# Mahoney v. Carus Chemical Co., Inc. > Supreme Court of New Jersey · May 21, 1986 · 102 N.J. 564 URL: https://www.frixlaw.com/law-library/cases/9756180 ## Case - **Full name:** Thomas P. Mahoney, and Barbara Mahoney, His Wife, Plaintiffs-Appellants, v. Carus Chemical Company, Inc., and Carus Corporation-Carus Chemical Co. Division; Hungerford & Terry, Inc.; And Inversand Company, Jointly, Severally and in the Alternative, Defendants-Respondents - **Court:** Supreme Court of New Jersey - **Decided:** May 21, 1986 - **Citations:** 102 N.J. 564; 510 A.2d 4; 62 A.L.R. 4th 703; 1986 N.J. LEXIS 947 - **Precedential status:** Published - **Opinion:** Dissent by Handler - **Judges:** Stein, Clifford, Handler - **Cited by:** 52 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Superseded by statute, as recognized in Ruiz v. Mero. - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9756180 ## How later opinions describe it (automated extraction) - holding property owner not *95 immunized for willful and wanton misconduct that causes injury to firefighter - holding property owner not immunized for willful and wanton misconduct that causes injury to firefighter - holding immunity of firefighters’ rule does not extend to party whose willful, wanton conduct created hazard causing injury ## Opinion text HANDLER, J., dissenting in part. The Court now holds “that the immunity of the fireman’s rule does not extend to one whose willful and wanton misconduct *588 creates the hazard that caused injury to the fireman or policeman.” Ante at 579. I endorse the result insofar as it reflects recognition that, at least in the circumstances of this case, the person at fault is not entitled to immunity from liability to a fireman injured in the course of fighting the fire. I cannot, however, accept the majority’s rationale and standard for imposing such liability, namely, that the misconduct that triggers liability must be “willful and wanton.” The Court’s reasoning is curious. It accepts the proposition that the “fireman’s rule” is in reality an “immunity.” It then observes that “to accord 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 logical and justifiable limits of its principle.” Ante at 574. It apparently finds the “limits of its principle” to be tortious conduct that is “negligence.” How much worse negligent misconduct must be to go beyond the limits of the immunity is not clear. The majority simply justifies its curtailment of the immunity in this case by equating willful and wanton misconduct to intentional misconduct. It notes, on this point, that “[t]he difference between an intentional act and willful and wanton misconduct is merely one of degree. For an act to be intentional, the actor must intend the harm or realize with substantial certainty that harm is likely to result. For an act to constitute willful and wanton misconduct, the act must be intended, but not the resulting harm; * * Ante at 31L The significance of this equation can be found in the Court’s opinion in Berko v. Freda, 93 N.J. 81 (1983). There, hearkening to important dicta in Krauth v. Getter, 31 N.J. 270 (1960), the Court recognized that if “intentional misconduct,” is involved in the creation of a fire — that is conduct apart from negligence— this can constitute an “independent cause.” An “independent case” of a fire engenders something other than a “normal” or “ordinary risk,” which is the probability of harm that arises *589 only from negligence. Because it is negligence alone, and the normal or ordinary risk of harm flowing from negligence, that is cloaked with an immunity under the firemen’s rule, the characterization of tortious conduct as more-than-negligence, and as an “independent cause,” by definition generates critical legal consequences. An “independent cause” of the incident that gives rise to injuries to a responding policeman or firefighter performing his duty will not immunize the tortfeasor from liability. Hence, by drawing an analogy between a wanton and willful act and intentional misconduct in this case, the majority, in effect ascribes to a wanton or willful act the quality of an “independent cause.” Ergo, there will be no immunity for injuries attributable to such wanton or willful conduct. I can sympathize with the Court in its struggle to find a reasonable explanation for an obviously sound, fair and just result. This case unfortunately exemplifies the hairsplitting that is inevitably occasioned by retaining the fireman’s rule and then attempting to identify and articulate the reasons that will credibly distinguish cases in which recovery is allowed from those in which it is denied. While we in the law are conditioned to drawing lines, the majority by its newly-adopted rationale commits courts and juries in these cases to a fate of continuously trying to distinguish “normal” risks from “abnormal” risks from “independent causes.” Because of the impossibility of sensibly defining and confining so-called normal risks .that police officers and firefighters knowingly and voluntarily assume, I am confirmed in the belief that the willful and wanton misconduct exception, like the “independent cause” exception, is simply a convenient rationalization seized upon to overcome and ameliorate the arbitrary and regressive effects that inhere ihAhe fireman’s rule. See, Berko v. Freda, supra, 93 N.J. at 91, 97 (dissenting opinion). The conundrum that is the “fireman’s rule” remains inexplicable and insoluble. I continue to voice my disagreement with the majority’s perception of the public policy that is marshalled to support this *590 odd immunity. Berko v. Freda, supra, 93 N.J. at 91 (dissenting opinion). The Court eschews any curtailment of the immunity for the reasons that immunities are disfavored and, in the context of a case such as this, the prevailing common-law rule recognizes liability against a wrongdoer in favor of rescuers responding to an emergency. Id. at 100 ; Harrison v. Middlesex Water Co., 158 N.J.Super. 368, 376 (App.Div.1978), rev’d on other grounds, 80 N.J. 391 (1979); Demetro v. Penna R.R., 90 N.J.Super. 308, 310 (App.Div.1966). The conventional defenses advanced in support of the fireman’s rule are feeble. Thus, salary, disability or compensation payments to police and firefighters, as well as other public employees, should not obviate the duty of reasonable care that is owed to them by third-party citizens; and, assuredly such payment is not the equivalent of reasonable compensation for tortiously-inflicted injury. Berko, 93 N.J. at 94-95 . I noted further in Berko that the anomaly of the current fireman’s rule is its self-destructive element; the refinements or exceptions spawned by the rule will eventually obscure the rule itself. Ibid., 93 N.J. at 97 n. 3. See, e.g., Lipson v. Superior Court of Orange Cty., 31 Cal. 3d 362 , 644 P.2d 822 , 182 Cal.Rtpr. 629 (Sup.Ct.1982). The rule draws artificial distinctions between police officers and firefighters who are denied recovery under the fireman’s rule and other public employees who have the right to maintain traditional tort actions against third parties for virtually all negligently inflicted injuries arising in the performance of their employment. And, as noted, this case attaches extraordinary legal consequences to the refinement that separates conduct that is negligent (or presumably grossly negligent) and that which is wanton or willful. The exception fashioned in this case exhibits the voracious tendency of the rule to devour itself and is a further argument for sweeping away its truncated remains. This point obviously is not lost upon Justice Clifford, who extrudes the peculiarities suggested by the Court’s newly-honed fireman’s rule. Ante at 585. The majority, he points *591 out, is creating a system under which two police officers or two firefighters who sustain identical injuries may receive uneven treatment and compensation due to the difference in the conduct that caused the hazard to which they were exposed. I agree with Justice Clifford that this distinction is illogical. Further, from my point of view, the distinction impedes the effectuation of a fundamental tenet of our jurisprudence that should apply to firefighters and policemen: the right of redress for those injured as a result of the wrongdoing of others. For these reasons, I dissent. For reversal and remandment — Chief Justice WILENTZ and Justices POLLOCK, O’HERN, GARIBALDI and STEIN— 5. Opposed — Justices CLIFFORD and HANDLER — 2. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9756180. Public record. Not legal advice.