Anderson v. Cinnamon

• Citation: 55 A.L.R.2d 516,365 Mo. 304,282 S.W.2d 445
• Decision Date: 12 September 1955
• Docket Number: No. 44187,44187
• Parties: , 55 A.L.R.2d 516 Robert E. ANDERSON, Appellant, v. Mr. and Mrs. Barney CINNAMON, Mr. and Mrs. Phillip Cinnamon, and Mr. and Mrs. Dave Gastman, Respondents.
• Court: United States State Supreme Court of Missouri

Page 445

282 S.W.2d 445

365 Mo. 304, 55 A.L.R.2d 516

Robert E. ANDERSON, Appellant, v. Mr. and Mrs. Barney CINNAMON, Mr. and Mrs. Phillip Cinnamon and Mr. and Mrs. Dave Gastman, Respondents.

No. 44187.

Supreme Court of Missouri, En Banc.

Sept. 12, 1955.

Rehearing Denied Oct. 10, 1955.

John J. Cosgrove, Henry Arthur, Campbell, Arthur & Clark, Kansas City, for appellant.

David R. Hardy, Lane D. Bauer, Sebree, Shook, Hardy & Ottman, A. J. Granoff, George V. Aylward, Kansas City, for respondents.

HYDE, Judge.

Action for $15,000 damages for personal injuries. The court dismissed plaintiff's petition, on defendants' motion, on the ground of failure to state a claim upon which relief can be granted. This case requires determination of the duty owed by owners of a building to firemen on the premises for the purpose of fighting a fire.

The petition alleged that defendants owned an apartment building with a three story porch, 'running from the west wing to the east wing'; that the porch was in a dangerous and unsafe condition, insecurely fastened to the building and insecurely supported; and that defendants knew of such condition but 'carelessly and negligently failed to put said porch in a reasonably safe condition.'

Paragraphs 3, 4 and 5 of the petition further state: '3. Plaintiff states that on April 1, 1953, while in the discharge of his duty as a member of the Kansas City Fire Department, he was engaged with others of said fire department in fighting a fire in said building, and that to extinguish said fire, plaintiff and other firemen went on said porch with fire hose and other fire fighting equipment, and that ladders were placed against said porch.

'4. Plaintiff further alleges that while he and the other firemen were fighting the fire as above described and attempting to extinguish the same, the defendant Barney Cinnamon was on the premises and had full knowledge of the presence of plaintiff and the other firemen on said porch, together with the fire-fighting equipment above described; that notwithstanding his actual knowledge of their presence upon said porch and his knowledge that said porch was dangerous and unsafe for ordinary usage, he carelessly and negligently failed to warn plaintiff that said porch was dangerous and unsafe and insecurely attached and supported, and thereby permitted plaintiff and the other firemen to enter into a situation which was a dangerous trap.

'5. That as a direct result of defendants' negligence in failing to repair said porch and put the same in a reasonably safe condition, said porch collapsed when plaintiff and the other firemen went thereon in order to fight said fire, and that as a direct result of the defendants' negligence in failing to warn plaintiff of said condition and in permitting him to go into said dangerous trap, plaintiff fell when said porch collapsed.'

The status of a fireman is generally held to be the same as that of a licensee. Prosser on Torts, 628; 38 Am.Jur. 785, Sec. 125; 65 C.J.S., Negligence, Sec. 35, p. 494; Restatement of Torts, Secs. 342 and 345 and Missouri Annotations; 13 A.L.R. 637, 61 A.L.R. 1028, 141 A.L.R. 584 annotations. Firemen are in a different class from licensees because their right to enter is independent of any permission of the possessor of the property, who has no right to exclude them, and some cases say they have a status sui generis. Shypulski v. Waldorf Paper Products Co., 232 Minn. 394, 45 N.W.2d 549; Ryan v. Chicago & N. W. Ry. Co., 315 Ill.App. 65, 42 N.E.2d 128. Nevertheless, the duty of a possessor of land to firemen is the same as to licensees, who enter with his permission, as the authorities hereinabove cited show. Firemen enter under a license given by law, primarily for the benefit of the public generally, although the possessor may also be benefited by their work. Firemen have police powers at fires. Kansas City Charter 1946, Art. 3, Sec. 31. We, therefore, must determine this case on the basis of a possessor's duty to a licensee.

It is the well-settled law in this state that a possessor owes no duty to licensees as to maintenance but that the licensee takes the premises as he finds them, except for wantonness or some form of intentional wrong or active negligence of the possessor. Stevenson v. Kansas City Southern Ry. Co., 348 Mo. 1216, 159 S.W.2d 260; Porchey v. Kelling, 353 Mo. 1034, 185 S.W.2d 820; Walters v. Markwardt, 361 Mo. 936, 237 S.W.2d 177; Twine v. Norris Grain Co., Mo.App., 226 S.W.2d 415. 'It would be an obviously unreasonable burden to impose on landowners to require them to keep the whole of their premises in such condition as to make every part of it safe for those whose unusual and exceptional right of entry may never accrue. The broad range of such a duty, the impossibility of forecasting the precise point to which the officer's duties may call him, the infrequency of his probable visits, all clearly preclude the idea that the balance of social benefit can require such a serious restriction on the owner's use of his land, or justify the imposition of such a burden on his exchequer to prevent so vague a risk of so improbable an injury.' (The Liability of a Possessor of Land in Missouri to Persons Injured While on the Land--McCleary, 1 Mo.Law Rev. 45, 57, quoting from Bohlen, Studies in the Law of Torts.) Therefore, the claim 'of defendants' negligence in failing to repair said porch and put the same in a reasonably safe condition' cannot be a basis of liability to plaintiff.

As to the duty to warn, claimed by plaintiff, there seems to be some conflict of authority throughout the country. However, most of the cases cited by plaintiff can be distinguished as involving unusual hazard from highly dangerous substances kept on the premises such as gasoline or explosive material. See Campbell v. Pure Oil Co., 194 A. 873, 15 N.J.Misc. 723; Jenkins v. 313-321 W. 37th Street Corp., 284 N.Y. 397, 31 N.E.2d 503; Mason Tire & Rubber Co. v. Lansinger, 108 Ohio St. 377, 140 N.E. 770; Clinkscales v. Mundkoski, 183 Okl. 12, 79 P.2d 562; see also Lamb v. Sebach, 52 Ohio App. 362, 3 N.E.2d 686. The cases of Smith v. Twin State Gas & Elec. Co., 83 N.H. 439, 144 A. 57, 783, 61 A.L.R. 1015 and Texas Cities Gas Co. v. Dickens, Tex.Civ.App., 156 S.W.2d 1010, involved negligence of a public utility company in handling gas (failing to find a leak in one and failing to shut off the line to a burning building in the other) rather than the duty of a possessor of land. As we pointed out in the Stevenson case, 159 S.W.2d loc. cit. 263, and as also stated in the Missouri annotations to Secs. 342 and 345, Restatement of Torts, we have never established the broad rule of liability to licensees stated in those sections to the extent of a duty to warn licensees of every known condition that might involve an unreasonable risk to them. While we agree with the cases requiring warning of the presence of inherently dangerous substances involving unusual hazard, especially when there is a fire on the premises which is likely to explode them, nevertheless to establish such a duty as to all known conditions that could involve some danger would require additional duties of possessors of land in a great many situations in which it has been held no duties exist under previous decisions of this state. We do not think we should change the law of this state to that extent.

A leading case on the duty of a possessor of land is Glaser v. Rothschild 221 Mo. 180, 120 S.W. 1, 3, 22 L.R.A.,N.S., 1045 holding that leave and license 'bestows no right to care.' In following this case, in Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679, 687, as to a possessor's duty to a licensee, we said: 'the only duty of the owner is that he must not willfully or wantonly injure him, or knowingly let him go into a hidden peril, or otherwise, by an affirmative negligent act, injure him after his presence is or should be discovered in a position of danger. He owes him no affirmative duty of care to protect him.' We think the explosive material cases are a good example of what is meant by letting one go into hidden peril and some of them are set out in the footnotes to 45 C.J. 796 which we cited in connection with that statement. See also 65 C.J.S., Negligence, Sec. 38, p. 504; Boyer v. Guidicy Marble, Terrazzo & Tile Co., Mo.Sup., 246 S.W.2d 742 and cases cited concerning duty as to explosives. Thus it is unusual hazard that requires warning to licensees. Harmful chemicals, explosives and other inherently dangerous materials developed by modern science and industry, no doubt, would be within this rule at least under circumstances where licensees could not be expected to know of their presence or effect. However, in Gannon v. Royal Properties, 285 App.Div. 131, 136 N.Y.S.2d 129, 131, it was held failure to warn of presence of gasoline was not negligence when the fire was in a garage, the court saying: 'Gasoline is known by everybody to be stored about a garage.' The court further stated: 'While the testimony in behalf of plaintiffs was that only about ten percent of garage fires involved burning gasoline, still such a condition could not come as a surprise to firemen and we are unable to accept the proposition advanced by plaintiffs that it became the duty of defendant to warn the firemen of the nature of the fire because such a fire called for a special type of attack. This is a matter of professional experience and judgment which can hardly be expected to exist on the part of property owners and the responsibility therefor cannot properly be shifted to them.' Thus the presence of gasoline in a place where it might reasonably be expected would not be a hidden peril.

We have never held there is a duty to warn licensees of structural conditions, due to age and natural deterioration or to improper construction, or to warn of conditions due to casual negligence of persons with respect to objects or materials not inherently dangerous even in...