Hass v. Chicago & N. W. Ry. Co., 188

• Decision Date: 09 October 1970
• Docket Number: No. 188,188
• Citation: 179 N.W.2d 885,48 Wis.2d 321
• Parties: Russell R. HASS et al., Respondents v. CHICAGO AND NORTH WESTERN RY. Co., a domestic corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 885

179 N.W.2d 885

48 Wis.2d 321

Russell R. HASS et al., Respondents v. CHICAGO AND NORTH WESTERN RY. Co., a domestic corporation, Appellant.

No. 188.

Supreme Court of Wisconsin.

Oct. 9, 1970.

This is an appeal from an order of the circuit court for Ozaukee county overruling the demurrer of the defendant to the complaint.

The complaint alleges that the plaintiff, a volunteer fireman, was seriously injured in the course of his duties while fighting a fire which resulted from the negligence of the defendant railroad company. The fire was allegedly started by one of the defendant's diesel engines. Plaintiff alleged negligence in that the engine was not properly maintained, that it was known by defendant that the engine was prone to start fires, and that the railroad company nevertheless operated the train 'when the place and weather conditions were susceptible to the starting of fires.' It was also alleged that, after the passage of the engine, the defendant failed to patrol its right-of-way to prevent the spread of the fire.

The trial judge overruled the demurrer on the ground that the issue--whether a fireman can recover for injuries received in the line of duty when the only negligence alleged is starting a fire and failing to prevent its spread--does not present a pure question of law.

Defendant appeals.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, George W. Greene, Milwaukee, of counsel, for appellant.

Gerald J. Bloch, Phillips, Hoffman & Bloch, Milwaukee, for respondents.

HEFFERNAN, Justice.

At the outset it should be pointed out that the complaint does not attempt to predicate liability on the railroad in its capacity as the owner or proprietor of the premises. The complaint does not allege that the injury occurred on the railroad right-of-way. Rather, the allegation is of negligence in starting a fire and failing to exercise due care in preventing its spread.

We are not obliged, therefore, in this case to grapple with the subtle distinctions in respect to a landowner's duty to licensees, invitees, and those, like firefighters, whom some courts hold are sui generis by reason of their obligation to enter onto land without invitation. The firefighter, volunteer or paid, falls into the limbo of the latter category. Plaintiff, defendant, and the trial judge all concur that the problem presented is one of negligence, unaffected by any special duty or immunity that arises from the possession of land.

Moreover, whether a firefighter is regarded as a licensee or an invitee, the law is clear that the occupier of land incurs no liability to the firefighter under the scenario presented by these pleadings. Assuming, as we must from the allegations of the complaint, that the railroad company's negligence occasioned the ignition and spread of the fire, what is the responsibility of the landowner to either a licensee or invitee? Its responsibility is merely to warn of danger. In the case of the licensee, it is to avoid traps and to reveal all hazards known to the landowner and unknown to the licensee. Szafranski v. Radetzky (1966), 31 Wis.2d 119, 141 N.W.2d 902. In the case of an invitee, it is to exercise ordinary care, including the obligation to give reasonable warning of any hazards.

If the fact and the nature of the hazard is known to the person who comes upon land either as a licensee or as an invitee, the landowner's special duty to warn is satisfied. In Scheeler v. Bahr (1969), 41 Wis.2d 473, 164 N.W.2d 310, the plaintiff, a licensee, dove from the defendant's pier into shallow water, causing his severe injury. We held that, since the murky condition of the water, plainly seen by plaintiff, gave notice of the potential hazard of shallowness, the owner of the land had no further obligation to warn the licensee of the hazard.

In Szep v. Robinson (1963), 20 Wis.2d 284, 121 N.W.2d 753, this court held that an employer had no duty to instruct an invitee, a babysitter, of the special hazards of an electric stove, since the very nature of the device gave warning that it produced heat and could cause fire.

It is therefore obvious that the duty of a landowner to a firefighter in respect to warning of the hazard is satisfied by the very nature of the call for assistance. The hazard of fire feared by the landowner and for which he asks aid in fighting is the very reason for the summons to duty. The call to duty is the warning of the hazard; and even in the absence of a summons by the occupier of the land, the hazards of fire are apparent. While other courts have adopted other theories to explain why there is no liability, the rule of no liability is uniform, whether firefighters are classified as invitees, licensees, or sui generis. 86 A.L.R.2d 1205, 1213.

We do not herein decide the obligation of a landowner to a firefighter for conditions of the premises which aggravate the hazard, nor do we discuss possible liability that may arise under circumstances where a landowner fails to warn firefighters of special hazards known to him but unknown to the firefighter. Such determination must abide an appeal which presents facts that are totally absent in the instant case.

It is...