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01
Jul

What are the Rights of Firefighters and Police Negligently Injured?

The question has arisen whether a firefighter of a duly incorporated emergency or rescue squad association who suffers any injury, disease or death while in the performing his duty can seek recovery and damages if the hazard were negligently created. The Short answer is those classes of indivuals, such as a firefighter, 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

Historically, the common law barred the type of claim. However, the New Jersey Legislature recognized the injustice of such a system and enacted legislation meant to extend greater protection to our fire, police and rescue personnel. Under N.J.S.A. 2A:62A-21, a firefight is not barred from bringing an action for damages against a person or entity whose actions caused injury. Foster v. Newark Housing Authority, 389 N.J.Super. 60 (L. Div. 2006). The Fireman’s Act as codified in N.J.S.A. 2A:62A-21 provides that:

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.

It is now well settled that in N.J.S.A. 2A:62A-21 abrogates prior common law immunity, known as the “fireman’s rule,” which provided that a citizen could not be sued by a firefighter for negligent acts that bring them to a scene and cause personal injury. Kelly v. Ely, 336 N.J.Super. 354 (App.Div. 2001).

The Court in Boyer v. Anchor Disposal and Sunshiner Maintenance, 135 N.J. 86 (1994) observed in dictum that “[b]ecause the Legislature has, in effect, abolished the firefighters’ rule in New Jersey, this case is probably the last in which this Court will consider an application of the rule.” Despite the clear language of N.J.S.A. 2A:62A-21, lower courts continued to go back and forth on the issue. However, Kelly v. Ely, decided in 2001, was the last court in NJ to hold that a citizen or entity could not be sued by a firefighter. Newark Housing Authority, 389 N.J.Super. at 67. The Third Circuit stepped into the debate, and observed that the language of N.J.S.A. 2A:62A-21 was clear and thus predicted that the New Jersey Supreme Court would not follow the Kelly v. Ely decision. Roma v. United States, 344 F.3d 352 (3d Cir.2003). Accordingly, the Third Circuit held that a firefighter was not bared from bringing suit against a citizen. Id.
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This matter was further settled when another panel agreed with the Third Circuit, and rejected the Kelly decision. See Ruiz v. Mero, 385 N.J.Super. 382 (App.Div.), certif. granted, 188 N.J. 352, (2006). Finally, the Court in Foster v. Newark Housing Authority recently held that “Ruiz was correctly decided and that the common law immunity no longer applies, the Firefighters’ Act does not bar the instant action.” Newark Housing Authority, 389 N.J.Super. at 67. The Court elaborated that:

When the words in a statute are clear, and their literal application is compatible with the overall legislative design, the interpretive process is satisfied by enforcement of the plain meaning of the words. In [Ruiz] we concluded that the purpose of the Firefighters’ Act was to abrogate the fireman’s rule entirely, thereby removing the common law impediment to suit.

Therefore, in accordance with the provisions of N.J.S.A. 2A:62A-21, a firefighter 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.

These claims are in addition to any worker’s compensation claim the person may have which pays for the medical and some disability but does not cover permanent disability in full nor pain suffering or inability to do normal activities. We handle both types of cases.

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What are the Rights of Firefighters and Police Negligently Injured?