Duran v. City of Tucson

• Decision Date: 15 May 1973
• Docket Number: CA-CIV,No. 2,2
• Citation: 20 Ariz.App. 22,509 P.2d 1059
• Parties: Manuel H. DURAN and Esther Duran, husband and wife, Appellants, v. CITY OF TUCSON, a municipal corporation, the Tucson Fire Department, and L. F. Petersen, Fire Chief, Appellees. 1315.
• Court: Arizona Court of Appeals

Page 1059

509 P.2d 1059

20 Ariz.App. 22

Manuel H. DURAN and Esther Duran, husband and wife, Appellants, v. CITY OF TUCSON, a municipal corporation, the Tucson Fire Department, and L. F. Petersen, Fire Chief, Appellees.

No. 2 CA-CIV 1315.

Court of Appeals of Arizona, Division 2.

May 15, 1973.

Rehearing Denied June 19, 1973.

Review Denied July 17, 1973.

Richard L. Keefe, Pete Rubi and Barber, Haralson, Giles & Moore, P.C. by D. Dale Haralson, Tucson, for appellants.

Lesher & Scruggs, P.C. by John A. Wasley, Tucson, for appellees.

HOWARD, Judge.

In this appeal appellants claim that appellees should be liable for personal injuries Mr. Duran sustained as a result of an alleged negligent inspection by the City of Tucson Fire Department.

Since the court granted summary judgment in favor of appellees, we view the record in the light most favorable to appellants.

On February 18, 1971, Manuel Duran was working at his place of employment Dietz & Sons Body Shop in Tucson, Arizona. He had been employed for approximately three days. While he was removing gasoline from an automobile gas tank in the shop, the fumes were ignited causing a fire which seriously burned him. The fire was apparently caused when the flames from a gas heater located in the shop ignited the gasoline fumes.

John Dietz, owner and operator of the business, stated at deposition that the gas heater was located upon the floor in proximity to where Duran was working; that the City of Tucson Fire Department made periodic annual inspections on the premises; that the gas heater in question had been located approximately ten years in its position at the time of the fire; that the fire department was insistent that there could be no drains for gasoline upon the floor for safety precautions, so that if something did drain upon the floor it was either scrubbed up or dried out; that he relied upon the fire department as experts in detecting unsafe conditions from the standpoint of fire hazards; that it the City of Tucson Fire Department had advised him that the gas stove on the floor was not safe in an area where gas was to be drained, he would have taken he heater out; that on at least one occasion the fire department had advised him to take certain safety measures regarding trash accumulation prior to the fire in question, which measures he did take; that he assumed that if the fire department found anything of a dangerous or hazardous nature it would inform him of said condition or conditions; and that after the fire in question the fire department informed him that he could not have a gas heater in the paint room.

The essence of appellants' theory of negligence is that the City violated the City Fire Prevention Code by permitting an open flame heater in the work area, by failing to require Dietz & Sons to have suitable fire detecting devices such as extinguishers, and by permitting '. . . the improper ventilation of the stall where the plaintiff was working.'

The City of Tucson has adopted the 1965 edition, with some amendments, of the Uniform Fire Prevention Code. Under Section 1.3 of this Code, fire department personnel are empowered and authorized to enter any building or premises for the purpose of making inspections or investigations. Section 1.4 of the Code makes it the duty of her chief of the fire department to inspect or cause to be inspected all buildings and premises, except the interior of dwellings, as often as necessary for the purpose of ascertaining and causing to be corrected any conditions liable to cause fire, endanger life from fire, or any violations of the provisions or intent of the Code or of any other ordinance affecting the fire hazard.

Section 1.5 of the Uniform Fire Prevention Code provides that whenever members of the fire department making an inspection pursuant to Section 1.4 find in any building or upon any premises dangerous or hazardous conditions or materials which would constitute a fire hazard, they may order the dangerous conditions or materials removed or remedied. The ordinance adopting the Code also provides that any violations may be punishable by imprisonment in the city jail not to exceed six months or by fine not to exceed $300 or both.

Assuming for the purpose of the motion for summary judgment, the truth of appellants' allegations and statements in deposition, the issue narrows down to whether appellee fire department owed any duty to Mr. Duran. Abrogation of the doctrine of governmental immunity removes the defense of immunity, but does not create any new liability for a municipality. Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158 (1972). Even though the doctrine of governmental immunity has been abrogated, the plaintiff, in order to recover against the City must show the breach of a duty owed to him as an individual and not merely the breach of an obligation owed to the general public. Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969); Leger v. Kelley, 19 Conn.Sup. 167, 110 A.2d 635 (1954), aff'd. 142 Conn. 585, 116 A.2d 429 (1955); Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967); Hoffert v. Owatonna Inn Towne Motel, Inc., supra; Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y.S.2d 595, 204 N.E.2d 635 (1965).

When does the duty of a public officer extend to the general public only and not to any particular citizen? Massengill cites with approval the following from Leger v. Kelley, supra:

'. . . The failure of a public officer to perform a public duty can constitute an individual wrong only when some person can show that in the public duty was involved also a duty to himself as an individual, and that he has suffered a special and peculiar injury by reason of its nonperformance.'

We do not find this definition to be especially helpful. The appellate court in City of Tampa v. Davis, 226 So.2d 450 (Fla.App.1969), explains the Modlin case and the Florida rule as follows:

'We conclude, therefore, that in the light of Modlin, a municipality is liable in tort, under the doctrine of respondeat superior, when its agent or employee commits a tort in the performance, or by the nonperformance, of an executive (or administrative) duty within the scope of a governmental function, Only when such tort is committed against one with whom the agent or employee is in privity, or with whom he is dealing or is otherwise in contact in a direct transaction or confrontation.'

Although the Florida rule would be a basis for imposing liability upon a governmental body in Arizona, any limitation of liability in Arizona on the basis of the Florida rule would not be applicable in view of Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963). In the Stone case liability was imposed for failure to properly maintain the highway and remove old directional signs where a new highway and an old highway intersected, sected, and not upon any theory of direct contact by the employees of the state with the plaintiff or under any theory of privity.

Appellants claim that Massengill cannot be reconciled with the Stone case. We do not agree. Massengill was a suit against the county for the failure of one of its deputy sheriffs to arrest a drunk driver driving on the wrong side of the road. Massengill held that the duty to arrest was a public duty and not a duty owed to any particular...