Barnum v. Rural Fire Protection Co.

• Decision Date: 26 June 1975
• Docket Number: CA-CIV,No. 1,1
• Citation: 537 P.2d 618,24 Ariz.App. 233
• Parties: Phillip R. BARNUM, dba Soundmaster Manufacturing Co., Appellant, v. RURAL FIRE PROTECTION COMPANY, a corporation, Appellee. 2359.
• Court: Arizona Court of Appeals

Page 618

537 P.2d 618

24 Ariz.App. 233

Phillip R. BARNUM, dba Soundmaster Manufacturing Co., Appellant, v.RURAL FIRE PROTECTION COMPANY, a corporation, Appellee.

No. 1 CA-CIV 2359.

Court of Appeals of Arizona, Division 1, Department A.

June 26, 1975.

[24 Ariz.App. 234] Black, Robertshaw, Frederick, Copple & Wright, P.C. by Richard A. Black, Phoenix, for appellant.

Snell & Wilmer, by John J. Bouma, Daniel J. McAuliffe, Phoenix, for appellee.

OPINION

FROEB, Judge.

This is an action by plaintiff(appellant)Phillip R. Barnum against defendant(appellee)Rural Fire Protection Company to recover damages sustained by Barnum's business in a fire started by an unknown party during the night of July 28, 1971.Our task is to determine the extent of liability, if any, of a private fire-fighting company which fights a fire when under no legal obligation to do so.

Barnum occupied rented space in a shopping center building located at 807 N. Scottsdale Road in an unincorporated area of Maricopa County, Arizona.The business was in the middle of five contiguous business stores which comprised a small shopping center.The northernmost business, where the fire broke out, was a carpet store.Barnum's business, Soundmaster Manufacturing Co., involved the design, development, manufacture and sale of custom and production-type sound equipment.He also sold, at retail, tape recorders, microphones, guitars and comparable items.At the time of the fire the store contained an inventory of electronic equipment, including scopes, generators, voltage meters and amplification systems.

At 12:23 A.M., on July 29, 1971, Rural received an alarm reporting the fire at the shopping center and immediately responded with trucks, men and equipment.Barnum was advised of the fire by reason of a detection device he had installed in his store and arrived at the scene at approximately 12:35 A.M., right after Rural had begun fighting the fire.

The trial record contains a great amount of testimony concerning the progress of the fire and the manner in which it was fought by Rural.Barnum argued that Rural had ample water available, but negligently failed to supply it in sufficient quantities to the scene of the fire.Barnum also contended that Rural was negligent in refusing him permission to enter his store in order to personally carry out and thus salvage some of his equipment which was ultimately consumed by the blaze.

As for the claim of negligent fire-fighting, there was considerable testimony detailing the conduct of the firemen; the use of the fire trucks; the use of fire hoses, and the manner in which Rural dealt with the exigency at hand.

As for the claim that the firemen negligently denied Barnum access to his store, Barnum testified that there were no flames in his store until somewhere between 20 and 40 minutes after he arrived and that he could have entered to rescue some of his equipment and thus minimized his loss.There was other testimony that by the time he arrived the fire had spread beyond the carpet store into the common attic shared by the other four businesses, including his own; that there was smoke present in the store and water was being hosed in by the firemen, and that the canopy overhanging a common porch had given way.Barnum stated he did not enter his store because he was told not to due to the danger at hand by both a sheriff's deputy as well as Rutal's firemen.

Following the close of plaintiff's evidence, Rural moved for a directed verdict, which was granted.From the judgment of the trial court against him, Barnum brings this appeal.Under the circumstances, the evidence and all reasonable inferences therefrom are viewed by us in the light most favorable to appellant.Tanner v. Levie, 105 Ariz. 149, 460 P.2d 995(1969).

To constitute actionable negligence the alleged tort feasor must have owed a duty to the injured party, the breach of which proximately caused the injury in question.Morris v. Ortiz, 103 Ariz. 119, 437 P.2d 652(1968).The determination of the existence of a duty, that is, whether the defendant stands in such a relation to the plaintiff that the law will impose upon him an obligation of a certain standard of conduct, is a question of law to be resolved solely by the court.Glowacki v. A. J. Bayless Markets, 76 Ariz. 295, 263 P.2d 799(1953).

The legal relationships brought into being as the result of fire and its consequent damage have not prompted the courts to define special rules of liability.Instead, when liability is asserted, courts have inquired into the status of persons involved in the conflagration in deciding the extent and limits of duty.Where liability for careless fire-fighting or failure of fire protection is asserted, the alleged wrongdoer is usually a municipality or other public body.See, e.g., Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427(1953);Steitz v. City of Beacon, 295 N.Y. 51, 64 N.E.2d 704(1945);Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y.S.2d 595, 204 N.E.2d 635(1965);Duran v. City of Tucson, 20 Ariz.App. 22, 509 P.2d 1059(1973).

Where public bodies have been involved, many of the early cases denied liability for the failure of fire protection on the basis of sovereign immunity.See, e.g., City of Columbus v. Mcllwain, 205 Miss. 473, 38 So.2d 921(1949);Valevais v. City of New Bern, 10 N.C.App. 215, 178 S.E.2d 109(1970).Such cases furnish no precedent for us in view of the abrogation of sovereign immunity in Arizona.Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107(1963).Nonetheless, the removal of the defense of sovereign immunity did not create any new liability for a public body.Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158(1972).Liability to an individual for damages will not arise where the public body owes a duty to the general public as a whole unless it is shown that it owes a specific duty to the individual.Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376(1969);Duran v. City of Tucson, supra.What will bring into existence a duty to the individual will of course depend on the facts of each case:

'Simply stated, there are situations where a government, or agency thereof, can by its conduct, narrow an obligation owing to the general public into a special duty to an individual, for the breach of which it is responsive in damages.'Massengill v. Yuma County, 104 Ariz. 518, 523, 456 P.2d 376, 381.

Does the rule thus stated apply to Rural Fire Protection Company?The evidence shows that Rural is a private Arizona corporation organized for profit and not a department of a governmental body.It should also be noted that Rural is not a 'volunteer fire company' such as may be organized in accordance with the provisions of A.R.S. §§ 9--1001 through 9--1008.Its business is to provide private fire department-type fire protection to municipal, industrial, commercial and residential customers who subscribe to and pay for the service.See, Rural Fire Protection Co. v. Hepp, 366 F.2d 355(9th Cir.1966).At its option Rural also responds to and fights fires where it has no contractual duty to do so.The corporation is the holder of a certificate of convenience and necessity issued by the Arizona Corporation Commission pursuant to A.R.S. § 40--281.The franchise gives Rural the exclusive right to provide private fire protection service in the franchised area to the exclusion of all others.It is entitled to offer fire protection service to subscribers for an annual charge approved by the Corporation Commission It is under no obligation to provide fire service to nonsubscribers, but should it a charge of 17 times the annual rate charged to subscribers is authorized by the Commission.Unlike a municipal water or fire protection department, it is under no legal obligation to render adequate service impartially and without discrimination to all members of the general public.See, for comparison, Veach v. City of Phoenix, 102 Ariz. 195, 427 P.2d 335(1967).In this case, neither Barnum nor the owner of the shopping center was a subscriber to the services offered by Rural.Thus, Rural had no contractual obligation to respond to the fire or to fight it.It made no charge to Barnum for its efforts to extinguish the fire, though it was authorized to do so.

As a consequence, we conclude that Rural does not take on the status of a governmental unit or department thereof.Its characteristics are essentially private, although it possesses certain authority and powers arising out of a certificate of the Corporation Commission.Its duties and liabilities are those of an individual or private corporation.If Rural had no obligation to respond to or fight the fire, what then was its duty, if any, when it undertook to do so?

The duty of a volunteer who undertakes to act is expressed by Justice Cardozo in Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275(1922):

'. . . It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all . . .'135 N.E. 275, 276.

The modern counterpart of the rule is set forth in Restatement 2d. of Torts, § 323:

' § 323.Negligent Performance of Undertaking to Render Services

'One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the undertaking.'

Tort liability under this rule arises wholly apart from a consideration of whether the volunteer is governmental or private, or from a consideration of the peculiar nature of the hazard involved, such as fire.It is, plainly, a...