police officer at the place where he is injured.” Berko v. Freda, supra, 93 N.J. at 84, 459 A.2d 663. Defendants claim that the fireman’s rule also bars a suit against a property owner or occupier for an act of ordinary negligence that arises out of the normal course of a police officer’s duty. The issue, therefore, is: does the fireman’s rule *69bar liability only where the injuries arise from an ordinary act of negligence that is the reason for the firefighter or police officer being on the premises, or does it likewise bar liability where the injuries arise from an ordinary act of negligence that firefighters and police in the normal course of their duties should expect to meet?

I

The facts are essentially undisputed. While on duty, plaintiff, Jose Rosa, a police officer in Passaic, responded to a call for emergency medical assistance for a sick employee at defendants’ Dunkin’ Donuts store in Passaic. On arriving at the store Officer Rosa found an unconscious employee. While he was carrying the unconscious employee on a stretcher to the police ambulance, Officer Rosa’s left foot slipped on a white powdery substance (presumably confectioner’s sugar or flour) on the kitchen floor of the donut shop. Officer Rosa recalls no conscious recognition of the powder’s presence before his fall; however, there is no indication or insinuation that it was not present when he arrived at the scene.

Officer Rosa received unspecified injuries as a result of slipping while transporting the sick employee to the ambulance. His injuries form the basis of a workers’ compensation claim. His injuries also form the basis of this lawsuit.

On July 21, 1984, Officer Rosa filed a lawsuit based on these unspecified injuries against defendants’ Dunkin’ Donuts of Passaic and Carmel Aditya, the owner of the franchise.1 He alleged that the defendants had caused him to slip and fall by negligently allowing the white powdery substance to remain scattered on the kitchen floor, thereby creating a slippery floor. He contended that the white powdery substance on the floor *70created a foreseeable risk of avoidable future harm. His contention forms a classic, ordinary negligence claim.

On November 3, 1987, defendants moved for summary judgment, claiming that the fireman’s rule barred plaintiff’s action. Although many statements of that rule apparently limit it to barring claims based upon the very negligence that occasioned the rescuer’s presence, see Berko v. Freda, supra, 93 N.J. at 85, 459 A.2d 663; Krauth v. Geller, supra, 31 N.J. at 273, 157 A.2d 129; Celia v. Interstate Properties, 232 N.J.Super. 232, 240, 556 A.2d 1262 (App.Div.1989); Chipps v. Newmarket Condominium Ass’n, 228 N.J.Super. 144, 147, 549 A.2d 66 (Law Div.1988), defendants cite recent cases that held it applicable to situations in which the officer’s presence was occasioned by some factor other than the negligence that caused his or her injury. Maryland Casualty Co. v. Heiot, 224 N.J.Super. 441, 446, 540 A.2d 920 (Law Div.1988); Williams v. Levitt, 213 N.J.Super. 604, 607, 517 A.2d 1242 (Law Div.1986).

The trial court granted defendants’ motion. Officer Rosa appealed. The Appellate Division unanimously rejected Officer Rosa’s contention that his claim fell into a standard exception to the fireman’s rule.

[The plaintiffs] urge that the injury sustained here falls squarely within the exception carved out in Berko for negligence which did not create the occasion for the public employee’s presence. Berko, supra, 93 N.J. at 85 [459 A.2d 663]. In other words they view the slip and fall as entirely distinct from the reason for Rosa’s presence at defendant’s premises. We disagree. In our view Rosa’s fall was a risk inherent in the situation to which he responded (a rescue in the kitchen of a doughnut shop) and recovery was therein precluded under the “Fireman Rule.”

We granted certification, 117 N.J. 626, 569 A.2d 1330 (1989), and now affirm.

II

The fireman’s rule is followed throughout the country. Berko v. Freda, supra, 93 N.J. at 83, 459 A.2d 663. Since this Court adopted the rule in 1960, it has been “a fixture in our jurisprudence.” Ibid.

*71In adopting the rule, we eschewed the technical formalistic classifications used to define varying duties of care landowners owe to trespassers, licensees, or invitees. We recognized that the officer’s “status being sui generis, justice is not aided by appending an inappropriate label and then visiting consequences which flow from a status artificially imputed.” Krauth v. Geller, supra, 31 N.J. at 273, 157 A.2d 129.

In Krauth, Chief Justice Weintraub set forth the policy underlying the fireman’s rule:

The rationale of the prevailing rule is sometimes 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. 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 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 serves, both in pay which reflects the hazard and in workmen’s compensation benefits for the consequences of the inherent risks of the calling.
[31 N.J. at 273-74, 157 A.2d 129 (citations omitted).]

We continue to recognize the fundamental fairness of the Krauth public-policy rationale that supports the fireman’s rule. In Berko v. Freda, supra, we held that the rule barred a police officer’s suit against a car owner who negligently left keys in his car for the injuries inflicted on the officer by the youth who stole the car. In Berko, we stated:

We perceive more than mere dollars-and-cents considerations underpinning the fundamental justice of the “fireman’s rule.” There is at work here a public policy component that strongly opposes the notion that an act of ordinary negligence should expose the actor to liability for injuries sustained in the course of a public servant’s performance of necessary, albeit hazardous, public duties. In the absence of a legislative expression of contrary policy, a citizen should not have to run the risk of a civil judgment against him for negligent acts that occasion the presence of a firefighter at the scene of a carelessly-set *72fire or of a police officer at a disturbance or unlawful incident resulting from negligent conduct. [Id. at 88-89, 459 A.2d 663].

In a more recent case, Mahoney v. Carus Chemical Co., 102 N.J. 564, 510 A.2d 4 (1986), we held that “the immunity of the fireman’s rule does not extend to one whose willful and wanton misconduct created the hazard that caused the injury to the fireman or policeman.” Id. at 579, 510 A.2d 4. Although we narrowed the scope of the rule, we reaffirmed our belief in the underlying policy considerations of the fireman’s rule:

Furthermore, considerations of fairness support the grant of immunity from suit by firemen or policemen to a citizen whose conduct is merely negligent. Hazards negligently created are staples of the duties firemen and policemen are expected to perform. Although the citizen immunized is not free from fault, the quality of fault is not so severe that the grant of immunity from liability for injuries sustained by firemen and policemen in the ordinary course of their duties offends our common sense of justice. [Id. at 573-74, 510 A.2d 4],

The policies underlying the fireman’s rule are simple, straightforward ones. The accidents and emergencies occasioning the presence of firefighters and police officers are a sad fact of life not soon to be eliminated. Berko, supra, 93 N.J. at 86, 459 A.2d 663. They are, however, also the very reason for the existence of the public forces of the “finest” and the “bravest.” “Both are paid to confront crises and allay dangers created by an uncircumspect citizenry____ Citizens summon police and firefighters to confront danger. Governmental entities maintain police and fire departments in anticipation of those inevitable physical perils that burden the human condition----” Id. at 86-87, 459 A.2d 663. A taxpayer who pays the fire and police departments to confront the risks should not have to pay again. Id. at 87-88, 459 A.2d 663.

More significant, however, is the realization that the very nature of the profession that the officers have chosen embodies risks that the emergencies to which they will respond will neither be conveniently timed nor situated for rescuer, victim, or property-owner — they have assumed (and been trained to handle) those risks. Berko v. Freda, supra, 93 N.J. at 88, 459 A.2d 663; Krauth v. Geller, supra, 31 N.J. at 274, 157 A.2d *73129. Those professionals, whether firefighters or police officers, are charged with responding to a situation and effecting a rescue. They must measure the “situation” in the totality of the circumstances present at the scene.

[A] police officer does not have time to draw up a contract with the owner of a stolen car outlining the risks of pursuing the thieves, but the very nature of police work requires officers to recognize the dangers inherent in such emergencies. N.J.S.A. 52:17B-68 mandates police training courses for this very reason. Indeed, one who does not know the risks inherent in a high speed chase should not engage in high speed chasing. [Berko v. Freda, supra, 93 N.J. at 88, 459 A.2d 663].

It contravenes good sense and good policy to hold property owners liable to prepare for such unexpected arrivals.

Ordinarily a firefighter or police officer is summoned in circumstances of emergency where the landowner has not had time to prepare the premises for his arrival____ A firefighter responding to such an emergency call has no reasonable expectation that the property has been made safe for his arrival. One engaged in this occupation does not determine whether to respond based on weather conditions. This is because a firefighter is likely to enter at unforeseeable times under emergent circumstances. In other words weather is one of the “inherent risks of (this) calling.” Cf. Krauth, supra, 31 N.J at 274 [157 A.2d 129].
[Maryland Casualty Co. v. Heiot, supra, 224 N.J.Super. at 444-45, 540 A.2d 920.]

See also Williams v. Levitt, supra, 213 N.J.Super. at 604, 517 A.2d 1242 (stating that were it otherwise, any citizen seeking aid of the police may be expected to ensure that no condition even remotely giving rise to liability exists before he calls upon them to render assistance). The noted commentator Dean Prosser stated:

the most legitimate basis for [the firemen’s rule] lies in the fact that firemen and policemen are likely to enter at unforeseeable times, upon unusual parts of the premises, and under circumstances of emergency where care in looking after the premises and in preparation for the visit, cannot reasonably be looked for.
[W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on the Law of Torts, § 61 at 431 (5th ed. 1984)].

We agree. Firefighters and police officers must be held to assume the risks that are to be expected in encountering the hazards and risks of their job. They are risks inherent and incidental to the performance of the duties of a firefighter and *74police officer. Such risks properly include an ordinary act of negligence that an officer may encounter at the scene of the incident. To hold otherwise creates artificial distinctions between the negligence that occasioned one’s presence and the negligence defining the scene at which one arrives (and with which one has been commissioned and empowered to deal). Such distinctions serve neither the rationale underlying the public-policy considerations for the fireman’s rule nor the assumption of risk.

The policy rationale underlying the fireman’s rule fully supports its application in this case. The conditions and responsibilities that Officer Rosa faced when he entered Dunkin’ Donuts were those of a type inherent in the performance of his duties. Officer Rosa entered the kitchen to render medical assistance to an unconscious female employee. He is paid, trained, and expected to confront such emergencies and to remove those in peril.

His duty compelled him to traverse the area sprinkled with powder. He could not have fulfilled his duty without passing over the area in question. Hill v. Adler’s Food Town, 180 Mich.App. 495, 497-500, 447 N.W.2d 797, 799 (1989) (barring suit because officer’s duty to respond made using defective staircase unavoidable). In carrying out that duty, the plaintiff must take the premises as he found them. Indeed, the unconscious woman could herself have knocked over the powder while falling. The intervening medical emergency could have disrupted normal cleaning procedures. Such conditions define one’s role as a paid protector of the public. “Poor housekeeping is a hazard inherent or inevitable in firefighting,” Jackson v. Velveray Corp., 82 N.J.Super. 469, 480, 198 A.2d 115 (App. Div.1964), or police work, whether it compounds the difficulty of extinguishing the flames or extricating the fallen.

The application of the fireman’s rule in this case does not occasion a wide extension of its scope. We have consistently applied the immunity granted under the fireman’s rule to those *75guilty of previous ordinary negligence. “[C]onsiderations of fairness support the grant of immunity from suit by a fireman or policeman to a citizen whose conduct is merely negligent. Hazards negligently created are staples of the duties firemen and policemen are expected to perform.” Mahoney v. Carus Chem. Co., supra, 102 N.J. at 573, 510 A.2d 4. The public policy that opposes exposing citizens to liability for mere acts of ordinary negligence applies equally well whether it be a police officer or firefighters performing his or her “necessary, albeit hazardous, public duties.” Berko, supra, 93 N.J. at 91, 459 A.2d 663.

The fireman’s rule still allows recovery in situations of willful or intentional misconduct traditionally outside of the cloak of the rule’s immunity. As we stated clearly in Mahoney v. Carus Chemical Co., supra, 102 N.J. at 576, 510 A.2d 4, willful and wanton misconduct is an appropriate exception to most general rules of immunity. In the case of the fireman’s rule it is perhaps most appropriate because according “immunity to one who deliberately and maliciously creates the hazard that injures the firemen or policemen stretches the policy underlying the fireman’s rule beyond the logic and justifiable limits of its principle.” Id. at 574, 510 A.2d 4. By contrast,, today’s decision is well within the limits of that principle.

Likewise, we continue to adhere to our statement in Berko v. Freda that the rule does not apply when a defendant’s clearly “subsequent act of negligence” injures the police officer or firefighter. 93 N.J. at 91, 459 A.2d 663. As we noted there, defining those acts presents a “subtler problem” than allowing suit where one is guilty of wanton, willful or intentional behavior. Ibid. It is a problem we have confronted in the past, see Wietecha v. Peoronard, 102 N.J. 591, 596, 510 A.2d 19 (1986), but which we need not confront today. We need only recognize that there may be cases in which acts of negligence that occur subsequent to an officer’s arrival on the scene pose hazards so closely connected to the purpose of the officer’s presence that *76they may fairly be described as incidental to and inherent in the performance of the officer’s duties. We understand that the closeness of the connection may prevent one from sensibly or fairly describing these as “independent and intervening negligent acts.” Id. at 595, 510 A.2d 19 (emphasis added). However, we need not speculate further to resolve this case in the context in which such acts of negligence may arise, but acknowledge the possibility that there may be subsequent acts of negligence entitled to the immunity afforded by the fireman’s rule.

Of course, the fireman’s rule only applies to bar suit by a police officer or firefighter injured in the performance of his or her duty. It does not apply when the officer is acting as a normal citizen. For example, had Officer Rosa entered the premises to purchase coffee or a doughnut, he would be a customer, albeit a uniformed one. If he were injured while on the premises making such a purchase, the fireman’s rule would not prohibit his recovery against the property owner. Nothing in the public-policy or assumption-of-risk arguments underlying this rule imply that officers should not receive the protections afforded civilian patrons when acting as customers themselves.

In conclusion, we find that the policies and goals that bar a firefighter and police officer from recovering for injuries sustained from an ordinary act of negligence that occasioned the officer’s presence on the premises are equally applicable to bar liability for injuries that arise from an act of ordinary negligence posing a hazard that is incidental to and inherent in the performance of the officer’s duties. Such a rule would bar recovery to an injured firefighter who slipped on icy steps while responding to an emergency medical call from the owner of the premises (Maryland Casualty Co. v. Heiot, supra, 224 N.J.Super. at 441, 540 A.2d 920); to an injured police officer who slipped into a hole in the owner’s yard while investigating a burglar alarm at the home (Williams v. Levitt, supra, 213 *77N.J.Super. at 604, 517 A.2d 1242); to an injured police officer who, while checking the rear doors of a building, fell down a stairway because the handrail was too wide (contra Chipps v. Newmarket, supra, 228 N.J.Super. at 144, 549 A.2d 66); to a police officer who was injured when he fell on ice in the early morning hours while investigating the presence of a suspicious car in the shopping center’s parking lot (contra Cella v. Interstate Properties, supra, 232 N.J.Super. at 232, 556 A.2d 1262). All those injuries arose out of the officer’s normal performance of his duties. The relationship among the injuries, their causes, and the officers’ duties is neither attenuated nor artificial. The officers in those cases came to the scene to inspect the area or to carry out the injured. Their injuries arose out of their inspections or out of passing over the very area providing access to and exit for the injured person.

Similarly, when a police officer responds to a medical emergency, he or she must anticipate attending to the victim, removing the victim from the present location, and facilitating the victim’s transportation to the hospital. Lifting a stretcher under less-than-ideal conditions is not unfathomable. Indeed, it is so likely as to be considered an inherent part of the performance of the officer’s rescue duty.

Accordingly, the judgment of the Appellate Division is affirmed.

HANDLER, J., filed a separate dissenting opinion.

Rosa's wife is also a plaintiff in this action but her actions are strictly derivative. "Plaintiff’ as used herein refers only to Officer Rosa.