Buren v. Midwest Industries, Inc.

• Decision Date: 07 February 1964
• Citation: 380 S.W.2d 96
• Parties: Mary L. BUREN, Administratrix of the Estate of Joseph K. Buren, Deceased, et al., Appellants, v. MIDWEST INDUSTRIES, INC., et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 96

380 S.W.2d 96

Mary L. BUREN, Administratrix of the Estate of Joseph K Buren, Deceased, et al., Appellants, v. MIDWEST INDUSTRIES, INC., et al., Appellees.

Court of Appeals of Kentucky.

Feb. 7, 1964.

Rehearing Denied June 26, 1964.

Raymond C. Stephenson, Ephriam K. Lawrence, Jr., Louisville, for appellants.

Norman A. Curtis, Robert L. Sloss, Louisville, for appellees.

WADDILL, Commissioner.

The central question in this case is whether failure of the owners of a building to comply with applicable fire safety ordinances (for example, ordinances requiring sprinkler systems, fire walls and stops, etc.) results in liability for the deaths of firemen killed while fighting a fire. It may be assumed for purposes of analysis that there was sufficient evidence for the jury to find that the deaths were proximately caused by the deceptive speed with which the fire suddenly enveloped the premises and that this would not have occurred if the building had been constructed and maintained in strict accordance with the law.

The various decisions on the subject are collected and discussed in 13 A.L.R. 584-595 and 86 A.L.R.2d 1205-1221. See also the analysis in 2 Harper & James, The Law of Torts, Sec. 27.14, pp. 1503-1505. Thus we need not attempt an exhaustive survey of our own. Suffice it to say that as a general rule the owner or occupant is not liable for having negligently created the condition necessitating the fireman's presence (that is, the fire itself), but may be liable for failure to warn of unusual or hidden hazards, for actively negligent conduct and, in some jurisdictions, for statutory violations 'creating undue risks of injury beyond those inevitably involved in fire fighting.' (Quotation taken from Krauth v. Geller, 31 N.J. 270, 157 A.2d 129, 131).

Non-liability of the owner or occupant frequently has been placed on the theory that the fireman is but a licensee, whether or not the fire department has been summoned. In this respect, however, we concur in the observation of the New Jersey Supreme Court that 'justice is not aided by appending an inappropriate label and then visiting consequences which flow from a status artifically imputed,' and are inclined to agree that he is neither a licensee nor invitee, but occupies a status sui generis. Krauth v. Geller, 31 N.J. 270, 157 A.2d 129. A better basis of non-liability is that 'it is the fireman's business to deal with that very hazard and hence, perhaps by analogy to the contractor engaged as an expert to remedy dangerous situations, he cannot complain of negligence in the creation of the very occasion for his engagement,' the precise risk which the public pays him to undertake. Id. But whatever may be the technical theory in which the underlying policy is clother, this is the prevailing result at common law, and it is not challenged in this case.

The first premise on which appellants rest their claim is that the intended benefits of the applicable fire safety ordinances of the City of Louisville extend to and include firemen who enter the premises in response to their duties. In other jurisdictions there is a difference of opinion on this question, depending sometimes on the terminology of the particular ordinances or statutes. The ordinances involved here do not specify for whose protection or benefit they are intended. It is our opinion that such laws are for the protection of the lives and property of all persons who in their rightful pursuits may be affected involuntarily by a fire in or spreading from the premises to which the laws apply. That compliance with fire safety ordinances will necessarily have the effect of reducing the hazards of fire-fighting, however, is no more than incidental to the primary objective of fire prevention and control. The fact is that in the performance of his official function the fireman is a part rather than an object of fire prevention and control.

It may be conceded that 'the hazard of fire, and loss of life fighting it,' are reasonably foreseeable consequences of a failure to exercise ordinary care in keeping the premises in a safe condition. See Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 86 A.L.R.2d 1184, 1194. The same is true with respect to the negligent creation of the fire in the first place, yet there is no liability to the fireman for that. We see no reasonable basis for a distinction unless, as appellants have argued, it is demanded by public policy. And even there we encounter the identical difficulty. Could it really be said that public policy is less solicitous toward the initial prevention of fire than it is toward the control of fire after it has begun? Surely not. We should expect public policy to be the same in each respect.

It has been said in some cases that a fireman entering the premises has the right to assume compliance with applicable safety ordinances. See Maloney v. Hearst Hotels Corp., 274 N.Y. 106, 8 N.E2d 296, 297, in which a fireman was killed by an explosion of volatile substances illegally kept on the premises. See also cases cited in Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 86 A.L.R.2d 1184, 1195. Insofar as these decisions reflect the principle that a fireman is entitled to assume compliance with respect to unguarded elevator shafts, open stair wells, exposed wires, and similar hazards to a reasonably safe access to and use of the premises in the manner in which they are ordinarily expected to be used, we have no quarrel with them. (See discussion of New York rule, 86 A.L.R.2d 1216.) And the presence of explosives may predicate liability on the basis either of an unusual hidden hazard or of continuing 'active' negligence, as the particular facts warrant. (See 13 A.L.R. 644.) We do not believe, however, that a law violation which has no direct effect except to permit the more rapid spread of a fire than would otherwise have been the case is analogous. Hence we cannot follow Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 86 A.L.R.2d 1184.

It was brought out in the...