Benjamin v. Sodus Cold Storage Co., 1

• Decision Date: 14 April 1989
• Docket Number: No. 1,1
• Citation: 540 N.Y.S.2d 70,149 A.D.2d 937
• Parties: Keith and Carolyn BENJAMIN, Respondents, v. SODUS COLD STORAGE COMPANY, Hallenbeck-Ritz, Inc., and Arlen Van Alystyne, Appellants. Appeal
• Court: New York Supreme Court — Appellate Division

Page 70

540 N.Y.S.2d 70

149 A.D.2d 937

Keith and Carolyn BENJAMIN, Respondents, v. SODUS COLD STORAGE COMPANY, Hallenbeck-Ritz, Inc., and Arlen

Van Alystyne, Appellants. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

April 14, 1989.

Andrews & Ransford by William Andrews, Syracuse, for appellant Sodus Cold Storage.

Osborn, Reed, Van De Vate & Burke by Robert DiGulio, Rochester, for appellants Hallenbeck-Ritz and Van Alstyne.

Gough, Skipworth, Petralia, Summers, Eves & Trevett by Louis Cristo, Rochester, for respondents.

Before CALLAHAN, J.P., and DOERR, BOOMER, PINE and DAVIS, JJ.

MEMORANDUM:

"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). "Once a fire starts and the firemen or fire patrolmen arrive on the scene, they assume the usual risks inherent in their work, including those arising from contact with flames or smoke * * * " (McGee v. Adams Paper & Twine Co., 26 A.D.2d 186, 190, 271 N.Y.S.2d 698, affd 20 N.Y.2d 921, 286 N.Y.S.2d 274, 233 N.E.2d 289, rearg. denied 20 N.Y.2d 1040, 291 N.Y.S.2d 1025, 238 N.E.2d 507). The "fireman's rule" has traditionally been applied to police officers injured in the line of duty. "Like firefighters, police are the experts engaged, trained and compensated by the public to deal on its behalf with emergencies and hazards often created by negligence, and like firefighters they generally cannot recover damages for negligence in the very situations that create the occasion for their services" (Santangelo v. State of New York, supra, 71 N.Y.2d at 397, 526 N.Y.S.2d 812, 521 N.E.2d 770).

It is clear that, in the present case, plaintiff's first cause of action alleging negligence must be dismissed because plaintiff was at the fire scene in his official capacity as a deputy sheriff in charge of crowd and traffic control. Under these circumstances, defendants cannot be held liable for negligently creating the condition that caused the need for plaintiff's services and resulted in plaintiff's smoke inhalation-related injuries.

Plaintiff's second cause of action alleging negligent failure to warn must likewise be dismissed. Although an owner can be held liable for failure to warn a firefighter of a dangerous condition if the owner has reason to believe the firefighter is unaware of it (see, McGee v. Adams Paper & Twine Co., supra, 26 A.D.2d p. 191, 271 N.Y.S.2d 698; Jenkins v. 313-321 W. 37th St. Corp., 284 N.Y. 397, 401-402, 31 N.E.2d 503, rearg. denied 285 N.Y. 614, 33 N.E.2d 547; see also, Prosser and Keaton, Torts, § 61, at 429-432 [5th...