179 A.D.2d 1075 | N.Y. App. Div. | 1992
The Fireman’s Rule does not bar recovery when the negligence that caused the injury is separate and apart from the
Applying those rules to the facts in this case, we conclude that the Fireman’s Rule precludes recovery by the plaintiffs against any of the defendants, except those liable under General Municipal Law § 205-a. The negligence of the defendants in storing the propane tank in the warehouse and in causing it to leak was not separate and apart from the negligence which occasioned the emergency for which plaintiffs were summoned. The propane leak was the very reason why the firefighters were summoned. That fact distinguishes this case from cases where the firefighters were summoned to put out a fire and were unaware of a hidden hazard (see, e.g., Furch v General Elec. Co., supra; Dawes v Ballard, supra).
The Fireman’s Rule affords protection not only to the owners and occupants of the premises where the injuries occurred but "to any person whose negligence creates the occasion for the firefighter’s services and thereby exposes him to the hazards normally associated with the performance of fire-manic duties” (Furch v General Elec. Co., supra, at 11-12). It is applicable not only to contractors who perform work on the building (Furch v General Elec. Co., supra), but also to manufacturers who would otherwise be liable under the principles of products liability. In view of the rationale for the Fireman’s Rule, there is no justification for excluding manufacturers from the exemption afforded by the rule (Mahoney v Carus Chem. Co., 102 NJ 564, 510 A2d 4). The particular risk created by the manufacturer is often, as here, one which the firefighter is held to have assumed (see, Brown v General Elec. Corp., 648 F Supp 470; Armstrong v Mailand, 284 NW2d 343 [Minn]; Mahoney v Carus Chem. Co., supra).
The actions by the firefighters and their estates against the City of Buffalo should have been dismissed. Although a munic
In addition to the application of the Fireman’s Rule, there is another reason why summary judgment should have been granted to the defendant Fedders Corporation. Fedders entered into a contract with defendant Chimera Radiator Company whereby Chimera was to manufacture radiators for Fedders. The proof on the motion for summary judgment establishes that Chimera was an independent contractor of Fedders, that Fedders exercised no control over the manufacturing process and that, in any event, the manufacturing process was unrelated to the storage of the tank on the premises. The employer of an independent contractor is not liable for injury caused to a third party by an act or omission by the independent contractor or its employees (Wright v Esplanade Gardens, 150 AD2d 197, 198). Mere inspection for quality control does not make Fedders liable for any negligent act of Chimera or its employees. The fact that defendant agreed to pay Chimera $1,000 per month for the storage of the radiators manufactured by Chimera does not establish that Fedders had control of any space at the warehouse. Thus, there is no question of fact concerning Fedders’ status as a tenant in control of the premises.
Accordingly, except with respect to defendants George D. Wilson, Jr. (also sued as George D. Wilson, Sr.) individually and doing business as Chimera Radiator Company, and doing business as Chimera Hamburg Radiator Manufacturing Company, and doing business as Hamburg Radiator Sales & Service Company, George Wilson & Son, Inc., Division Enterprises, Inc., Amherst Radiator Co., and LEG Radiator Company, Inc. (the Wilson defendants), the order appealed from is