Clark v. Corby, 75--149

• Decision Date: 18 January 1977
• Docket Number: No. 75--149,75--149
• Citation: 75 Wis.2d 292,249 N.W.2d 567
• Parties: Eugene D. CLARK and Betty J. Clark, his wife, Respondents, v. Patrick CORBY et al., Appellants.
• Court: Wisconsin Supreme Court

Page 567

249 N.W.2d 567

75 Wis.2d 292

Eugene D. CLARK and Betty J. Clark, his wife, Respondents, v. Patrick CORBY et al., Appellants.

No. 75--149.

Supreme Court of Wisconsin.

Argued Nov. 3, 1976.

Decided Jan. 18, 1977.

This is an appeal from a trial court order overruling the demurrer of defendants Patrick Corby, Robert Corby, Lorraine Corby and Classified Insurance Corporation, a domestic corporation, to the complaint of plaintiffs Eugene D. Clark and Betty J. Clark, his wife. The complaint alleges that plaintiff Eugene D. Clark is a lieutenant in the Green Bay Fire Department, and due to alleged negligence and carelessness on the part of the defendants, said plaintiff sustained injuries while serving as a fire fighter in connection with a fire at the Corby residence on December 31, 1973.

The plaintiffs' complaint alleges the following: On December 31, 1973, defendant Patrick Corby, minor son of defendants Robert and Lorraine Corby, was in the basement utility room of the Corby residence and was draining gasoline from the tank of a motorcycle, using a tin can and pouring the contents of the can into the basement sewer. After three or four cans had been poured into the sewer, a fire broke out. Whereupon, Patrick Corby called the fire department for assistance. When the department arrived, he talked to the fire fighters before they entered the premises. The basement contained carpeting, pillows, paneling, acoustical tile, bedding and paint thinner which caused a hot fire with concomitant thick black smoke.

The plaintiffs' complaint further alleges that defendants Robert Corby and Lorraine Corby built a bedroom in the basement without obtaining the requisite building permit. Such construction was allegedly not in conformity with the building code because it did not contain an exit to the outside.

Defendants demurred to plaintiff's complaint on the ground that it did not state a cause of action. The trial court overruled the demurrer. Defendants appeal the order overruling that demurrer.

Alvin A. Stack, Milwaukee (argued), Simarski, Goodrich, Brennan & Stack, Milwaukee, on the brief, for appellants.

Gregory B. Conway, Green Bay (argued), Cohen, Grant, Liebmann & Conway, Ltd., Green Bay, on the brief, for respondents.

ROBERT W. HANSEN, Justice.

In their brief, defendants-appellants phrase the issues raised on appeal as follows:

1. Whether the complaint of a fireman, plaintiff-respondent, alleging negligence against a sixteen-year-old boy for starting a fire and then failing to warn states facts suffient to constitute a cause of action against appellants.

2. Whether the complaint of a fireman, plaintiff-respondent, alleging negligence because of a violation of a building code by the owners of the land states facts sufficient to constitute a cause of action against the owners of the land.

In their brief on appeal, plaintiffs-respondents see a single issue raised: Whether the complaint, under any view of the facts alleged, states a cause of action. We see the two issues raised, but note that the first of the two involves both (1) negligence in starting a fire, and (2) a failure to warn. So we will discuss in turn a claim of breach of duty owed in (1) negligently starting a fire, (2) failing to warn of hazards present, and (3) violating a building code provision.

(1) STARTING THE FIRE.

As a first cause of action against defendant Patrick Corby only, the plaintiffs' complaint alleges that Patrick's 'negligence and carelessness . . . was the substantial factor in causing the fire and a substantil factor in causing the resultant injuries.' Thus, plaintiffs seek to recover for the negligence of Patrick Corby in starting the fire.

However, that claim of negligence is negatived by the holding of this court in Hass v. Chicago & North Western Ry. Co. ¹ In that case it was held that a fire fighter could not recover '. . . against a tortfeasor whose only negligence is in starting a fire and failing to curtail its spread.' ² The decision to bar such fire fighter from recovery against one who negligently starts a fire was based on public policy grounds. ³

It is true that plaintiffs in their first cause of action allege that Patrick Corby was negligent per se in pouring gasoline into a sanitary sewer contrary to state and local plumbing codes. But negligence was not the decisive factor in Hass ⁴--public policy considerations were. Even assuming negligence, we relied on those policy considerations in denying recovery to a fire fighter against one who has negligently started a fire. It follows that, as to plaintiffs' first cause of action only, the demurrer of defendants should have been sustained. It does not state a cause of action.

(2) DUTY TO WARN.

As a second cause of action, also asserted against defendant Patrick Corby, plaintiffs claim a breach of a duty to warn the fire fighters on the scene of conditions in the basement constituting 'a trap and a snare as to fire fighter Gene Clark and were hidden dangers.' Hass did not reach the question whethr or not there exists such duty of landowner or occupier to warn firemen called to a fire of special hazards, stating:

'We do not herein decide the obligation of a landowner to a firefighter for conditions of the premises which aggravate the hazard, nor do we discuss possible liability that may arise under circumstances where a landowner fails to warn firefighters of special hazards known to him but unknown to the firefighter. Such determination must abide an appeal which presents facts that are totally absent in the instant case.' ⁵

What was not before the court in Hass is before us now. Is there a duty on the part of a landowner or occupier to warn a fire fighter 'of special hazards known to him but unknown to the firefighter?' In answering that question, we need not discuss whethr or not a fireman responding to an alarm is an invitee or licensee on the premises. That distinction has been abolished in this state. ⁶

We must now determine and define the duty owed by a landowner to a fire fighter injured on the premises fighting a fire, due to the presence of special hazards. We have examined decisions in other jurisdictions as to what duty, if any, is owed to a fire fighter on the premises to fight a fire. We find such decisions not in agreement on rationale or result. However we note that even those decisions stressing the expertise of trained firemen in knowing and being able to evaluate dangers presented often make exception for the hidden hazard known to the landowner and not known to the fire fighter. The Kentucky case, quoted extensively in appellants' brief, states fire fighters are equally cognizant of and better able to evaluate unpredictable dangers involved '(e) xcept for unusual hazards known to the property owner or occupant but unknown to him . . ..' ⁷ We have located and examined cases where courts have concluded '. . . that firemen are entitled to a warning of unusual hazards.' ⁸

We find the modern trend and the better rule to be that owners and occupiers of land owe a duty to firemen to warn them of hidden perils, where the owner or occupant knows of the peril and has the opportunity to give warning of it. Accordingly, we hold there is in Wisconsin a duty on the part of a property owner or occupier to warn a fire fighter of hidden hazards known to the owner but not known to the fireman. We make clear that to trigger this duty to warn there must coexist the following four prongs: (1) A hidden hazard--a concealed danger that foreseeably created an unreasonable risk to others; (2) which hidden hazard or danger is known to the landowner; (3) which hidden hazard or danger is not known and not observable by the fire fighter; and (4) existence of a clear opportunity for the landowner to give warning of the hidden hazard. Testing plaintiffs' second cause of action against this fourfold requirement, we find that it sufficiently alleges the four elements. We thus sustain the trial court's overruling of demurrer to such second cause of action.

While public policy considerations are involved, as they were in Hass, we do not find them requiring us to expose fire fighters on the scene to the added risk of encountering hidden hazards, known to the landowner and not known to the fire fighter where there was an opportunity presented for such landowner to warn the fire fighter of such hidden hazard.

(3) VIOLATION OF CODE.

As a third cause of action, plaintiffs allege failure to warn and breach of a duty owed by defendants Robert and Lorraine Corby by reason of an alleged violation of a safety ordinance by them. The complaint alleges that sec. 31.07 of the Green Bay municipal housing code requires an opening for escape in basement bedrooms '. . . which opening should have led directly to the outside, and which opening should have been equal to 10% of the floor space in said room, but in any case not smaller than 12 square feet.'

The complaint alleges these two defendants were negligent per se because: they built a basement bedroom without securing a building permit therefor, the basement bedroom was constructed without opening to the outside, and there were violations of the local plumbing code. Plaintiffs further allege that defendants' failure to comply with these code requirements '. . . was a substantial factor in causing fire fighter Eugene D. Clark, to become trapped in the basement . . . and a substantial factor in causing (his) injuries.'

This claim of breach of duty owed requires that the ordinances allegedly violated have been enacted to protect a fire fighter in the performance of his fire fighting duties. In this state the protection of a safety statute or ordinance is extended only to those whom the enactment was intended to protect. ⁹ Even where it is conceded that the statute or ordinance is a safety requirement, the question that must be decided is whether 'the purpose of the ordinance was to protect the party seeking to invoke...