Hawkins v. Sunmark Industries, Inc., 85-SC-1006-DG

• Decision Date: 18 December 1986
• Docket Number: No. 85-SC-1006-DG,85-SC-1006-DG
• Citation: 727 S.W.2d 397
• Parties: Samuel J. HAWKINS, Carrie W. Watson and Donald G. Johnson, Appellants, v. SUNMARK INDUSTRIES, INC.; Sun Oil of Pennsylvania, etc.; Tokheim, Inc.; Kenneth Federspiel; Sayed Kamarei, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 397

727 S.W.2d 397

Samuel J. HAWKINS, Carrie W. Watson and Donald G. Johnson, Appellants, v. SUNMARK INDUSTRIES, INC.; Sun Oil of Pennsylvania, etc.;

Tokheim, Inc.; Kenneth Federspiel; Sayed

Kamarei, Appellees.

No. 85-SC-1006-DG

Supreme Court of Kentucky.

Dec. 18, 1986.

Rehearing Denied April 30, 1987.

Larry B. Franklin, Michael R. Hance, Louisville, for appellants.

Robert C. Hobson, J.L. Lenihan, Richard H.C. Clay, William A. Miller, Sr., William Henry Wallace, Henry Triplett, Louisville, for appellees.

OPINION OF THE COURT

The appellants are three firemen employed by the City of Louisville Fire Department who were called upon to put out a fire in progress at a service station located in Louisville, Kentucky, and who were injured from an explosion that occurred very soon after their arrival.

The appellees are: (1) Sunmark Industries, Inc. and Sun Oil of Pennsylvania (hereinafter referred to as "Sun Oil"), the owners of the property; (2) Kenneth Federspiel, who operated the service station under a lease with Sun Oil; (3) Sayed Kamarei, a motorist who backed his automobile into a gasoline dispenser located on the premises and dislodged it, initiating the fire; and (4) Tokheim, Inc., who had manufactured the dispenser.

The trial court dismissed all claims on grounds they were barred by the so-called "Fireman's Rule." The Court of Appeals affirmed. We are called upon to reexamine the legitimacy of the Fireman's Rule and to decide the extent to which it should apply to this case.

On August 7, 1986, this court rendered an opinion affirming the dismissal of appellants' claims as to the appellees Kenneth Federspiel and Sayed Kamarei. No party to this litigation filed a petition for rehearing of this court's action in that regard. The opinion reversed the dismissal of the claims of appellants as to the appellees Sunmark Industries, Inc.; Sun Oil of Pennsylvania; and Tokheim, Inc. and remanded for further proceedings as to them. Tokheim did not petition for rehearing. Sunmark Industries, Inc. and Sun Oil of Pennsylvania did file a timely petition for rehearing, which we have granted, as to the claims against them.

This case was decided by summary judgment. Therefore, for the purpose of our review, the facts and inferences developed thus far by discovery must be viewed from the standpoint of the plaintiffs against whom summary judgment was entered. A summary judgment is improper unless "it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant." Roberson v. Lampton, Ky., 516 S.W.2d 838, 840 (1974).

Thus viewed, the facts are as follows: Kamarei drove his car into a service station owned by Sun Oil, and leased and operated by Federspiel, to ask for directions from the service station personnel. After receiving the directions, he accidentally bumped against a gasoline dispenser located on the premises, manufactured by Tokheim, Inc. Although the collision was relatively minor, the gasoline dispenser was knocked loose from its attachment, the electrical wiring in the dispenser was disturbed, and a short circuit occurred initiating a small fire.

After an unsuccessful attempt to extinguish the fire, the service station attendant on duty called the fire department, which responded almost immediately. Upon arrival at the scene, the department personnel found a small, non-threatening liquid fire burning at the base of the gasoline dispenser. Within seconds after their arrival, as one of the appellants was approaching the dispenser with a dry chemical extinguisher intending to put out the fire, the small fire exploded into a fire bomb causing serious injuries to all three of the appellants.

At the time summary judgment was entered there had been evidence developed, albeit disputed, indicating that the cause of the explosion was a build-up of pressure due to a failure of a relief valve caused by either defective design or construction of the gasoline dispenser. When the pressure reached a certain point, this caused an explosion of the gasoline dispenser that created a flame thrower effect, injuring the appellants. Additionally, although the facts on this point are far from clear, there is some indication that Sun Oil was negligent in original construction in failing to properly mount or attach the gasoline dispenser so as to withstand minor impact. Assuming negligence in this respect could be established against Sun Oil, it would, of course, relate only to the origin or inception of the fire, and not to the subsequent explosion which was the immediate cause of the appellants' injuries.

The Fireman's Rule as it applies in this state was enunciated in Buren v. Midwest Industries, Inc., Ky., 380 S.W.2d 96, 97-98 (1964), as follows:

"[A]s a general rule the owner or occupant is not liable for having negligently created the condition necessitating the fireman's presence (that is, the fire itself), but may be liable for failure to warn of unusual or hidden hazards, for actively negligent conduct ¹ and, in some jurisdictions, for statutory violations 'creating undue risks of injury beyond those inevitably involved in fire fighting.' "

In the Buren case, our Court applied the Fireman's Rule as a bar to claims made on behalf of the estates of deceased firemen whose deaths were allegedly "caused by the deceptive speed with which the fire suddenly enveloped the premises ... [which] would not have occurred if the building had been constructed and maintained in strict accordance with the [fire] law." 380 S.W.2d at 97.

The questions raised on the present appeal are: (1) the viability of the Fireman's Rule; (2) the constitutionality of the Rule; and (3) whether the Rule should be extended beyond the language of the Buren case to (a) one who is not an "owner or occupant" or (b) one who is not charged with negligence in "having created the condition necessitating the firemen's presence" but whose negligence or defective product causes a sudden, unusual, and unexpected exacerbation of the fire in progress (allegedly true in this case) resulting in injuries which would not have occurred otherwise.

The appellants claim that the Fireman's Rule is unconstitutional because it violates Section 14 of the Kentucky Constitution, which provides:

"All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law...."

Section 14 protects against encroachment upon those "jural rights which had become well established before the adoption of the Constitution." Kentucky Util. Co. v. Jackson County R.E. Coop. Corp., Ky., 438 S.W.2d 788, 790 (1968). In Ludwig v. Johnson, et al., 243 Ky. 533, 49 S.W.2d 347 (1932), our Court recognized that a cause of action based on negligence is a jural right so protected. We held that a statute permitting the status of guest passenger to be utilized as a defense to a negligence claim in an automobile accident case was an encroachment on this constitutional right. However, Ludwig v. Johnson is not applicable to the present case because the rule declaring that a fireman's status is a defense available to landowners and occupiers is a common law rule of longstanding preexisting our 1891 Constitution. Although the appellants argue the rule is unreasonable, their brief concedes that "[t]he Firemen's Rule had its inception in the traditional 19th century tort concepts."

At its inception, firemen who entered the premises in discharge of their duties were designated "licensees" to whom landowners or occupiers owed no duty except to warn of known concealed dangers and to refrain from inflicting willful or intentional injury. See Prosser on Torts, Sec. 61, at 397 (4th ed. 1971); 1 J. Dooley, Modern Tort Law, Sec. 19.07, at 454-58 (1982).

In addressing the landowner/licensee classifications, we said in Buren v. Midwest Industries, Inc., supra, that "... Justice is not aided by appending an inappropriate label and then visiting consequences which flow from a status artificially imputed," and "[We] are inclined to agree that he (the fireman) is neither a licensee nor invitee, but occupies a status sui generis."

We further said:

"A better basis of non-liability is that 'it is the fireman's business to deal with that very hazard and hence, perhaps by analogy to the contractor engaged as an expert to remedy dangerous situations, he cannot complain of negligence in the creation of the very occasion for his engagement,' the precise risk which the public pays him to undertake."

Thus we have decided that there is a public policy reason for the continued viability of an ancient, longstanding rule of law.

In Parker v. Redden, Ky., 421 S.W.2d 586 (1967), we recognized that it is a misnomer to apply the term "assumption of the risk" to the negligence, if any, that attaches to voluntarily placing oneself in a dangerous situation. If one negligently encounters a known danger, such conduct may or may not be contributory negligence depending on whether it was reasonable to do so under the circumstances, but the term "assumption of the risk" is inapplicable. The pure or strict assumption of the risk doctrine is not involved except in a contractual or employment situation wherein "the risk assumed was of negligent acts already committed by the person against whom recovery was sought." 421 S.W.2d at 592.

As stated in Court v. Grzelinski, 72 Ill.2d 141, 19 Ill.Dec. 617, 620, 379 N.E.2d 281, 284 (Ill.1978):

"In negligence actions, assumption of risk is confined to those situations involving persons who have a contractual or employment relationship with the defendant."

The fireman who comes to put out the fire has no contract to fight the fire except with the government agency which employs him. Nevertheless, the fireman employed by a municipality is paid from the public treasury from funds which are in some measure derived from the levy of taxes upon the...