Entwistle v. Draves

CLIFFORD, J.,

concurring in judgment.

I agree with the Court that the conduct of which these defendants are alleged to have been guilty does not rise to the level of willful and wanton as that term is ordinarily defined. See Krauth v. Getter, 31 N.J. 270, 277 (1960). But my vote to affirm does not rest on that ground. Rather, in keeping with my partial dissent in Mahoney v. Carus Chem. Co., 102 N.J. 564, 583 (1986), I would hold that the “fireman’s rule” is available as a defense even to a suit by a police officer who alleges and, unlike these plaintiffs, can establish that defendants were guilty of willful and wanton misconduct.

Judge Van Tassel had it right at the trial level, Entwistle v. Draves, 194 N.J.Super. 571, 577 (Law Div.1984), with his reference to the California law:

Police officers may not complain of wilful or wanton misconduct for they are employed to deal with behavior made the subject of their duties whether it arises as a result of someone’s careful behavior, negligence or wilful or wanton misconduct.

[Holden v. Chunestudey, 101 Cal.App. 3d 959, 962, 161 Cal.Rptr. 925, 926 [Ct.App.1980).]

I concur in the judgment to affirm.