Carpenter v. O'Day

• Decision Date: 06 January 1987
• Citation: 562 A.2d 595
• Parties: Michelle B. CARPENTER and David G. Carpenter, Sr., Plaintiffs, v. Ralph O'DAY, Individually and as Guardian Ad Litem of Brian O'Day, a minor, Trina Russell, Individually and as Guardian Ad Litem of Charles D. Russell, a minor, and Windjammer II, Inc., a Delaware corporation, Defendants. . Submitted:
• Court: Delaware Superior Court

Page 595

562 A.2d 595

Michelle B. CARPENTER and David G. Carpenter, Sr., Plaintiffs, v. Ralph O'DAY, Individually and as Guardian Ad Litem of Brian O'Day, a minor, Trina Russell, Individually and as Guardian Ad Litem of Charles D. Russell, a minor, and Windjammer II Inc., a Delaware corporation, Defendants.

Superior Court of Delaware,

New Castle County.

Submitted: Jan. 6, 1987.

Decided: July 18, 1988.

Eliot Alazraki, Wilmington, for plaintiffs.

John A. Elzufon, and Edward A. Tarlov, of Elzufon & Associates, Wilmington, for defendant, Windjammer, II, Inc.

OPINION

POPPITI, Judge.

This is an action by Michelle B. Carpenter ("Carpenter") and her husband, David G. Carpenter, Sr., to recover for personal injuries sustained by Carpenter in the course of fighting a fire on October 26, 1982 at the Windjammer II Restaurant located in New Castle, Delaware. At the time of the fire, Carpenter was a volunteer firefighter with the Wilmington Manor Volunteer Fire Company. One of the defendants, Windjammer II, Inc. ("Windjammer"), now moves for summary judgment, urging this Court to adopt the "Firemen's Rule," which bars firefighters from recovering from private parties for injuries sustained in the course of carrying out their professional duties. For the reasons that follow, I adopt the Firemen's Rule, and grant defendant's motion for summary judgment.

The Windjammer restaurant ceased operations in July, 1982, and was vacant from July 18, 1982 to October 26, 1982, the date of the fire. The fire was intentionally set by defendants Brian O'Day and Charles D Russell. The defendant-arsonists gained entry to the restaurant through a side door which was left open as the result of a burglary which had occurred one or two days before October 26th. Windjammer had no notice of the burglary or of any threats of fire or vandalism prior to the fire.

The Wilmington Manor Volunteer Fire Company was dispatched to the restaurant to fight the fire. Carpenter was one of the firefighters who responded to the fire. Upon arriving at the scene of the fire, Carpenter put on a mask and entered the restaurant. Pursuant to standard procedure, Carpenter was ordered to "rip" walls down to prevent the fire from spreading. This is a task she frequently performed. Carpenter squeezed in between two walls and began to push and pull at the plywood wall in front of her. In doing so, she sustained an injury to her back. As a result of that injury, she has received workmen's compensation benefits. ¹

Prior to the Windjammer restaurant fire, Carpenter had been a volunteer firefighter since March, 1977, and had responded to at least 200 fires a year. Carpenter testified in deposition that she was aware of the dangers involved in fighting a fire, indicating that it was second nature for her to enter a burning building to extinguish a fire, and that the risk of injury is the "farthest thing from her mind" when fighting a fire.

The facts reveal that five months prior to the October 26 fire, there had been one small fire at the Windjammer. It is undisputed that, at the time of the fire, the building was adequately equipped with 12 to 14 fire extinguishers distributed throughout the building, that it was free of trash and other debris which might act as fuel for a fire, and that all doors had been locked and secured.

Traditionally, the Fireman's Rule provided that an owner or occupier of land is not liable to a firefighter for injuries sustained during the discharge of the duties for which the fireman was called to the property. Rishel v. Eastern Airlines, Inc., Fla.App., 466 So.2d 1136, 1138 (1985). See 17 Words & Phrases, Fireman's Rule 20-21 (Supp.1987-1988). Rather, the injured firefighter is limited to statutory remedies such as workmen's compensation. Flowers v. Sting Security, 62 Md.App., 116, 488 A.2d 523, 527-28 (1985), aff'd, Flowers v. Rock Creek Terrace, 308 Md. 432, 520 A.2d 361 (1987). While jurisdictions differ as to the formulation of the rule, the exceptions to the rule, and the rationale relied upon to support it, the rule, in some form, has been adopted in nearly every jurisdiction, see, e.g., Kreski v. Modern Wholesale Electric Supply, 429 Mich. 347, 415 N.W.2d 178 (1987); England v. Tasker, 129 N.H. 467, 529 A.2d 938 (1987); Ingram v. Peachtree South, Ltd., 182 Ga.App. 367, 355 S.E.2d 717 (1987), and it is almost universally accepted that no liability to a fireman is imposed upon those who negligently cause a fire. Mueller, Liability to the Public Servant--A Divided Approach to Duty, 68 Ill.B.J. 333, 3350336 (1980); Note, Landowners' Negligence Liability to Persons Entering as a Matter of Right or Under a Privilege of Private Necessity, 19 Vand.L.Rev. 407, 419, n. 56 (1966). The rule is based principally on three legal theories: (1) The firefighters common law classification as a licensee, (2) assumption of the risk and (3) public policy concerns. In light of the importance of my decision to adopt the rule for this jurisdiction, each basis in support of the rule will be addressed seriatum.

I. Common Law Land Entrant Classifications--Premises Liability

Traditionally, courts have applied the Fireman's Rule by utilizing the theory of common law premises liability. That is, the Court first determines the firefighter's "legally defined [common law] status upon entering the land." Walker & Dunavant, Liability of a Possessor of Premises to Public Officials for Physical Harm Caused by a Condition of the Premises--A Rule for Virginia, 17 U.Rich.L.Rev. 467, 473 (1983). The landowner's duty is then established depending upon whether the firefighter is determined by the Court to be a business invitee or a licensee. See 62 Am.Jur.2d, Premises Liability §§ 102, 104 (1972 & Supp.1987).

Firefighters traditionally have been held to be mere licensees when they enter upon the land of an owner or occupier in order to perform their duties. ² This is true even if the occupier has summoned the fireman to protect himself or his property. 5 F. Harper, F. James & O. Gray, The Law of Torts § 27.14, at 259 (2d ed. 1986) (citations omitted). The common explanation for this resulting classification is that because firemen are likely to enter at unforeseeable times, upon unusual parts of the premises, and under circumstances of emergency, reasonable care in preparing for the visit cannot be expected, and a duty to make the premises reasonably safe for them at all times would constitute a severe burden upon the landowner. Shypulski v. Waldorf Paper Products Company, 232 Minn. 394, 45 N.W.2d 549 (1951); Boneau v. Swift & Co., Mo.App., 66 S.W.2d 172 (1934); F. Bohlen, Studies in the Law of Torts 193-194 (1926). See also Note, Torts: Landowner's Common Law and Statutory Liability to Firemen for Negligent Maintenance of Premises: Dini v. Naiditch, 47 Cornell L.Q. 119, 121 (1961).

As licensees who enter under a privilege conferred by law, landowners or occupiers would therefore owe firefighters no duty of reasonable care to make the premises safe. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 61, at 429-430 (5th ed. 1984) ("W. Keeton"). Although the occupier is still required to refrain from injuring the firefighter either intentionally, or by willful or wanton misconduct, ³ and he must exercise reasonable care for the firefighter's protection in carrying on his duties, and give warning of hidden dangers of which he knows, ⁴ the occupier generally has no obligation to inspect or prepare the premises for the firefighter. W. Keeton, § 61, at 430; Note, Torts--Negligence--Duty of Care Owed Firemen, 47 Iowa L.Rev. 200, 201-202 (1961). See generally Bohlen, The Duty of a Landowner Towards Those Entering His Premises of Their Own Right, 69 U.Pa.L.Rev. 142 (1921).

A great deal of dissatisfaction has been voiced by both courts and commentators regarding the fictional approach of classifying a firefighter as a "licensee" in order to support the application of the Fireman's Rule. See, e.g., 5 Harper, James & Gray, § 27.14, at 259-270; Comment, Torts--Are Firemen and Policemen Licensees or Invitees? 35 Mich.L.Rev. 1157, 1159-1163 (1937); Note, Torts--Landowner's Duty to Firemen, 15 Ala.L.Rev. 313, 320-321 (1962). Many courts have therefore taken the view that, in the absence of statute, a firefighter is better characterized as an invitee, rather than a licensee, when he enters upon premises in the discharge of his duty. ⁵ These courts reason that a firefighter who comes to extinguish a blaze can fairly be said to confer a pecuniary benefit upon the landowner, and that if an invitation is legally required, it is certainly present when the firefighter comes in response to a call for help. W. Prosser, § 61, at 431. (Citations omitted). Other courts have rejected both the licensee and invitee classifications, and have stated that a fireman is sui generis for purposes of applying the rule. ⁶

Although the Delaware Supreme Court has generally refused to abandon the common law premises liability categories as determinative of a landowner's duty to a land entrant on the theory that to do so would be to engage in "impermissible judicial legislation," see Bailey v. Pennington, Del.Supr., 406 A.2d 44, 48 (1979), app. dism'd, 444 U.S. 1061, 100 S.Ct. 1000, 62 L.Ed.2d 744, I am satisfied that these classifications are not appropriate for a firefighter, since he enters a premises as a matter of right pursuant to his public employment, and not as a member of one of these rigidly defined classes. See Moss, An Examination of the California Fireman's Rule, 6 Pac.L.J. 660, 660-661 (1975); Note, Negligence--Acts or Omissions Constituting Negligence--Whether Landowners and Occupiers Owe Firemen and Policemen the Duty of Reasonable Care, 38 Chi.Kent L.Rev. 75, 76 (1961).

I am therefore not persuaded to manipulate and strain these classifications in order to accommodate firefighters. ⁷ It is from the rejection of this land entrant classification scheme that other co...