Flowers v. Sting Sec., Inc., 622

CourtCourt of Special Appeals of Maryland
Writing for the CourtMOYLAN; Bowen; Bowen's
Citation488 A.2d 523,62 Md.App. 116
PartiesDavid FLOWERS v. STING SECURITY, INC., et al. ,
Docket NumberNo. 622,622
Decision Date01 September 1984

Karl G. Feissner, Langley Park, and John B. Walsh, Jr., Rockville, for appellant.

Bernard J. Harig, Rockville (MacLeay, Lynch, Bernhard & Gregg, Rockville, on brief), for appellee, Westinghouse Elec. Corp.

Robert L. Ferguson, Jr., Baltimore (Allen, Thieblot & Alexander, Baltimore, on brief), for appellees, Sting Sec., Inc. and Larry W. Cline.

Argued before MOYLAN, WEANT and GARRITY, JJ.

MOYLAN, Judge.

In the course of fighting a fire at the Rock Creek Terrace Apartments in Rockville on October 28, 1981, the appellant, David Flowers, a volunteer firefighter with the Kensington Volunteer Fire Department, fell 12 stories down an open elevator shaft. As a result of the fall, he suffered serious permanent injuries. On October 14, 1983, appellant filed suit, seeking recovery against ten different defendants, three of whom are appellees on this appeal.

The appellees before us are Sting Security, Inc. (Sting), a service which provided security at the apartment building; Larry W. Cline, an employee of Sting, who was sued in his individual capacity; and Westinghouse Electric Corporation (Westinghouse), the manufacturer of the elevator at the apartment building.

Westinghouse demurred to appellant's pleading. A hearing was held on January 27, 1984, at which the demurrer was sustained with leave to amend. An amended declaration concerning Westinghouse was filed by the appellant on February 21, 1984. On January 26, 1984, appellees Sting and Cline demurred to the original pleading and a hearing was scheduled for April 4, 1984. In response to the amended declaration of appellant, Westinghouse filed a second demurrer on March 12, 1984, and this matter was also set for the April 4 hearing. At that hearing, presided over by Judge Perry G. Bowen, Jr. in the Circuit Court for Prince George's County, both demurrers were sustained without leave to amend based upon the court's application of the "Fireman's Rule." In sustaining the demurrer as to Sting and Cline, Judge Bowen reasoned:

"The Court: And the basis for the claim is that these persons negligently performed their duties to the owner, so that persons or--persons or persons unknown were able to start a fire on the premises or set a fire, or may have set a fire.

Once again, we think--we have some difficulty with that under any theory of law, but clearly, it falls precisely within the Fire Fighter's Rule. Fires are what firemen are called to confront, and whether they're negligently set, intentionally set or acts of God does not make any difference. A fire is a fire. To say that someone had a duty to prevent the fire from occurring, and therefore, the fireman is entitled to claim directly against them, we think doesn't fit into any pattern of law that we're familiar with, and in any event, falls squarely within the Rule. We, therefore, sustain the demurrer of these defendants without leave to amend."

Judge Bowen also applied the Fireman's Rule in sustaining the demurrer of Westinghouse. From these rulings, appellant brings this appeal.

The appellant attacks the lower court's application of the Fireman's Rule on essentially three grounds. He claims 1) that the Fireman's Rule should not have been applied at all based upon the factual allegations and legal theories of recovery presented; 2) that the Fireman's Rule should not have been applied because it violates appellant's rights under the Fourteenth Amendment of the United States Constitution and Article 24 of the Maryland Declaration of Rights; and 3) that the Fireman's Rule and use of the invitee, licensee, and trespasser distinction should be abolished and a general negligence standard of reasonable care should be applied.

That first contention--the main thrust of the appellant's argument on this appeal--is, in turn, broken down into distinct sub-issues: 1) that the appellant was an invitee or a licensee by inviation and not a bare licensee upon the burning premises; 2) that Sting and Cline were not the landowners and were not, therefore, eligible for the limitation upon their liability created by the Fireman's Rule; 3) that a count against Sting and Cline based upon a theory of strict liability rather than upon ordinary negligence would be exempt from the Fireman's Rule in any event; and 4) that the claims against Westinghouse would in no event be affected by the Fireman's Rule.

Some initial inquiry is called for into the Fireman's Rule itself.

The Fireman's Rule

In view of a significant line of precedential authority, there is little difficulty in reaching a decision in this case by applying the Fireman's Rule. The far more difficult task is to articulate a theoretically sound rationale for the decision. That, in turn, requires a probing for the deeper legal principles, and therefore undergirding social purposes, behind the Fireman's Rule.

The prevailing Rule itself, as it limits the tort liability of landowners or others toward a fireman (or policeman) actually engaged in fighting a fire (or apprehending a criminal), is a practical rule in search of an adequate theory. It is an area of law that is in ferment, not so much in terms of the decisions being reached but in terms of the explanations being provided for those decisions. What is emerging is that the Fireman's (or Policeman's) Rule 1 appears to be predicated upon a cluster of loosely related reasons, no one of which is necessarily sufficient to explain the Rule in all of its manifestations.

Although neither the case law nor the treatises have meticulously isolated the component strands, 2 an emerging 3 rationale based upon assumption of risk is discernibly interwoven with the older rationale based upon the status of the visiting fireman upon the property. Closely related with the assumption of risk analysis is the notion that especially hazardous governmental functions, such as firefighting and policing, are the collective responsibility of society as a whole and are not functions relegated to dependence upon ordinary tort recovery.

A traditional and somewhat simplistic statement of the Fireman's Rule would run essentially as follows: a fireman may not recover from private parties for injuries sustained in the course of carrying out his professional duties, but is limited to statutory remedies such as workmen's compensation. Aravanis v. Eisenberg, 237 Md. 242, 206 A.2d 148 (1965). Fireman have generally been accorded the status of licensees when entering property to extinguish a fire. Steinwedel v. Hilbert, 149 Md. 121, 131 A. 44 (1925); Aravanis, supra; Sherman v. Suburban Trust Co., 282 Md. 238, 384 A.2d 76 (1978). The common explanation for this classification is because "they [firemen] are likely to enter at unforeseeable times, upon unusual parts of the premises, and under circumstances of emergency, where 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." Sherman, supra, at 282 Md. 243, 384 A.2d 76. As licensees, firemen are owed the duty by the owners and occupants of the property "of abstaining from wilful or wanton misconduct or entrapment, ... [which] encompass[es] a duty to warn of any hidden dangers, where there [is] knowledge of such danger and an opportunity to give warning." Id.

There is nothing wrong with that statement of law except that it is too limited an explanation of a potentially broader legal phenomenon. Depending exclusively upon the status of the fireman as a visitor upon the property, it explains only the rights of the fireman vis-a-vis the property owners or others responsible for the maintenance and upkeep of the property. 4 All of the earlier Maryland cases applying the Fireman's Rule have dealt with a fireman suing the property owners themselves; an explanation of the Rule based upon the status of the fireman upon the property was, therefore, adequate to explain those decisions.

The Status of the Fireman Upon the Property

Even this limited instance of a potentially broader rule, however, was not free of semantic difficulty. The fireman was deemed by the earlier cases to be merely a licensee upon the property; the later cases recognized that his status could change, geographically or chronologically, into that of an invitee. Literally, of course, he was neither a licensee nor an invitee but was rather sometimes "like a licensee" and at other times even "like an invitee." The treatise writers have explored the analogy and have generally concluded that the fireman (or policeman) is in a status sui generis, not identical with that of a licensee (or sometimes invitee) but rather analogous to them.

The fireman (or policeman) is not literally either an invitee or a licensee, of course, because he has not received, and does not need, an invitation from the owner or the consent of the owner to enter upon the land. He is there, rather, under governmental authority to serve a public purpose. He is frequently analogized to a licensee, and sometimes even said to be a licensee, because his bundle of rights vis-a-vis the landowner most closely resembles that of a licensee. This troubled problem of categorizing cleanly the status of a public employee who comes upon the land pursuant to a legal privilege not emanating from the landowner was commented upon by W. Prosser, Handbook of the Law of Torts § 61 (4th ed. 1971), at 395-396:

"The courts have encountered considerable difficulty in dealing with those who come upon the land in the exercise of a privilege not conferred by the consent of the occupier.... [T]hese have consisted for the most part of public officers and employees, who enter in the performance of their public duties. Such individuals do not fit very well into any of the arbitrary categories which the law has established for the...

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