Charles THOMPSON, Virginia Thompson, Robert Deckard, Tammy L. Deckard, Donald Thomas, Patricia Thomas, James L. Greeson, Judy Greeson, Christopher Pitts, Mary Kay Pitts, John L. Armstrong, Appellants-Plaintiffs, v. The MURAT SHRINE CLUB, INC., and Murat Temple Association, Inc., Appellees-Defendants.
No. 29A02-9208-CV-367.
Court of Appeals of Indiana, Second District.
Sept. 7, 1994.
1039
Norman T. Funk, Hill, Fulwider, McDowell, Funk & Matthews, Indianapolis, for appellees.
SULLIVAN, Judge.
On February 9, 1988, several members of the Indianapolis Fire Department (Firefighters) were injured while fighting a fire at the
The loft, constructed in 1983 by Murat employees, provided additional storage space for paper goods and miscellaneous kitchen items. An open stairway from the storage room floor led to a closed door that opened into the loft. Using a hose that had been dragged up the stairs, one of the firefighters sprayed a two-second burst of water and extinguished a “spot” fire in the loft. Moments later, as the fireman crawled across the loft to determine whether the fire was out, the loft collapsed, trapping and injuring several firefighters.
The trial court granted summary judgment in favor of the defendants Murat Shrine Club and Murat Temple Association. In order to prevail upon appeal, the Firefighters must establish the existence of a genuine issue of material fact from the materials designated to the trial court.
- Whether genuine issues of material fact exist that show defendants breached the duty of care owed to plaintiffs by maintaining a latent danger, by entrapment, or through willful or wanton misconduct;
- Whether Indiana should adopt a standard of reasonable care under the circumstances owed all lawful entrants notwithstanding present distinctions between the duties owed licensees and invitees;
- Whether firefighters who enter private property in the scope of their employment should be reclassified as invitees; and
- Whether premises liability should be abandoned either in favor of assumption of risk or in favor of public policy as the basis for the fireman‘s rule?
We affirm.
I. Duty of Care
Indiana had long held that the Fireman‘s Rule bars negligence actions seeking recovery for injuries sustained by firefighters in the line of duty. In Woodruff v. Bowen (1893) 136 Ind. 431, 34 N.E. 1113, our Supreme Court classified firefighters as licensees to whom a landowner owes no duty “except that of abstaining from any positive wrongful act which may result in his injury....” Id. at 442, 34 N.E. at 1117. Further, a firefighter is deemed to take “all risks as to the safe condition of the premises upon which he enters.” Id. Unless a statute or ordinance imposes a duty to keep a building safe specifically for the benefit of firefighters “in case of a fire,” the landowner‘s duties are those prescribed by common law. Id. at 443-44, 34 N.E. at 1117.
In Woodruff, a fireman was killed when a roof upon which he ventured to fight a fire collapsed without warning. The building had been remodeled prior to the fire, but the owner neither increased the strength of the walls nor altered the foundation to the degree necessary to provide sufficient support for the building‘s uses. The owner of the building knew the building could not support the weight of the stock of stationery and books stored therein and, furthermore, knew that the building would not withstand any additional weight such as the weight of water in case of fire. The prevailing city ordinance declared it unlawful to “construct, erect or maintain any unsafe, insecure and dangerous wall, building or structure within the limits of [Indianapolis]....” Woodruff, supra, at 435-36, 34 N.E. at 1115. Any wall, structure or building that was “likely to fall, or to take fire” was deemed unsafe and insecure. Id.
Despite the building owner‘s knowledge that the building was likely to fall because it was insecure and unsafe, the owner concealed this condition from the fire department when it responded to a fire upon the premises. The firefighters proceeded to throw water upon the building and its contents. Our Supreme Court attributed the building collapse to the weight of the stock and the water used to douse the flames as well as to pre-existing structural inadequacies of the building. These factors combined
Today, the Fireman‘s Rule encapsulates the principle that public safety officers “whose occupations by nature expose them to particular risks, may not hold another negligent for creating2 the situation to which they respond in their professional capacity.” Kennedy v. Tri-City Health Center (1992) 3d Dist. Ind.App., 590 N.E.2d 140, 142, trans. denied (quoting Koehn v. Devereaux (1986) 3d Dist. Ind. App., 495 N.E.2d 211, 215). Notwithstanding Woodruff, supra, and its progeny, the Firefighters cite positive wrongful acts, identified in Kennedy, supra, which might permit recovery. The Firefighters contend: (1) that Murat knew, but failed to warn them, that the loft was a latent danger; (2) that Murat‘s conduct in constructing the loft was so grossly deviant from everyday standards as to render Murat‘s conduct willful or wanton; and (3) that the loft constituted an entrapment.
The Firefighters place substantial reliance upon the fact that the Murat failed to obtain a building permit3 before the loft was constructed in contravention of local ordinances. The gist of this argument is that, had a permit been obtained, the oversight provided by architects, engineers, or building inspectors would have averted any potential structural defect or safety concern. The Firefighters equate the failure to obtain a permit (as well as the failure to secure the advice of an architect or engineer) with a “positive wrongful act.” In the Firefighters’ opinion, this presents a genuine issue of material fact as to whether the failure was willful or wanton conduct, i.e., that the Murat proceeded without regard to the required procedures which led, eventually, to the concealment of a latent danger and the maintenance of an entrapment.
We disagree. First, and foremost, even if the Murat should have either secured professional advice or obtained a permit before altering the storage room, the Firefighters have failed to show that the conduct violated a statute drafted to insure the safety of firemen in case of a fire. Woodruff, supra (distinguishing ordinances for the safety of “public safety officers” from those providing for the safety of the general public). Thus, failure to proceed in conformity with building regulations does not trigger liability under Woodruff, supra.
Second, even if the Murat had used alternative4 construction methods that arguably
Third, the Firefighters seize upon a reference to the loft as a “firetrap” as evidence of a genuine issue of material fact as to whether the loft was an entrapment.5 After the fire, John Preston, the Murat‘s General Manager, discussed plans to rebuild the storage room in a manner that would eliminate a pre-existing firetrap. In further testimony, however, Preston clarified that it was a fireman who, after the fire, called the loft a firetrap. As is often the case, the illumination of hindsight often suggests a better course of conduct once the danger is past. Be that as it may, an after-the-fact characterization does not provide the necessary basis upon which to establish entrapment.
II. & III. Licensee Status
The Firefighters essentially challenge the common law distinctions between licensees and invitees. In a two-pronged attack, the Firefighters urge this court to abolish the “antiquated” common law classification system or, in the alternative, reclassify firefighters as invitees. The Murat counters that, notwithstanding recent reform6 to Indiana‘s classification system of land entrants, invitees remain a separate and distinct class and that Indiana law maintains, a separate and distinct degree of care owed to licensees.
At the outset, we note that the Firefighters have presented an able argument and have provided ample authority upon which to premise a change in the law. The Firefighters urge that Indiana “extricate [itself] from a semantical quagmire“, quoting Mariorenzi v. Joseph DiPonte, Inc. (1975) 114 R.I. 294, 333 A.2d 127, 133, that has perpetuated the “antiquated common law system of classifying entrants to premises” to which Indiana tenaciously clings. Brief of Appellant at 29. In its place, they posit, Indiana should adopt a unitary standard of reasonable care under the circumstances. The Firefighters also cite authority for the proposition that firefighters should be classified as invitees and, therefore, be afforded the duty of reasonable care.
As eloquent or as persuasive as the argument may be, we feel compelled, despite its age, to apply the tenets of Woodruff, supra. In reviewing the line of cases that have relied upon Woodruff, we are reminded that the arguments presented here have apparently fallen upon deaf ears.7 Be that as it may, it
IV. Alternatives to Premises Liability
The Firefighters also invite us to abandon premises liability as a basis for the Fireman‘s Rule in favor of (1) the assumption of risk or (2) public policy. Their position is supported, once again, with various rules employed by other jurisdictions. The Firefighters propose various tests and standards of care to determine the landowner‘s duty to public safety officers.
The assumption of risk approach, articulated in Armstrong v. Mailand (1979) Minn., 284 N.W.2d 343, 350, imposes a duty of reasonable care upon landowners “except to the extent firemen primarily assume the risk when entering upon the land.... [but firemen] do not assume, in a primary sense, risks that are hidden from or unanticipated by the firemen.” Thus, the Firefighters in the instant case would not be precluded from recovery if they could prove that the collapse of the loft was “not the product of the fire but pre-existed the conflagration and, therefore, could be deemed a hidden or unanticipated risk.” Brief of Appellant at 40 (quoting Flowers v. Sting Security (1985), 62 Md. App. 116, 488 A.2d 523, 537, aff‘d sub nom. Flowers v. Rock Creek Terrace Ltd. (1987), 308 Md. 432, 520 A.2d 361).
Alternatively, the Firefighters note that in certain jurisdictions, firemen are simply not classified for purposes of premises liability. Rather, on the basis of public policy, firefighters are precluded from recovering for injuries sustained in the line of duty. See, e.g., Kreski v. Modern Wholesale Electric Supply Co. (1987), 429 Mich. 347, 415 N.W.2d 178. The public policy rationale is based, in part, upon the “relationship between firemen and policemen and the public that calls on these safety officers specifically to confront certain hazards on behalf of the public.” Id. 415 N.W.2d at 187. Accordingly, the availability of worker‘s compensation benefits “fairly spreads the cost of these injuries to the public as a whole rather than individual property owners.” Id. 415 N.W.2d at 188.8 Under such a public policy rationale, Firefighters would permit or bar recovery based upon the exercise of reasonable care under the circumstances.
As we have previously stated, supra, whether the foregoing analyses provide a more valid or more rational response to the issue before us is beyond our consideration. Neither are we at liberty to impose or to effectuate the judicial ruminations of foreign jurisdictions no matter how persuasive or well-intentioned they may be. At this juncture, the Fireman‘s Rule, and its theoretical underpinnings, remains the law in Indiana and must be applied in the instant case. Having determined that the Firefighters have failed to identify an issue of material fact and having rejected the Firefighters’ attempt to displace the prevailing rule of law, we must conclude that the Murat was entitled to summary judgment as a matter of law.
The judgment of the trial court is affirmed.
RILEY, J., concurs.
KIRSCH, J., concurs and files separate opinion.
KIRSCH, Judge, concurring.
I concur with the majority in all respects. I write separately only to note that our deci-