Police Officer Who Enters Premises in the Line of Duty is At Least a Licensee, to Whom Landowner Owes a Duty of Care

Rowe v. Mazel Thirty, LLC, 209 N.J. 35 (2012).  Plaintiff was a police officer whose duties in a “Safe Streets” program included checking vacant apartment buildings for drugs or other illicit activity.  Plaintiff was going down a flight of stairs to ensure that a basement door to the building was secured when cement that covered the stairs broke, causing plaintiff to fall and sustain serious injury.  Plaintiff had been at the building before, and defendants, the owners, knew that a police officer had previously come to check on the basement door.  Plaintiff sued for his injuries, but the Law Division and Appellate Division granted summary judgment to defendant, on the grounds that defendants could not have foreseen that plaintiff would be there, that the defect in the stairs was obvious, and that plaintiff knew the stairs were dangerous.   The Supreme Court granted certification and reversed in a unanimous opinion by Justice Long.

Formerly, under the “firefighters rule,” lawsuits by police or firefighters injured while performing their duties as a result of the negligence of others were barred.  The Court began by noting that the firefighters rule had been abrogated.  Thus, the standard categories of visitors to premises– trespasser, licensee and invitee– applied in this case.

As Justice Long described the categories, “[t]he invitee comes by invitation, express or implied, generally for some business purpose of the owner.  The licensee is permitted to come upon the property, and does so for his own purposes.  The trespasser is ‘neither invited nor suffered'” (citations omitted).

While in some cases a police officer or firefighter might be considered an invitee, “the lowest duty to be ascribed to a police officer or firefighter who is injured in the performance of his official functions is that owed to a licensee:  the duty to warn of dangers of which the owner is or reasonably should be aware, and which are reasonably unknown to the officer.”  On the facts here, plaintiff was a licensee to whom defendants owed the duty just described. 

Justice Long went on to hold that the courts below had wrongly determined as a matter of law that plaintiff knew of the dangerous condition of the stairs.  In fact, he testified only that the stairs “looked the same” as on his previous visit, not that he observed obvious disrepair or a dangerous condition.  “[T]he suggestion that similarity of appearance was notice of danger presents a question for the jury.”  Accordingly, the Court reversed and remanded for further proceedings.

Mazel Thirty, LLC and its co-defendant just had no luck in this case.

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