Furstein v. Hill

• Decision Date: 14 May 1991
• Docket Number: Nos. 14047,14104,s. 14047
• Citation: 218 Conn. 610,590 A.2d 939
• Court: Connecticut Supreme Court
• Parties: Edward FURSTEIN v. Rita B. HILL.

Page 939

590 A.2d 939

218 Conn. 610

Edward FURSTEIN v. Rita B. HILL.

Nos. 14047, 14104.

Supreme Court of Connecticut.

Argued March 19, 1991.

Decided May 14, 1991.

Elizabeth Dee Bailey, West Hartford, for appellant in first appeal (intervening plaintiff).

Jesse M. Frankl, Glastonbury, for appellant-appellee in second appeal (plaintiff).

Robert M. LaRose, Springfield, Mass., for appellee-appellant in second appeal (defendant).

Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and FRANCIS X. HENNESSY, JJ.

PETERS, Chief Justice.

The dispositive issue in this consolidated appeal is whether a police officer occupies the status of an invitee or of a licensee when, in the course of performing his official duties, he is injured by a defective condition on the property of a landowner. The plaintiff, Edward Furstein, a West Hartford police officer, brought an action to recover damages for personal injuries that he suffered as the result of investigating a possible burglary at a house owned by the defendant, Rita B. Hill. The town of West Hartford intervened as a plaintiff to recover sums expended in workers' compensation payments to the plaintiff. At the close of the plaintiff's evidence, the defendant moved for a directed verdict on the theory that the plaintiff had not provided a factual foundation to demonstrate her failure to comply with the duty of care owed by a landowner to a licensee. The trial court, Freed, J., denied the motion and submitted the case to the jury, which returned a verdict for the plaintiff reduced in amount by its finding that the plaintiff himself had been 40 percent negligent. Denying motions to set aside the verdict filed by the plaintiff, the intervening plaintiff and the defendant, the trial court rendered judgment in accordance with the verdict and apportioned the award between the plaintiff and the intervening plaintiff. Each of the parties appealed to the Appellate Court and we transferred the consolidated appeals to this court in accordance with Practice Book § 4023. Because we conclude that the defendant's motion for directed verdict should have been granted, we reverse the judgment of the trial court.

The relevant facts are not in dispute. On September 10, 1987, a private alarm company notified the West Hartford police department that a silent burglar alarm had been activated on property owned by the defendant, Rita B. Hill. The police department dispatched the plaintiff, police officer Edward Furstein, to investigate the alarm. The plaintiff injured his knee when a board in the deck attached to the rear of the house collapsed as he crossed the deck to inspect the sliding glass doors that provided rear access to the house. As a result of his injury, the plaintiff was unable to work for approximately six months, and suffered a permanent partial disability of the knee.

At trial, the plaintiff produced evidence that the deck had been built in 1980 of untreated wood and that its general condition at the time of the plaintiff's accident in 1987 was "rotting" and "weather beaten." The plaintiff produced no direct evidence that the defendant, who lived in Florida and who did not testify at trial, had actual or constructive knowledge either of the rotted condition of the deck or of the fact that it had been built from untreated wood that would tend to rot more quickly than would chemically preserved wood. The plaintiff did not produce the defendant as a witness, either directly or by deposition, to testify regarding her knowledge of the condition of the deck. He introduced instead as an exhibit the defendant's responses to the plaintiff's interrogatories. These responses established only that the defendant owned the house at the time of the plaintiff's accident, that she acquired the property in May of 1980, that the deck was part of the original house construction in May of 1980, that it was made of wood and was covered with a stain. The plaintiff produced no evidence that the defendant had ever been on the property, either at the time of acquisition or subsequently, or that any person acting on her behalf had any actual or constructive knowledge of the condition of the deck at the time of the plaintiff's accident. The plaintiff did not attempt to prove that the defendant had actual knowledge of the plaintiff's presence on her property at the time of the accident. Rather, he relied on the undisputed fact that the police had been summoned to the scene by an alarm company in response to an alarm system that had been installed in 1980 when the defendant acquired the property.

At the close of the plaintiff's evidence, the defendant moved for a directed verdict. She argued that the plaintiff's status on the property, under Connecticut law, was akin to that of a licensee, to whom a landowner would owe a duty of due care only if she had actual or constructive knowledge of the licensee's presence on her property. The defendant further argued that the plaintiff had presented no evidence that would support a finding that she had actual or constructive knowledge either of the defect or of the plaintiff's presence. The plaintiff argued, in opposition to the motion, that his status on the property at the time of the accident was that of an invitee, to whom the plaintiff owed a duty to inspect the premises and to maintain them in a reasonably safe condition.

The trial court, Freed, J., denied the defendant's motion for a directed verdict but instructed the jury that the plaintiff was a licensee. When the jury nonetheless returned a verdict, partially offset by the plaintiff's negligence, in favor of the plaintiff, the court denied all the motions to set the verdict aside and rendered judgment on the jury's verdict.

On appeal, the principal issue is whether the trial court correctly charged the jury that the plaintiff was a licensee rather than an invitee. Once we have resolved that issue of law, we must examine the record to determine the factual sufficiency of the evidence to sustain the jury's award of damages to the plaintiff. We conclude, as the defendant contends, that the trial court's charge was correct but that the court improperly denied her motions for a directed verdict and to set aside the verdict in light of the plaintiff's failure to satisfy his burden of production regarding the defendant's knowledge of the defective condition and of the plaintiff's presence on the property.

I

The plaintiff's appeal is premised on the proposition that, when he entered onto the defendant's property in response to a burglar alarm triggered by an alarm system installed by the defendant, his status was that of an invitee. Our cases do not support this proposition.

This court first addressed the status of a public officer who is injured on private property while lawfully present in the exercise of his duties in Roberts v. Rosenblatt, 146 Conn. 110, 148 A.2d 142 (1959). We there held that the plaintiff, a firefighter who had been injured in a fall on an icy sidewalk while present on the premises "in the performance of a public duty under a permission created by law," occupied a status "akin to that of a licensee," to whom the owners of such premises owed "no greater duty than that due a licensee." Id., at 113, 148 A.2d 142. Roberts adopted the principle expressed in the Restatement (Second) of Torts, § 345(1), that "the liability of a possessor of land to one who enters the land only in the exercise of a privilege, for either a public or a private purpose, and irrespective of the possessor's consent, is the same as the liability to a licensee." 2 Restatement (Second), Torts (1965) § 345(1), pp. 226-27. The conclusion reached by this court in Roberts is a form of the common law doctrine known as the "firefighter's rule." See Mignone v. Fieldcrest Mills, 556 A.2d 35, 37 n. 1 (R.I.1989).

Although this court has not previously addressed the scope of the applicability of the firefighter's rule, we note that no state that has adopted the rule has declined to extend it to police officers. Kreski v. Modern Wholesale Electric Supply Co., 429 Mich. 347, 357 n. 6, 415 N.W.2d 178 (1987); see also Flowers v. Rock Creek Terrace, 308 Md. 432, 442 n. 4, 520 A.2d 361 (1987); Berko v. Freda, 93 N.J. 81, 84, 459 A.2d 663 (1983). Having reviewed the history and policy issues underlying the rule, we similarly conclude that the rule applies to police officers as well as to firefighters.

A

The firefighter's rule has well developed roots in the common law. Although the rule had its origins in a social system in which "the landowner was sovereign within his own boundaries" and owed a licensee only the duty not to injure him wilfully or wantonly; Dini v. Naiditch, 20 Ill.2d 406, 413, 170 N.E.2d 881 (1960); the jurisdictions that have applied the rule in recent years have offered more cogent reasons to justify its continued viability.

The most compelling argument for the continuing validity of the rule is the recognition that firefighters and police officers often enter property at unforeseeable times and may enter unusual parts of the premises under emergency circumstances. Kreski v. Modern Wholesale Electric Supply Co., supra, 429 Mich. at 368, 415 N.W.2d 178; Nared v. School District of Omaha, 191 Neb. 376, 379-80, 215 N.W.2d 115 (1974); 2 Restatement (Second), Torts (1965) § 345(1), comment (c), p. 228. Such public officers enter the land regardless of the owner's consent; indeed, if the conditions for the exercise of their public duty exist, the owner would not be privileged to exclude them. Shypulski v. Waldorf Paper Products Co., 232 Minn. 394, 396, 45 N.W.2d 549 (1951); Scheurer v. Trustees of the Open Bible Church, 175 Ohio St. 163, 168, 192 N.E.2d 38 (1963); 5 F. Harper, F. James & O. Gray, The Law of Torts (2d Ed.1986) § 27.14, p. 260. Recognizing that only invitees may rely on an implied representation of safety, courts have considered it unreasonable to require landowners to undertake the same...