Austin v. City of Buffalo, 1

• Decision Date: 31 January 1992
• Docket Number: No. 1,1
• Parties: Margaret AUSTIN, Administratrix of the Estate of Michael Austin, Deceased, and Margaret Austin, Individually, Respondent, v. CITY OF BUFFALO, Burnwell Gas of Alden, Inc., Chemi-Trol Chemical Co., Rego Company, a Division of the Rego Group, Inc., a Subsidiary of Marmon Group, Inc., Seimax Wholesale Supply Corp., Seimax Gas Corp., George D. Wilson, Jr., Individually and d/b/a Chimera Radiator Company, and Fedders Corporation, Appellants. Jean CATANZARO, Administratrix of the Estate of Michael G. Catanzaro, Deceased, and Jean Catanzaro, Individually, Respondent, v. CITY OF BUFFALO, et al., Appellants. Mary Louise COLPOYS, Executrix of the Estate of Matthew E. Colpoys, Sr., Deceased, and Mary Louise Colpoys, Individually, Respondent, v. CITY OF BUFFALO, et al., Appellants. Appeal
• Court: New York Supreme Court — Appellate Division

Page 604

580 N.Y.S.2d 604

179 A.D.2d 1075

Margaret AUSTIN, Administratrix of the Estate of Michael

Austin, Deceased, and Margaret Austin, Individually, Respondent, v. CITY OF BUFFALO, Burnwell Gas of Alden, Inc., Chemi-Trol

Chemical Co., Rego Company, a Division of the Rego Group,

Inc., a Subsidiary of Marmon Group, Inc., Seimax Wholesale

Supply Corp., Seimax Gas Corp., George D. Wilson, Jr.,

Individually and d/b/a Chimera Radiator Company, and Fedders

Corporation, Appellants.

Jean CATANZARO, Administratrix of the Estate of Michael G.

Catanzaro, Deceased, and Jean Catanzaro, Individually, Respondent, v. CITY OF BUFFALO, et al., Appellants.

Mary Louise COLPOYS, Executrix of the Estate of Matthew E.

Colpoys, Sr., Deceased, and Mary Louise Colpoys, Individually, Respondent, v. CITY OF BUFFALO, et al., Appellants. Appeal No. 1.

Supreme Court, Appellate Division Fourth Department.

Jan. 31, 1992.

Maghran, McCarthy & Flynn by W. Donn McCarthy, Buffalo, for appellant, Chemi-Trol Chemical Co.

City of Buffalo, Dept. of Law by Michael Risman, Buffalo, for appellant, City of Buffalo.

Damon & Morey by Andrew Feldman, Buffalo, for appellants, Burnwell Gas of Alden, Seimax Gas and Seimax Wholesale.

Phillips, Lytle, Hitchcock, Blaine & Huber by James Whitcomb, Buffalo, for appellants, George D. Wilson, et al.

Maloney, Gallup, Roach, Brown & McCarthy, P.C. by Daniel Roach, Buffalo, for appellant, Rego Co.

Cohen & Lombardo by James Spandau, Buffalo, for appellant, Fedders Corp.

Paul William Beltz, P.C. by Robert Nichols, Buffalo, for respondents, Austin, Colpoys and Catanzaro.

Before BOOMER, J.P., and PINE, BALIO, LAWTON and DAVIS, JJ.

MEMORANDUM:

This appeal and the companion appeals arise from a tragic incident in the City of Buffalo that resulted in the injury or death of a number of firefighters. The firefighters responded to a call that propane gas was escaping from a tank at a warehouse in the City. Before they entered the building, the propane gas exploded, killing or injuring fifteen of the firefighters. The injured firefighters and the estates of the deceased firefighters commenced actions against the City of Buffalo, the owners and occupants of the warehouse, the manufacturers of the propane tank and its components, and others. The various defendants moved for summary judgment dismissing the complaint based on the Fireman's Rule. "It is a long standing common-law rule that firefighters injured while extinguishing fires generally cannot recover against the property owners or occupants whose negligence in maintaining the premises occasioned the fires" (Santangelo v. State of New York, 71 N.Y.2d 393, 396, 526 N.Y.S.2d 812, 521 N.E.2d 770; see also, Kenavan v. City of New York, 70 N.Y.2d 558, 566, 523 N.Y.S.2d 60, 517 N.E.2d 872). The initial rationale, since rejected, for the Fireman's Rule was that firefighters entering upon premises took the property as they found it. Later cases have "cast the general denial of liability in terms of assumption of risk: persons who choose to become firefighters assume the risks of fire-related injuries, including the risk of negligence of property owners and occupants in maintaining their premises" (Santangelo v. State of New York, supra, 71 N.Y.2d at 397, 526 N.Y.S.2d 812, 521 N.E.2d 770). "[M]unicipalities employ firefighters precisely because special skills and expertise are required to confront certain hazards--usually of an emergency nature--that expose the public to danger, these hazards often arise from negligence, and as a matter of public policy firefighters trained and compensated to confront such dangers must be precluded from recovering damages for the very situations that create a need for their services" (Santangelo v. State of New York, supra, at 397, 526 N.Y.S.2d 812, 521 N.E.2d 770).

The Fireman's Rule does not bar recovery when the negligence that caused the injury is separate and apart from the negligent acts which occasioned the firefighters' presence (Furch v. General Elec. Co., 142 A.D.2d 8, 12, 535 N.Y.S.2d 182, Dawes v. Ballard, 133 A.D.2d 662, 664, 520 N.Y.S.2d 11). Thus, in Furch v. General Elec. Co. (supra ), the defendant was not protected by the Fireman's Rule where it installed materials which, during the fire, released toxic substances that injured responding firemen. The Fireman's Rule was inapplicable to that case because the installation of the toxic substance was "sufficiently separate and apart from the negligence which occasioned the emergency for which plaintiffs were summoned" (Furch v. General Elec. Co., supra, 142 A.D.2d at 12, 535 N.Y.S.2d 182). "To be contrasted is the situation where the emergency itself patently involves the risk of exposure to toxic substances" (Furch v. General Elec., supra, at 12, 535 N.Y.S.2d 182).

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 Electric 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 firemanic duties" (Furch v. General Elec. Co., supra, 142 A.D.2d at 11-12, 535 N.Y.S.2d 182). It is applicable not only to contractors who perform work on the building (Furch v. General Elec. Co., supra ), but also to manufacturers...