Officer Loses Claim For Fall Into Pool

Mohamed Seyam is a police officer in Parsippany, New Jersey. Seyam was chasing a car burglary suspect on foot through suburban yards in Parsippany after 9:00 p.m. on September 18, 2008. The backyard of Mohamed and Shkila Yunum was surrounded by a six-foot vinyl fence. The suspect and Seyam both attempted to climb the fence at the same time. They broke down a part of the fence and continued the chase into the Yunums’ backyard.

Unbeknownst to Seyam, the Yunums had an in-ground pool that they had drained of its water a few days earlier to make repairs. In the dark, the suspect and Seyam did not see the empty pool, and both fell in. Seyam broke his ankle. He radioed for help, and other officers arrived within a few minutes to assist. The Yunums first became aware of the police activity as a result of the commotion in their backyard after the other officers came to the scene. Seyam was transported to a hospital, received emergency treatment, and was discharged the same night. He required several orthopedic surgical procedures over the ensuing months to repair his fractured ankle.

Seyam sued the Yunums, alleging their property contained a hazardous condition and they failed to warn him so that he might avoid injury. A New Jersey appeals court rejected his lawsuit.

The Court found that “if a property owner knows the officer is present, or where the officer’s presence at that location is reasonably foreseeable, and an opportunity exists to warn him, a warning must be given concerning known dangers. The warning must be reasonable under the circumstances. Had Seyam in this case notified defendants that he needed to conduct a search of their backyard for the suspect, it would have been reasonable to expect the Yunums either to warn the officer of the empty pool or to furnish lighting so that the hazard would be visible. However, the Yunums did not have a reasonable expectation that the police would vault their six-foot fence and enter their backyard without notifying them.

“Even if landowners should be aware that such police activity might occur, Seyam does not state what form of warning would suffice. A warning sign would hardly be effective in the circumstances that resulted in Seyam’s accident and injury. A police officer chasing a suspect and breaking down a fence to apprehend him would not be in a position to observe and read a warning sign. Also, since Seyam did not enter through a gate or other entrance, where and how many warning signs would the landowner have to erect to cover the entirety of the fence perimeter that a police officer might vault?

“Warnings of dangerous conditions of property can take other forms besides signs, such as ropes, cones, sawhorses, or other barriers. A six-foot fence surrounding the entire hazard should have been a more effective barrier than any of these other physical obstructions. By maintaining a fence to enclose their pool, defendants in fact provided the kind of barrier and warning that fulfilled their duty to licensees. Seyam ignored the barrier and entered the property without notifying defendants and without being on adequate lookout himself for potential hazards in the dark. A police officer entering private property to conduct emergency police work without the knowledge of the landowner, and in particular not for the benefit of the landowner, should not expect that the property is safe for all activity.”

Seyam v. Yunum, 2013 WL 1163993 (N.J. Super. A.D. 2013).