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Legal Q & A

 

The Fireman's Rule
and Disability Benefits

Deborah M. Kole
League Staff Attorney


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Deborah M. Kole, League Staff Attorney

Q I own a bar in my community, and several months ago a fight broke out that could not be handled by the staff, and the police were called. That was bad enough, but I was just served with notice that one of the police officers who responded and was severely injured in the fight is suing me for damages, claiming that the incident occurred because of my negligence in not providing adequate security. A friend of mine told me that I had no reason to worry, because the “fireman’s rule” does not allow such suits. Is he correct, and what is this rule exactly?

A Unfortunately for you, a recent court case has just affirmed that this rule no longer applies in New Jersey. This common law rule bars a firefighter from recovering damages against a property owner for injuries received while battling a fire caused by the property owner’s negligence. The rule was cited to bar recovery in the case of Krauth v. Geller, 31 NJ 270 (1960), and was extended to situations involving police officers in the same situation in Berko v. Freda, 93 NJ 81 (1983).

The coverage of the rule became even more extensive in 1991, when the New Jersey Supreme Court considered the case of a police officer who was injured while carrying an individual from the scene of an incident because of the premise owner’s negligence in maintaining the floor. The Court found that the officer could not sue because of this common law doctrine in the case of Rosa v. Dunkin’ Donuts, 122 NJ 66. However, Justice Alan Handler dissented from the majority holding, criticized the fireman’s rule, and expressed a hope that it would be abolished.

A statute dealing with this issue was passed in 1993, N.J.S.A. 2A:62A-21. This statute says that police officers, firefighters, and emergency services personnel may sue anyone except their employers or co-employees if they suffer injury “…while in the lawful discharge…of official duties…” if the injury is “…directly or indirectly the result of the neglect, willful omission, or willful or culpable conduct…” of the person or entity sued.

While a 2001 case, Kelly v. Ely, 336 NJ Super 354, held that the statute only abolished the extension of the rule to situations beyond fires caused by negligence, in the New Jersey Supreme Court case of Ruiz v. Mero, A-28/29-06, the Court found that the statute had abolished the fireman’s rule entirely in New Jersey. Therefore, this rule does not protect you from suit under the facts presented.

However, the officer suing you will still have to prove that you were, in fact, negligent under the facts to prevail in his action against you.

 

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Q Our municipality had paid out several months of a workers compensation settlement to a permanently disabled worker when he died from causes unrelated to the work-related injury. He had been receiving Social Security Disability Benefits, which were offset under the Settlement Order against the compensation rate, thereby reducing the amount the municipality had to pay. Since the worker was under sixty-two when he died, his Social Security benefits ended at his death. Can we still pay the reduced amount to the surviving dependant spouse, even though she will not be receiving the federal funds?

A According to the recent Appellate Division case of Wood v. Jackson Township A-3317-04T3 (2006), the municipality must now pay the full amount. In that case, the defendant cited the language of NJSA 34-12(e), which provides for the continuation of workers compensation payments for permanent injury to the worker’s dependants after the death of the worker from a cause other than the compensable injury. The Township said that the term “remaining payments” as used in that section of the statute meant that the municipality’s payments would remain the same after the worker’s death despite the loss of the Social Security Disability Benefits.

The Court disagreed with defendant’s position, pointing out that the federal and state law on the subject created a pattern of offsetting payments to ensure that the worker and his or her dependants received the full amount of the compensation amounts due. Federal law provides that Social Security Disability Benefits be reduced by the amount of workers’ compensation payments unless state law provides otherwise. NJSA 34:15-95.5 states that workers’ compensation benefits will be offset by federal disability payments. Since the dependant spouse was no longer receiving the Social Security payments, the Court found that the defendant employer had to increase its payments to make up the shortfall that would otherwise exist in the amount received by the spouse.

This column is for informational purposes only, and is not intended as legal advice.

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