Bycom Corp. v. White

• Decision Date: 23 June 1988
• Docket Number: No. 76161,76161
• Citation: 187 Ga.App. 759,371 S.E.2d 233
• Parties: BYCOM CORPORATION v. WHITE et al.
• Court: Georgia Court of Appeals

Page 233

371 S.E.2d 233

187 Ga.App. 759

BYCOM CORPORATION v. WHITE et al.

No. 76161.

Court of Appeals of Georgia.

June 23, 1988.

Rehearing Denied July 8, 1988.

Certiorari Denied Sept. 16, 1988.

R. Chris Irwin, Kathleen M. Pacious, Atlanta, for appellant.

Andrew M. Scherffius, Edward R. Still, Atlanta, Charles B. Merrill, Jr., Swainsboro, for appellees.

BENHAM, Judge.

The basic subject of this appeal is the scope of the Fireman's Rule; specifically, whether it applies in a case in which the defendant is not the owner or occupier of the premises where the injury to the plaintiff occurred. The appellees are a husband and wife, the husband a DeKalb County fireman who was seriously burned by exploding natural gas. Appellant is the corporation whose agents were allegedly negligent in rupturing a natural gas pipeline and in failing to indicate the location of the leak to the firemen who responded to a call that a gas leak had occurred. We granted appellant's application for an interlocutory appeal to review the trial court's denial of that portion of appellant's motion for summary judgment based on the Fireman's Rule.

The facts of this case are essentially undisputed. Appellant's agents ruptured a natural gas pipeline. Although they reported the occurrence to the Atlanta Gas Light Company, they did not report it to governmental authorities. However, the principal of a nearby school reported the leak after being told of it by a parent. A fire truck was dispatched to deal with the leak, but the location given it was that of the school, several blocks from the site of the actual leak. A school crossing guard pointed in the direction of the leak when the truck arrived at the location given it, and the truck continued on in the indicated direction. The truck stopped at the site of the leak, and White debarked from the truck, apparently believing the leak to be on an adjoining cul-de-sac. In fact, the leak was beneath the truck and the gas caught fire shortly after White left the truck.

1. The Fireman's Rule was recognized in Georgia in Ingram v. Peachtree South, 182 Ga.App. 367, 368 (355 S.E.2d 717) (1987): "Basically, the principle is that

while a fireman may recover for negligence independent of the fire, a landowner is not liable for negligence in causing the fire. As an oft-cited case holds, one 'cannot complain of negligence in the creation of the very occasion for his engagement.' [Cit.]" That rule, stated in terms of a landowner's liability, was perfectly adequate for that case since the fire there occurred on premises owned by the defendant. In the present case, however, the alleged negligence and the injury occurred off the premises of the alleged tortfeasor.

"Because we are bound by the case law set out in [Ingram ] as to on-premises injuries, and because it would create a dichotomy to establish policies which deny recovery to a fireman injured on-premises but allow recovery to a fireman injured off-premises, the fireman's rule must be applied to off-premises injuries sustained by firemen acting in their professional capacity. Just as the fireman who as a licensee and barring actual wrongful acts by the landowner 'takes all risks as to the safe condition of the premises upon which he enters,' [cit.], so the fireman incurs the risks inherent in the situation when he undertakes an off-premises [emergency call] in his official capacity." Koehn v. Devereaux, 495 N.E.2d 211, 215 (Ind.App. 3 Dist.1986). It is necessary, therefore, to examine two alternative bases which have been used as support for the Fireman's Rule: assumption of risk and public policy.

Both of those rationales are cogently explained in a 1985 decision from the Court of Special Appeals of Maryland, Flowers v. Sting Security, 62 Md.App. 116, 488 A.2d 523, 532 (1985): "The major modern justification for the Fireman's Rule is based upon the notion of assumption of risk ... Within the context of serving as the primary basis for the Fireman's Rule, the notion of assumption of risk is used in a very special sense. It is necessary to distinguish between a 'primary' assumption of risk, which arises out of the special relationship between the firefighter and the public, and a 'secondary' assumption of risk, which is an affirmative defense on a case-by-case basis and which closely resembles contributory negligence ... Perhaps the leading statement on the Fireman's Rule generally and on the special sense in which the notion of 'assumption of risk' is used specifically, was that by Chief Justice Joseph Weintraub in Krauth v. Geller, 31 N.J. 270, 157 A.2d 129, 130-131 (1960): 'The rationale for the prevailing rule is sometimes stated in terms of "assumption of risk," used doubtless in the so-called "primary" sense of the term and meaning that the defendant did not breach a duty owed, rather than that the fireman was guilty of contributory fault in responding to his public duty.' ... A fireman does not assume a risk in the secondary sense, hazard by hazard and fire by fire, and only when he lacks a safer alternative, but in the broad, primary sense as an inherent incident of his occupation... Closely intertwined with the primary assumption of risk rationale, and strongly supporting it, but with an independent content of its own is the public policy rationale. That rationale, in a nutshell [has been] articulated [as follows]: 'A public safety officer cannot base a tort claim upon damage caused by the very risk that he is paid to encounter and with which he is trained to cope.... Such officers, in accepting the salary and fringe benefits offered for the job, assume all normal risks inherent in the employment as a matter of law and thus may not recover from one who negligently creates such risk.' ... The Fireman's Rule, almost universally accepted and nowhere rejected constitutionally, stands for the principle that societal responsibility rather than possible tort recovery is the better, surer, and fairer recourse for a fireman or policeman injured in the line of duty... The most...