EDWARD SMITH et al. v. RODNEY BRADLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4754-04T24754-04T2

EDWARD SMITH and AMANDA SMITH,

his wife,

Plaintiffs-Appellants,

v.

RODNEY BRADLEY,

Defendant-Respondent,

and

JORGE R. ORDONEZ-PAREDES,

Defendant.

____________________________________

 

Submitted November 30, 2005 - Decided June 9, 2006

Before Judges Wecker, Fuentes and Graves.

On appeal from the Superior Court of New

Jersey, Law Division, Middlesex County,

L-9512-02.

Craig A. Borgen, attorney for appellants.

Litvak & Trifiolis, attorneys for respondent

(Steven I. Litvak, of counsel and on the

brief).

PER CURIAM

Plaintiff Edward Smith appeals a summary judgment dismissing his negligence complaint against defendant, Jorge R. Ordonez-Paredes. The motion judge, who was bound by this court's decision in Kelly v. Ely, 336 N.J. Super. 354 (App. Div.), certif. denied, 167 N.J. 635 (2001), held that the common law "fireman's rule" was not entirely abrogated by the enactment of N.J.S.A. 2A:62A-21, and that under Kelly, plaintiff's suit was barred. We reverse.

The motion judge summarized plaintiff's factual allegations:

The plaintiff is a police officer who responded to the scene of an accident on December 18, 2001. At the time defendant Robert Bradley was in his automobile having been involved in the accident. The plaintiff approached the vehicle, he smelled gasoline, which may have been attributable to a fuel leak. At that point he attempted to remove the defendant from the vehicle, because he believed that there was a possibility of fire. As he attempted to remove the defendant's seatbelt, the defendant began flailing and hitting plaintiff because he was in shock and pain. In his attempt to control defendant, plaintiff injured his back. [In] plaintiff's deposition . . . he testified: "but before I was trying to pull him from the car, and then he was flailing as I was doing that, and he's like hitting me and stuff like that, but not purposefully. It is just the way, you know, because he was in shock, and he was, you know, in a great deal of pain." . . .

Q "And, again, you thought this was a common thing due to someone who was in shock?

A I've seen it probably over 100 times."

The defendant, Bradley, was subsequently removed from the vehicle when the EMT and fire department came, and the jaws jaws of life were used.

The Supreme Court last directly addressed the scope of the fireman's rule in Rosa v. Dunkin' Donuts, 122 N.J. 66 (1991), holding that the rule bars liability for ordinary negligence involving the property (in that case, allowing a slippery substance to remain on the floor), as well as for injury that results from "negligence that is the reason for the firefighter or police officer being on the premises." Id. at 68-69. Two years later, the Legislature enacted N.J.S.A. 2A:62A-21, which states:

In addition to any other right of action or recovery otherwise available under law, whenever any law enforcement officer, firefighter, or member of a duly incorporated first aid, emergency, ambulance or rescue squad association suffers any injury, disease or death while in the lawful discharge of his official duties and that injury, disease or death is directly or indirectly the result of the neglect, willful omission, or willful or culpable conduct of any person or entity, other than that law enforcement officer, firefighter or first aid, emergency, ambulance or rescue squad member's employer or co-employee, the law enforcement officer, firefighter, or first aid, emergency, ambulance or rescue squad member suffering that injury or disease, or, in the case of death, a representative of that law enforcement officer, firefighter or first aid, emergency, ambulance or rescue squad member's estate, may seek recovery and damages from the person or entity whose neglect, willful omission, or willful or culpable conduct resulted in that injury, disease or death.

[Emphasis added.]

Addressing the statute and its applicability in this case, the motion judge considered the history of the fireman's rule and described this court's holding in Kelly: "that the statute which [overtly] abolished the Fireman's Rule was intended only to afford protection to firefighters injured as a result of negligence unrelated to and independent of the onset of a fire."

The judge also cited Severns v. Concord Chem. Co., 373 N.J. Super. 368, 374-75 (Law Div. 2004), and said that he was "inclined to agree" that the statute

would permit this case to go forward not on the basis that that Mr. Bradley was negligent in hitting the police officer, because I think it's pretty clear that that was a result of shock and not an issue of negligence, but on the issue of his negligent conduct in causing the accident. However, like Judge Fratto [in Severns] I consider myself to be bound by . . . the Appellate Division's decision in Kelly which reaches a contrary view. And it's clear to me that if one applies Kelly to the facts of this case, the motion has to be granted.

In Kelly, the plaintiff was a volunteer fireman who responded to a fire that erupted when a homeowner attempted to light an outdoor gas grill, and flames engulfed the propane tank. Kelly, supra, 336 N.J. Super. at 356. The plaintiff tripped over the curb as he ran toward the fire. Ibid. As we said about the facts in that case, "[t]here was no evidence that plaintiff's fall was in any way occasioned by negligent maintenance of the curb upon which he tripped. Plaintiff did urge, however, that the fire itself was the result of defendant's negligence." Ibid. We recognized the 1994 enactment of N.J.S.A. 2A:62A-21, as well as the common law history of the fireman's rule. We noted the comment of the Supreme Court in Boyer v. Anchor Disposal, 135 N.J. 86, 87-88 (1994), that "'the Legislature has, in effect, abolished the firefighters' rule in New Jersey.'" Kelly, supra, 336 N.J. Super. at 359. At the time, we also noted that "such a statement cannot be interpreted as an authoritative holding that New Jersey had statutorily rejected all aspects of the fireman's rule, for the question confronting us was never presented to the Boyer Court for its consideration." Ibid.

Turning to the statute itself, in the context of the case then before us, we noted that the plaintiff's allegation of negligence against the homeowner arose out of "the outbreak of the fire itself, rather than to a condition of the premises encountered while responding to the fire." Id. at 359-60. We agreed that if the claim arose out of negligent maintenance of the premises, the plaintiff would have a cause of action; but we doubted that the Legislature intended "that a fireman injured while responding to a fire could seek damages for injuries received while in the course of responding to a fire simply because the fire itself was the product of negligence." Ibid. After noting that most fires probably result from some form of negligence, we expressed concern for "the potential consequence of encouraging an owner to delay summoning aid out of fear of incurring liability to a responding firefighter," and considered it unlikely that the Legislature would have intended such a result. Kelly, supra, 336 N.J. Super. at 360-61.

Another panel of this court recently reached a different conclusion about the scope of N.J.S.A. 2A:62A-21. See Ruiz v. Rossi, ___ N.J. Super. ___ (2006) (slip op. at 10). Ruiz holds that the plain language of the statute has left no room for the distinction drawn by Kelly, or for the conclusion that the Legislature did not intend total abrogation of the fireman's rule:

This is not a case in which it can be said that literal application of the statutory language is incompatible with the legislative design. Here, consideration of both the text and context leads to the same result: abrogation of the fireman's rule. Moreover the legislative history supports that result. First, . . . the Statement to the bill expressly said that the only exception intended was for suits against the injured party's employer or co-employee. Second, if the Legislature was reacting to Rosa, as Kelly assumed, 336 N.J. Super. at 361, . . . there is no reason to suppose it was only rejecting the extension of the fireman's rule, rather than agreeing entirely with Justice Handler's dissent [in Rosa], which argued that the rule should be entirely abandoned.

Consequently, we are satisfied that the common law fireman's rule was abrogated entirely by N.J.S.A. 2A:62A-21.

[Ruiz, supra, slip op. at 8-9.]

It appears that the claimed injury in this case arose out of precisely the condition that required the officer's presence safe rescue of an injured motorist who may have negligently caused the accident and not some unrelated negligence. Thus for purposes of interpreting the effect of the 1994 legislation, the facts here are analogous to those in Kelly. Even if Kelly correctly interprets the statute to return the law to its pre-Rosa state, thereby allowing suit for unrelated negligence but not for negligence that caused the car accident and brought plaintiff to the scene, this suit would be barred.

We must also note that five years have passed since Kelly was published. The Legislature is presumed to be aware of case law interpreting its enactments. E.g., In re Tp. of Jackson, 350 N.J. Super. 369, 376 (2002). In light of Kelly's expressed assumption about the Legislature's intent, as well as the Supreme Court's earlier comments in Boyer, it is telling that the Legislature has neither amended nor modified the statute to clarify its scope. Under the circumstances, we can no longer infer that the Legislature intended a narrower rule than that expressed in its plain language, and conclude that the analysis set forth in Ruiz now most accurately describes the scope of N.J.S.A. 2A:62A-21.

Irrespective of our own views of what would constitute a wise policy in this area, unless the Legislature acts further (or the Supreme Court resolves the apparent conflict between Kelly and Ruiz), we are bound by the plain language of the statute.

Reversed and remanded for further proceedings.

 

Plaintiff Amanda Smith's claims are derivative. We therefore refer to plaintiff in the singular in this opinion.

We surmised in Kelly that the Legislature enacted N.J.S.A. 2A:62A-21 in reaction to Rosa, but that the intent was "to restore the law to its pre-Rosa state," that is, to allow a cause of action where the injury resulted from negligence other than the negligent act that required the firefighter's (or the police officer's) response to the scene. Kelly, supra, 336 N.J. Super. at 361.

(continued)

(continued)

8

A-4754-04T2

June 9, 2006