Mahoney v. Carus Chemical Co., Inc.

CLIFFORD, J.,

dissenting in part.

Today’s exercise is one not so much of law as it is of policy. Indeed, the “fireman’s rule,” only recently acknowledged to. be “a fixture in our jurisprudence,” Berko v. Freda, 93 N.J. 81, 83 (1983), is grounded almost exclusively in policy considerations, decked out a bit in the garb of common-law principles of duty and assumption of risk. At heart the rule rests on the notion that

[t]here is [no duty] owed the fireman to exercise care so as not to require the special services for which he is trained and paid. * * * [I]n 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 *584 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. Krauth v. Geller, 31 N.J. 270, 274 (1960), quoted in Berko v. Freda, supra, 93 N.J. at 85 .]

What has evolved from Krauth in the twenty-six years that have passed since it was decided is a sensible, straightforward, bright-line rule, distinguished by its ease of application: if a fireman is hurt as a result of his exposure to the risks of injury that are inevitably involved in firefighting, then his recourse lies with the public fisc, not with the tortfeasor. See Berko v. Freda, supra, 93 N.J. 81 , and cases cited therein.

But now the Court concludes that considerations of “fairness, deterrence,) and sound public policy,” ante at 577, require that an exception be carved out of the “fireman’s rule” for those situations in which a defendant is guilty of willful and wanton misconduct. That determination is, at bottom, a judgment call.

The Court’s opinion could hardly be improved on as a reasoned statement in support of the exception, but I come down on the other side of the issue. As Chief Justice Weintraub took pains to point out in Krauth ,

[w]antonness is not too precise a concept. It is something less than intentional hurt, and so viewed is an advanced degree of negligent misconduct. In the context of the policy considerations which underlie the rule of non-liability for negligence with respect to the origination of a fire, it is debatable whether degrees of culpability are at all pertinent. [ 31 N.J. at 277 .]

Notice first that the Krauth Court by no means sought to obliterate the distinction between willful, wanton conduct on the one hand and ordinary negligence on the other. As the majority points out, ante at 574, “[t]his Court has consistently recognized the importance of [that] distinction * * In no case in which the distinction has been recognized and applied, however, have we even hinted that the difference between ordinary negligence and willful-wanton misconduct should afford a basis for favoring a victim whose job it is to confront the very risks that give rise to his employment in the first place, irrespective of their cause. Those different degrees of negligence are irrele *585 vant to the “fireman’s rule.” “It is not important in the application of the ‘fireman’s rule’ to determine what caused the particular danger which brought about the injury. Of critical importance is whether the particular danger is one that the fireman would anticipate in the performance of his duties.” Court v. Grzelinski, 72 Ill.2d 141, 154 , 19 Ill.Dec. 617, 623 , 379 N.E.2d 281, 287 (1978) (Ryan, J., dissenting).

Hence, in adverting to the distinction between ordinary negligence and conduct that may be characterized as willful and wanton, Krauth picked its target with precision: the pertinency of that distinction “[i]n the context of the policy considerations which underlie the rule of non-liability for negligence with respect to the origination of a fire.” 31 N.J. at 277 .

Those policy considerations, stated at the beginning of this opinion, were reaffirmed in Berko v. Freda, supra, 93 N.J. 81 ,

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 fire or of a police officer at a disturbance or unlawful incident resulting from negligent conduct. {Id. at 88-89 (footnote omitted).]

The policy considerations are couched in terms of ordinary negligence simply because that was the quality of conduct at issue in Krauth and Berko . 1 I would find those same considerations controlling in the “willful-wanton” situation, as in this case.

As I understand it, the Court would permit plaintiff’s case to go forward against Carus on the willful-wanton theory, but would not allow the same plaintiff to proceed against defendant Inversand, the occupier of the premises, on a claim of simple *586 negligence in the form of, say, sloppy housekeeping (failure to isolate combustible materials), or a careless employee’s failure to extinguish a cigarette, or an overworked plant electrician’s primitive wiring job. Same fireman, same hazard, same accident, same injury, same causes acting together to produce the very same fire (Carus’s willfully and wantonly negligent use and shipment of hazardous containers plus Inversand’s negligence in any one of a limitless variety of forms). Result: potential liability of Carus, no cognizable claim against Inversand. 2 Or, hypothetically, two firemen fighting separate fires in different locations. Same hazard, same kind of accident, same injury. One sues in willful and wanton misconduct, the other sues in simple negligence: the first recovers, the second is barred by what has now become the tattered remains of the “fireman’s rule.” I do not view as sound a policy that can — and will — produce such quaint results as between identically situated plaintiffs. That circumstance should give one pause.

If the “fireman’s rule,” now a quarter of a century old, be viewed as harsh, if the results of its application create queasiness, the Court is free to scrap it, as urged by Justice Handler (as one may have gathered, I would keep the rule), or the legislature is free to change it. To date that body has apparently been content with the immunity afforded by the rule.

Which brings me to the majority’s point ante at 578 that “policemen and firemen would undoubtedly prefer a rule that produces uneven results to one that unfairly and unnecessarily immunizes the intentional 3 or reckless perpetrator of a haz *587 ard.” Maybe. But the fact remains that Krautk, with its clear implication that proof of a higher degree of recklessness would not serve to avoid the rule, has been on the books since 1960, and Ferraro v. Dematrakis, 167 N.J.Super. 429 (App.Div.) certif. den., 81 N.J. 290 (1979), with its declaration that “wanton conduct with respect to the cause of a fire would not require waiver of the general [fireman’s] rule,” id. at 433 , has been around for more than six years. During all or part of that time the amicus curiae, New Jersey State Firemen’s Association, has lobbied in the legislative hallways for the interests of firefighters, as has the New Jersey State Police Benevolent Association, amicus curiae in the companion case decided today, Entwistle v. Draves, 102 N.J. 559 (1986), for the interests of the State Police. It is almost a matter susceptible of judicial notice that those associations are among the most active, most vocal, and most effective in their representational endeavors. Despite this, their attorneys at oral argument before us could point to not one effort on the part of those associations — or for that matter on the part of any other firemen’s or police organization — to persuade the legislature to abolish or limit the “fireman’s rule,” so firmly and so long established in our case law. One must assume that those associations — and if not they, surely the legislature — are satisfied with the rule as it has existed up until today.

I join in parts IV and V of the Court’s opinion. I dissent from so much of the balance of the opinion as would deprive defendant Carus of the benefit of the “fireman’s rule.”

But it is worth noting that Krauth specifically rejected the precise invitation that the Court today accepts: “We are asked to hold that 'wanton’ conduct resulting in a fire and consequent alarm [sic: harm?] will suffice for the imposition of liability." 31 N.J. at 277 (emphasis added).

As stated at the conclusion of this opinion, I agree that there may be lurking somewhere in plaintiffs allegations against Inversand a question for resolution by the fact-finder in respect of one of the exceptions to the "fireman's rule,” dealing with negligent conduct independent of that which caused the fire.

Of course, we do not here deal with the arsonist or with one who intentionally and maliciously causes injury to the fireman. In that situation I would think the policy factors would shift and the rule of non-liability would evaporate. Policy-making is, after all, the art of drawing lines. No civilized system *587 of justice would tolerate any line-drawing that would confer immunity on one who intentionally harmed a fireman. Wantonness is "something less than intentional hurt * * *." Krauth, supra, 31 N.J. at 277 . Nowhere in his twelve-page Complaint does plaintiff charge Carus with intentional wrongdoing.