Johnson v. Miller, C9-85-2
| Decision Date | 23 July 1985 |
| Docket Number | No. C9-85-2,C9-85-2 |
| Citation | 371 N.W.2d 94 |
| Parties | Oscar Walter JOHNSON, Appellant, v. Michael J. MILLER, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. The trial court erred in ruling that the fireman assumed the risk that tenant had removed a heating grate, which created a 3 foot square hole in the floor of the duplex.
2. On remand, the trial court should address the liability of the landlord for the negligence of the tenant who allegedly removed the floor grate, creating the hole which caused the injury.
Richard G. Day, Wright S. Walling, Minneapolis, for appellant.
Daniel J. Buivid, Jr., Minneapolis, for respondent.
Heard, considered and decided by SEDGWICK, P.J., and WOZNIAK and RANDALL, JJ.
Plaintiff Oscar W. Johnson appeals the trial court's decision precluding his recovery in this negligence action. We reverse and remand.
Respondent Michael J. Miller owns the residential rental property located at 2822 Oliver Avenue North in Minneapolis. For two years before December 1979, he leased the bottom half of the duplex to Paul Pawlenty. Pawlenty had a drinking problem and occasionally threw things around the apartment when he drank to excess.
On December 16, 1979, appellant Oscar W. Johnson and several other firefighters responded to a fire at Miller's duplex on Oliver Avenue. Appellant was a captain who had been with the fire department since 1953. Smoke was visible when they arrived at the building, and bystanders warned that a man was inside. Appellant instructed firefighter Timothy Olson to start laying the hose line and then entered Pawlenty's apartment, where visibility was impaired by smoke. After taking a few steps forward, appellant fell through an uncovered heating duct in the floor and landed on top of a furnace.
The grate which covered the furnace had been removed before the fire, presumably by Pawlenty. The opening covered by the grate is about 36 inches square. Respondent testified that he knew that Pawlenty had on occasion removed the grate from the furnace duct in the floor, but he was unaware that the grate was not in place on the day of the fire. As a result of his fall, appellant burned his left hand and separated his right shoulder.
Appellant was unable to work for about ten weeks after the injury. His doctor testified at trial that he was not permanently injured as a result of this accident, but that a subsequent dislocation left him partially permanently disabled. Appellant returned to work for about one and one half years and then retired early.
The case was tried without a jury. The trial court ruled that appellant primarily assumed the risk of the injury and that his claim was therefore barred by the "fireman's rule."
1. Did the trial court err by ruling that appellant assumed the risk that a hole might be in the floor of the duplex?
2. If so, should the trial court address the issue of the landlord's liability for the negligence of a tenant who had exclusive possession and control of the property when the injury occurred?
1. Appellate review is generally limited to determining whether the trial court's findings are clearly erroneous and whether it erred in its legal conclusions. Bohm v. Independent School District No. 283, 358 N.W.2d 146, 148 (Minn.Ct.App.1984).
The trial court concluded that appellant primarily assumed the risk under the facts of this case, and therefore was barred from recovery by the fireman's rule. Therefore, the trial court did not address the question of the landlord's liability for the negligence of a tenant in exclusive possession and control of the premises.
The court also stated:
The record in this case is clear that the risk of falling through a hole in a floor while fighting a house fire is one that is reasonably apparent to firefighters as a part of firefighting. On cross-examination plaintiff admitted that there is always a possibility of a hole in a floor and that it is a "distinct danger."
* * *
The Court is not persuaded by plaintiff's argument that the missing grate made the risk of falling through the floor "hidden or unanticipated."
The question is whether the trial court erred in applying the fireman's rule. In a seminal case regarding the fireman's rule, the Minnesota Supreme Court held:
* * * [L]andowners owe firemen a duty of reasonable care, except to the extent firemen primarily assume the risk when entering upon the land. Firemen assume, in a primary sense, all risks reasonably apparent to them that are part of firefighting. However, they do not assume, in a primary sense, risks that are hidden from or unanticipated by the firemen * * * he may recover if his injury is caused by a hidden or unanticipated risk attributable to the landowner's negligence and such negligence is the proximate cause of the injury.
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