Aravanis v. Eisenberg

• Citation: 237 Md. 242,206 A.2d 148
• Decision Date: 05 January 1965
• Docket Number: No. 113,113
• Parties: Phil J. ARAVANIS v. Lloyd A. ELSENBERG et ux.
• Court: Court of Appeals of Maryland

Page 242

237 Md. 242

206 A.2d 148

Phil J. ARAVANIS v. Lloyd A. ELSENBERG et ux.

No. 113.

Court of Appeals of Maryland.

Jan. 5, 1965.

Karl G. Feissner, Takoma Park, and Stedman Prescott, Jr., Silver Spring (Alpern & Feissner, Washington, D. C., on the brief), for appellant.

Charles E. Channing, Jr., Rockville, for appellees.

Before HAMMOND, HORNEY, MARBURY, SYBERT and OPPENHEIMER, JJ.

OPPENHEIMER, Judge.

This case involves the duties of property owners to a fireman seriously injured while fighting a fire upon their premises and the rights of a fireman at common law and under the Montgomery County Fire Prevention Code. The plaintiff-appellant sued in the Circuit Court for Montgomery County but an affidavit of removal was filed by the defendants, and the trial took place in the Superior Court of Baltimore City. At the conclusion of the testimony, the trial judge denied motions for directed verdicts requested by the plaintiff and the defendants. The jury returned a verdict for the defendants, and the plaintiff has appealed from the judgment on that verdict. He contends that his motion for a directed verdict against the defendants should have been granted, and that the trial judge erred in refusing certain prayers requested by the plaintiff and in the charge to the jury. He also contends that the trial judge committed prejudicial errors in his rulings in connection with the plaintiff's interrogatories and exceptions thereto and in permitting some testimony to be admitted over objection.

The basic facts were succinctly summarized by Judge Prendergast in his charge to the jury, as follows:

'The plaintiff seeks to recover damages for personal injuries which he sustained in the course of fighting a fire at the home of the defendants located at 8337 Grubb Road in Silver Spring, Maryland, late in the afternoon of May 22, 1962. Philip J. Aravanis, the plaintiff, was a professional fireman serving as a member of one of the companies of the Silver Spring Fire Department. His company, along with others, had responded to a fire alarm which had been give by Mrs. Diane U. Eisenberg, one of the defendants, after her husband, Lloyd A. Eisenberg, told her there was a fire in the basement of their home and directed her to telephone the alarm. Mrs. Eisenberg did so by calling the operator, who in turn relayed the alarm to the Fire Department. The firemen responded within a matter of minutes and went about their duties of extinguishing the fire.

'Mr. Aravanis was in the basement where the fire was concentrated and using a house charged with water in an effort to extinguish flames which he had observed in the ceiling through the smoke. Suddenly, according to some of the witnesses, there was a flash and plaintiff was severely burned over large parts of his body. Other firemen came to his rescue, dragged him outside the building, and he was taken by ambulance to a hospital where he remained for a considerable period of time. It is for the injuries thus sustained that he brings this suit charging that the defendants were guilty of negligence which brought about the injuries.

'There appears to be no dispute as to the cause of the fire in this case. The defendant, Lloyd A. Eisenberg, in some fashion brushed or knocked a tool off his work bench, causing it to fall down onto a jug containing acetone, which then burst and its contents spilled out on the basement floor. The acetone almost immediately came in contact with the flame on the pilot light of the hot-water heater nearby and ignited. Eisenberg's efforts to extinguish the blaze were unsuccessful and the fire spread to the ceiling and adjoining parts of his house.'

Lloyd Eisenberg is a podiatrist. At the time of the fire, he was on active duty as a podiatrist in the Air Force. He had begun to equip a professional office in the basement of his home, where the fire occurred, for the private practice of his profession. The basement contained the professional offices, recreation, utility, laundry rooms, and two hallways. The upper floor of the house was used for the family living quarters.

We shall first consider the trial judge's charge in the light of the obligations of the defendants-appellees towards the appellant at common law, then the impact of the county fire prevention code, the trial court's rulings in connection with the interrogatories, and finally, the questions raised as to the court's rulings on evidentiary matters.

I

The obligations owed by a property owner to a fireman who comes to the premises in the performance of his duties have been extensively considered in cases throughout the country, by the writers of legal treatises, in law reviews and by the American Law Institute. In general, the fireman has been held to be only a licensee. Steinwedel v. Hilbert, 149 Md. 121, 131 A. 44 (1925); Prosser, Law of Torts, § 61 (3d ed. 1964); Note, 47 Cornell L.Q. 119 (1961). In some jurisdictions there has been a change in the legal principles held applicable; almost thirty years ago, Chief Judge Bond, in delivering this Court's opinion in Steinwedel v. Hilbert, supra, referred to the re-examination of the legal rules even then taking place. The subject is one in which the law is developing by way of intensive analysis and modification of the applications of rigid concepts in the light of the particular circumstances involved. The criticism of what was formerly the almost universal rule is based essentially upon making the determination of what is justice between the parties depend upon cramming firemen into the inflexible legal category of licensee. Property owners owe licensees only the duties of abstaining from wilful or wanton injury and entrapment. Levine v. Miller, 218 Md. 74, 78-79, 145 A.2d 418 (1958); Crown Cork and Seal Co. v. Kane, 213 Md. 152, 157, 131 A.2d 470 (1957). If a fireman is to be regarded as an invitee, the property owner owes him a duty to see that the premises are reasonably safe and to warn him of any dangerous condition known, or which reasonably should have been known to the property owner but not to the fireman. Nalee, Inc. v. Jacobs, 228 Md. 525, 529, 180 A.2d 677 (1962); Peregoy v. Western Md. R.R. Co., 202 Md. 203, 95 A.2d 867 (1953).

Illinois has held that the common-law rule labelling firemen as only licensees is not to be perpetuated. Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 86 A.L.R.2d 1184 (1960). In that case, the defendants were owners and lessees of a four-story building, the first story of which was used by the owners as a store; the upper floors were used by the lessee as a hotel. Firemen were called to extinguish a fire in the premises. During the fire, a stairway collapsed, killing one of the firemen and severely injuring another. The plaintiffs sued for wrongful death, personal injuries and loss of consortium. There was evidence of negligence by the defendants in improperly storing paint, benzine and other flammables on the premises, in failing to provide fire doors or extinguishers, in permitting the accumulation of litter in the corridors, and in other particulars. The trial court entered judgments for the defendants notwithstanding the jury's verdict for the plaintiffs. The Supreme Court reversed and reinstated the verdicts, holding that the plaintiffs could recover for the defendants' failure to use reasonable care in maintaining the premises, and that the jury could have found the hazards of fire and injuries in fighting it were reasonably foreseeable. Two Justices dissented on the issue of liability. In the majority opinion, the court said:

'It is highly illogical to say that a fireman who enters the premises quite independently of either invitation or consent cannot be an invitee because there has been no invitation, but can be a licensee even though there has been no permission. The lack of logic is even more patent when we realize that the courts have not applied the term 'licensee' to other types of public employees required to come on another's premises in the performance of their duties, and to whom the duty of reasonable care is owned. If benefit to the landowner is the decisive factor, it is difficult to perceive why a fireman is not entitled to that duty of care, or how the landowner derives a greater benefit from the visit of other public officials, such as postmen, water meter readers and revenue inspectors, than from the fireman who comes to prevent the destruction of his property (Citations omitted).

'Consequently, it is our opinion that since the common-law rule labelling firemen as licensees is but an illogical anachronism, originating in a vastly different social order, and pock-marked by judicial refinements, it should not be perpetuated in the name of 'stare decisis.' That doctrine does not confine our courts to the 'Calf Path,' nor to any rule currently enjoying a numerical superiority of adherents. 'State decisis' ought not to be the excuse for decision where reason is lacking.' 20 Ill.2d at 415-416, 170 N.E.2d at 885-886.

That case has been widely discussed. See, in favor of the holding, Prosser, supra; Note, 47 Cornell L.Q. 119, supra; 14 Vand. L.Rev. 1541 (1961); contra, Scheurer v. Trustees of Open Bible Church, 175 Ohio St. 163, 192 N.E.2d 38 (1963).

Minnesota has held that a fireman responding to the call of duty enters the land of another in a status sui generis, and that the occupant has a duty to warn fireman of any hidden dangers if he has knowledge of the danger and an opportunity to give warning. Shypulski v. Waldorf Paper Products Co., 232 Minn. 394, 45 N.W.2d 549 (1951). The duty referred to in the decision is no greater than that owed to a licensee under the Maryland law. The sui generis approach is also taken in Krauth v. Geller, 31 N.J. 270, 157 A.2d 129 (1960). See also Ann. 86 A.L.R.2d, supra, 1212-1213 and 35 Minn.L.Rev. 513 (1951).

The balancing of the scales of justice as between fireman and property owner, it is suggested, may shift with the place in...