Commerce & Industry Ins. Co. v. City of Toledo

• Decision Date: 23 August 1989
• Docket Number: No. 88-577,88-577
• Citation: 543 N.E.2d 1188,45 Ohio St.3d 96
• Court: Ohio Supreme Court
• Parties: COMMERCE & INDUSTRY INSURANCE COMPANY, Appellee, v. CITY OF TOLEDO et al., Appellants; Able Warehouse & Distributing Company, Appellee.

Page 96

45 Ohio St.3d 96

543 N.E.2d 1188

COMMERCE & INDUSTRY INSURANCE COMPANY, Appellee, v. CITY OF TOLEDO et al., Appellants Able Warehouse & Distributing Company, Appellee.

No. 88-577.

Supreme Court of Ohio.

Submitted April 6, 1989.

Decided Aug. 23, 1989.

Syllabus by the Court

1. When a duty which the law imposes upon public officials is a duty to the public, a failure to perform it, or an inadequate or erroneous performance generally results in a public and not an individual injury. (Sawicki v. Ottawa Hills [1988], 37 Ohio St.3d 222, 525 N.E.2d 468, paragraph two of the syllabus, followed.)

2. The applicability of the public duty rule does not depend upon whether the allegations against the municipality may be characterized as nonfeasance or as misfeasance.

3. Under the "special relationship" exception to the public duty rule, the assumption of an affirmative duty on a municipality's part requires that the municipality do more than adhere to its statutory duty.

4. In the absence of the assumption of an affirmative duty, a municipality will not be liable in negligence for the acts or omissions of employees when fighting fires.

On Sunday, July 7, 1985, a fire broke out at the Willis Day Warehouse in Toledo. At 6:02 p.m. the Toledo Division of Fire ("fire department") was notified, and the department in turn notified Columbia Gas of Ohio, Inc. ("Columbia Gas"). Pursuant to the request of the fire department, Columbia Gas sent employees to the scene to shut off gas service to the warehouse.

The fire department later discovered that a gas-driven pump provided water pressure for the warehouse's fire protection system, which included internal sprinklers. With the gas shut off the system would not work. About ninety minutes after the gas had been shut off, the fire department called Columbia Gas back to restore service to the pump.

By approximately 11:30 that night, the fire appeared to be under control. Lane Drug Company ("Lane") was a lessee of space in the warehouse. Lane's insurance carrier, appellee herein, Commerce & Industry Insurance Company ("Commerce & Industry"), claims that the fire department told Lane's employees they could safely leave Lane's goods in the warehouse, shut down an internal sprinkler system in Lane's portion of the warehouse, and go home. Within a few hours, however, the fire began to spread, eventually destroying most of the warehouse complex and the materials stored within, including the property of Lane.

Commerce & Industry, as subrogee of Lane, brought a negligence suit against the city of Toledo (and its fire department), Columbia Gas, and Able Warehouse & Distributing Company, Inc. These three defendants cross-claimed against one another on theories of indemnity and contribution. In addition, Toledo filed a third-party complaint against Willis Day Properties, Inc., the owner of the warehouse.

Toledo and its fire department moved to dismiss the claims against them. The trial court granted the motion, relying, inter alia, on the public duty rule. Although Toledo had styled its motion as a Civ.R. 41 motion, the trial judge decided to treat the motion as if made pursuant to Civ.R. 12(B)(6), thus limiting the basis of his holding to the pleadings and briefs submitted by the parties.

Columbia Gas moved for summary judgment. The trial court sustained the motion, dismissing all claims against Columbia Gas.

The court of appeals reversed the trial court's ruling as to both Toledo and Columbia Gas. Toledo and Columbia Gas appealed. The cause is before this court upon the allowance of motions to certify the record.

Harland Britz, Toledo, Denenberg, Tuffley, Bocan, Jamieson, Black, Hopkins & Ewald, John L. Hopkins, Julius Denenberg, George F. Curran III, John A. Lawson and Dana L. Ramsay, Southfield, Mich., for appellee Commerce & Industry Ins. Co.

J. Michael Vassar and Joseph P. Dawson, Toledo, for appellee Able Warehouse & Distributing Co.

James N. Turner, Toledo, for appellant City of Toledo.

Thomas E. Morgan, Roger C. Post and James R. Berendsen, Columbus, for appellant Columbia Gas of Ohio, Inc.

Calfee, Halter & Griswold, John E. Gotherman and Stanley J. Dobrowski, Cleveland, urging reversal for amicus curiae, Ohio Mun. League.

HERBERT R. BROWN, Justice.

This case presents two questions. The first is whether Columbia Gas is entitled to summary judgment. The second is whether Toledo is protected from liability by either the public duty rule or former R.C. 701.02(B). We answer the first query in the affirmative and in response to the second query we find that Toledo was partially but not totally protected by the public duty rule.

I

Appellees claim that Columbia Gas was negligent in (1) failing to investigate whether shutting off gas service would jeopardize the fire protection system, (2) failing to warn representatives of the fire department or Lane that the fire protection system was disabled when gas service was shut off, and (3) failing to promptly restore service to the fire protection system after being called back to the warehouse.

Columbia Gas maintains that it was present at the scene of the fire only to respond to the request of the fire department to shut off gas service. Columbia Gas argues that its primary duty was to obey the orders of the fire department. It fulfilled that duty by shutting off gas service.

Columbia Gas makes a strong argument. Pursuant to statute, the fire department of a municipal corporation has the primary duty to protect lives and property in case of fire. R.C. 737.11. The Ohio Administrative Code and the Toledo Municipal Code place the fire chief or his authorized representative in charge at the scene of a fire. Ohio Adm.Code 1301:7-1-03(I); Toledo Municipal Code Section 1511:03, F-102.9. One who knowingly hampers " * * * the lawful operations of any * * * fireman * * * engaged in his duties at the scene of a fire * * *" is subject to criminal penalties. R.C. 2917.13(A)(1). Moreover, the inspection and approval of fire prevention systems are the responsibilities of the fire department. Ohio Adm.Code 1301:7-7-04(A)(3); Toledo Municipal Code Section 1511.03, F-103 and F-104. Generally speaking, a gas company is not required to know what gas appliances its customers have installed or are using. Miller v. Gas Service Co. (1943), 155 Kan. 829, 130 P.2d 547; see, also, Transportation Ins. Co. v. Clark (1962), 116 Ohio App. 511, 22 O.O.2d 346, 189 N.E.2d 166 (electric company has no obligation to inspect wiring and appliances owned by consumer).

However, Columbia Gas mischaracterizes the scope of its duty. Duty, as used in Ohio tort law, refers to the relationship between the plaintiff and the defendant from which arises an obligation on the part of the defendant to exercise due care toward the plaintiff. Baltimore & Ohio Southwestern Ry. Co. v. Cox (1902), 66 Ohio St. 276, 64 N.E. 119. The existence of duty largely depends on the foreseeability of injury. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 180, 472 N.E.2d 707, 710; Gedeon v. East Ohio Gas Co. (1934), 128 Ohio St. 335, 190 N.E. 924. The test for foreseeability is whether a reasonably prudent person, under the same or similar circumstances as the defendant, should have anticipated that injury to the plaintiff or to those in like situations is the probable result of the performance or nonperformance of an act. Id.

Once a common-law duty is found to exist, the fulfillment of that duty is not defined by or limited to a particular course of action. Rather, the defendant is required to exercise that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285, 21 O.O.3d 177, 179, 423 N.E.2d 467, 470; Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 127, 47 O.O.2d 282, 283, 247 N.E.2d 732, 734; Gedeon, supra, 128 Ohio St. at 338, 190 N.E. at 925; Payne v. Vance (1921), 103 Ohio St. 59, 67, 133 N.E. 85, 87; Bellefontaine Ry. Co. v. Snyder (1874), 24 Ohio St. 670. Whether a defendant properly discharged his duty of care is normally a question for the jury. Gedeon, supra, 128 Ohio St. at 339, 190 N.E. at 926; Payne, supra; Blancke v. New York Central R.R. Co. (1921), 103 Ohio St. 178, 133 N.E. 484, paragraph three of the syllabus.

A duty running from Columbia Gas to the plaintiff's insured arose once the company was aware or should have been aware that its failure to act could result in harm to the insured. This occurred when Columbia Gas responded to the fire department's request to shut off gas service to the warehouse. ¹ At that point, Columbia Gas was obligated to exercise due care under all the circumstances. This case does not turn on the existence of duty. Rather the question is whether Columbia exercised due care. Obedience to fire department instructions ordinarily will be all that due care requires when a gas company responds to a request to shut off gas service at the scene of a fire. However, depending on the circumstances, discharge of the company's duty could require warning the fire department of hazards created by shutting off gas service.

In this case the claim against Columbia Gas is premised in part on conduct falling outside the scope of fire department orders: namely, a failure to warn the fire department that the fire protection system was disabled by the discontinuance of gas service. We must review the pleadings, affidavits and exhibits to see if there is sufficient support for this claim to preclude Columbia Gas from receiving a summary judgment.

Pursuant to a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in a light most favorable to the opposing party. Wills v. Frank Hoover Supply (1986), 26 Ohio St.3d 186, 188, 26 OBR 160, 161, 497 N.E.2d 1118, 1120, citing Civ.R. 56(C) and Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364...