Hack v. Gillespie

• Decision Date: 24 January 1996
• Docket Number: No. 94-1780,94-1780
• Parties: HACK et al., Appellants, v. GILLESPIE, Appellee, et al.
• Court: Ohio Supreme Court

Page 362

74 Ohio St.3d 362

658 N.E.2d 1046

HACK et al., Appellants, v. GILLESPIE, Appellee, et al.

No. 94-1780.

Supreme Court of Ohio.

Submitted Nov. 8, 1995.

Decided Jan. 24, 1996.

SYLLABUS BY THE COURT

An owner or occupier of private property can be liable to a fire fighter or police officer who enters premises and is injured in the performance of his or her official job duties if (1) the injury was caused by the owner's or occupier's willful or wanton misconduct or affirmative act of negligence; (2) the injury was a result of a hidden trap on the premises; (3) the injury was caused by the owner's or occupier's violation of a duty imposed by statute or ordinance enacted for the benefit of fire fighters or police officers; or (4) the owner or occupier was aware of the fire fighter's or police officer's presence on the premises, but failed to warn them of any known, hidden danger thereon. (Scheurer v. Trustees of Open Bible Church [1963], 175 Ohio St. 163, 23 O.O.2d 453, 192 N.E.2d 38, paragraph two of the syllabus, followed.)

Appellant Stephen Hack was a fire fighter for the city of Lakewood, Ohio. On March 1, 1989, Hack responded to a fire at 1589 Larchmont Avenue. He gained access to the residence by entering a porch located on the second floor. While on the porch, Hack leaned over a decorative railing to retrieve some equipment. The railing, however, gave way, causing Hack to fall to the ground. As a result, Hack suffered a broken hip and elbow.

At the time of the fire, it appears that there were no occupants in the house. On December 2, 1988, the owner of the premises, Kevin Gillespie, appellee, had entered into an agreement with Patrick T. Cullen and Thom Rodgers III, whereby Cullen and Rodgers were given an option to purchase the property. It appears that Cullen and Rodgers entered into the agreement for the purpose of renovating the residence and, pursuant to the agreement, they were to have exclusive possession and control of the premises for the term of the option. However, Gillespie remained the owner of the premises. He retained a key to the house and, additionally, furniture and other items apparently owned by Gillespie were kept on the premises.

Following the accident, Jack L. Henderson, Fire Marshal for the Lakewood Fire Department, investigated the cause of Hack's fall. Henderson determined that the railing on the porch had not been properly secured to the roof of the house. Henderson informed the city building inspector about the railing and, according to Henderson, the inspector cited Gillespie for violating the Lakewood Building Code.

On October 13, 1992, Hack and his wife, Melanie Hack, also an appellant herein, filed suit against Gillespie, Cullen, and Rodgers. In the complaint, which included Melanie's claim for loss of services and consortium, appellants sought damages against the defendants for constructing and/or maintaining the railing in a defective condition, for failing to warn Hack of the loose railing, and for violating the building code.

Thereafter, Gillespie filed a motion for summary judgment. In his affidavit in support of his motion, Gillespie testified that he had not been aware of the condition of the railing, that he had not installed it, and that from winter 1978 until Cullen and Rodgers retained possession and control of the premises, the doors leading from inside the house to the porch from which Hack fell had been nailed shut and plastic sheeting had been secured over the inside of the doorways.

Cullen and Rodgers also moved for summary judgment. In their motion, Cullen and Rodgers claimed that they were not at the residence at the time of the fire, that they were not aware of the alleged defective condition of the decorative railing, and that the porch where Hack fell had been used infrequently or not at all.

On May 19, 1993, the trial court granted the defendants' motions for summary judgment. Specifically, the trial court stated that its decision was based on the reasoning and holdings in Herdman v. Weiss (1988), 55 Ohio App.3d 150, 563 N.E.2d 40, and Scheurer v. Trustees of Open Bible Church (1963), 175 Ohio St. 163, 23 O.O.2d 453, 192 N.E.2d 38.

On appeal, the Court of Appeals for Cuyahoga County affirmed the judgment of the trial court. The court of appeals, also relying on Scheurer and Herdman, supra, held (1) that the porch railing was not a hidden trap, (2) that Gillespie, Cullen, and Rodgers were not aware of Hack's presence on the premises and did not have the opportunity to warn him, (3) that there was no evidence of any willful or wanton misconduct or affirmative act of negligence on the part of Gillespie, Cullen or Rodgers, and (4) that Lakewood Building Code 1305.29(e), providing that porches be constructed and maintained in a safe condition, was not "intended to include firefighters in the class of protected individuals when it prescribed the safe installation and ongoing maintenance of residential appurtenances."

The cause is now before this court pursuant to the allowance of a discretionary appeal. ¹

Donald E. Caravona & Associates, Cleveland, and Mark J. Obral, Lorain, for appellants.

Rhoa, Follen & Rawlin Co., L.P.A., and Ronald V. Rawlin, Cleveland, for appellee.

Scanlon & Henretta Co., L.P.A., Lawrence J. Scanlon and Ann Marie O'Brien, Akron, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.

Joseph W. Diemert, Jr. & Associates Co., L.P.A., Mayfield Heights, Joseph W. Diemert, Jr., Cleveland, and Bradric T. Bryan, Mayfield Heights, urging reversal for amicus curiae, the Northern Ohio Fire Fighters Association.

Arter & Hadden and Kristen L. Mayer, Cleveland, urging affirmance for amicus curiae, Ohio Association of Civil Trial Attorneys.

DOUGLAS, Justice.

The issue presented for our consideration concerns the liability of an owner of private property to a fire fighter who enters the premises and, while performing his official duties, suffers harm as a result of the condition of the premises. Specifically, we are asked to reexamine the rule in Ohio regarding a landowner's liability to police officers and fire fighters, set forth in Scheurer, supra, and generally referred to as Ohio's "Fireman's Rule."

The term "Fireman's Rule," which is used to include fire fighters and police officers, refers to a common-law doctrine originally formulated in Gibson v. Leonard (1892), 143 Ill. 182, 32 N.E. 182. See Strauss, Where There's Smoke, There's The Firefighter's Rule: Containing The Conflagration After One Hundred Years, 1992 Wis.L.Rev. 2031. Gibson classified fire fighters as licensees entering upon property for their own purposes and with the consent of the property owner or occupant. ² Id. at 2034. Thus, the landowner or occupant owed no duty to the fire fighter unless the fire fighter's injury was caused by the owner's or occupier's willful or wanton misconduct. Id. at 2031, fn. 2.

The rule was originally created to apply to fire fighters, but it has evolved and has been extended to include police officers. Id. at 2032. See, also, Brady v. Consol. Rail Corp. (1988), 35 Ohio St.3d 161, 163, 519 N.E.2d 387, 388-389, citing Scheurer, supra. It appears that a vast majority of our sister states have adopted or have retained some form of the Fireman's Rule. The rule, however, is by no means a uniform rule. Rather, those jurisdictions which have adopted or retained some vestige of the rule have done so by applying various legal theories and principles, resulting in several different versions. See, generally, Strauss, supra, 1992 Wis.L.Rev. 2031. See, also, Pottebaum v. Hinds (Iowa 1984), 347 N.W.2d 642, 643; and Calvert v. Garvey Elevators, Inc. (1985), 236 Kan. 570, 572, 694 P.2d 433, 436.

The rule in Ohio, like many of our sister jurisdictions, contains exceptions to the "no duty" approach as originally established in Gibson, supra. In Scheurer, supra, paragraphs one and two of the syllabus, this court held:

"1. A policeman entering upon privately owned premises in the performance of his official duty without an express or implied invitation enters under authority of law and is a licensee.

"2. Where a policeman enters upon private premises in the performance of his official duties under authority of law and is injured, there is no liability, where the owner of the premises was not guilty of any willful or wanton misconduct or affirmative act of negligence; there was no hidden trap or violation of a duty prescribed by statute or ordinance (for the benefit of the policeman) concerning the condition of the premises; and the owner did not know of the policeman's presence on the premises and had no opportunity to warn him of the danger."

In the case at bar, appellants ask this court to reexamine and, specifically, overrule Scheurer and hold that a landowner owes a duty of reasonable care, in all instances, to fire fighters who enter upon the private premises in the exercise of their official duties. In this regard, appellants suggest that fire fighters who enter upon private premises should be classified as invitees and, accordingly, may recover for personal injuries suffered as a result of the possessor's ordinary acts of negligence. Alternatively, appellants contend that Scheurer should be limited so that a fire fighter can recover against a negligent landowner where, as here, the dangerous condition that caused the injury was in no way associated with the emergency to which the fire fighter responded.

The contentions posed by appellants, however, miss the fundamental purpose upon which the holding in Scheurer is based. We concede that this court has, previously, determined that the duty of care owed by a landowner to a fire fighter (or police officer) stems from common-law entrant classifications, i.e., licensees or invitees. ³ However, Ohio's Fireman's Rule is more properly grounded on policy considerations, not artificially imputed common-law entrant classifications. Indeed, persons such as fire fighters or...