Kreski v. Modern Wholesale Elec. Supply Co.

Citation429 Mich. 347,415 N.W.2d 178
Decision Date01 May 1987
Docket NumberDocket Nos. 78598,Nos. 3-4,78640,78599,s. 3-4
CourtSupreme Court of Michigan
PartiesMary Ellen KRESKI, Personal Representative of the Estate of Gary Kreski, deceased, and Mary Ellen Kreski, individually, Plaintiff-Appellee, v. MODERN WHOLESALE ELECTRIC SUPPLY CO., a Michigan corporation, and Edwin Weinstein, Defendants, Cross-Plaintiffs-Appellants, and The Detroit Edison Company, a Michigan corporation, Defendant, Cross-Defendant- Appellant, and Widmer Roofing Company, a Michigan corporation, Benjamin Tapper, d/b/a Benjamin Tapper Electrical Contractor, and Den-Thom, Inc., a Michigan corporation, d/b/a Autumn Air Heating and Air Conditioning Company, Defendants, Cross-Defendants. Laura REETZ, Plaintiff-Appellant, v. TIPIT, INCORPORATED, a Michigan corporation, and Tipit, Inc., d/b/a Tipit Lounge, Defendant-Appellee. Calendar,

[429 Mich. 350] Mellon and McCarthy, P.C. by Daniel J. McCarthy and Steve J. Weiss, Troy, for defendants-appellants, Modern Wholesale Elec. Supply Co. and Edwin Weinstein.

Thomas A. Woodley, Gregory K. McGillivary, Mulholland and Hickey, Washington, D.C., Ronald R. Helveston, Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C., Detroit, for amicus curiae Intern. Ass'n of Fire Fighters, AFL-CIO, CLC.

William E. Maxwell, Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. by Ronald R. Helveston, Alison L. Paton, Detroit, for Michigan State Fire Fighters Union.

[429 Mich. 351] Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. by Theodore Sachs, Barry P. Waldman, George H. Kruszewski, William E. Maxwell, Jr., Detroit, for plaintiff-appellee.

[429 Mich. 350] Honigman, Miller, Schwartz & Cohn by James K. Robinson, Frederick M. Baker, Jr., Lansing, Walter S. Schwartz, Detroit, for Detroit Edison Co.

Brandt, Hanlon, Becker, Lanctot, McCutcheon, Martin & Schoolmaster by Charles T. McCutcheon, Jr., Detroit (Gromek, Bendure & Thomas by Carl L. Gromek, Nancy L. Bosh, Detroit, of counsel), for Auto Club Group Ins. Co.

Harvey, Kruse, Westen & Milan, P.C. by Michael F. Schmidt, Maurice A. Borden, Detroit, for Reetz.

Holahan, Malloy, Maybaugh & Monnich, P.C., J. Michael Malloy, III, Mary Jo Diegel, Troy, for Tipit, Inc.

[429 Mich. 351] RILEY, Chief Justice.

These consolidated cases present an issue of first impression in Michigan. We are asked to adopt the so-called fireman's rule which precludes fire fighters and police officers from recovering damages for injuries arising out of the risks inherent in their respective professions. We are persuaded that the policy rationales underlying the rule are sound and practical, and thus, adopt the rule for this state.

FACTS AND PROCEEDINGS

Kreski v. Modern Wholesale Electric

Plaintiff's decedent, Gary Kreski, 1 worked as a fire fighter for the City of Livonia. On April 17, 1983, Kreski died while fighting a fire in a building owned by Edwin Weinstein and occupied by Modern Wholesale Electric Company, when the building's roof and ceiling collapsed upon Kreski without warning.

Plaintiff, individually, and as Gary Kreski's personal representative, brought a wrongful death action against Weinstein and Modern. The complaint, filed in Wayne Circuit Court on April 25, 1983, alleged that negligence on the part of Weinstein and Modern in maintaining the building [429 Mich. 352] proximately caused Kreski's death. 2 A second count alleged that the building's condition created a nuisance which proximately caused Kreski's death. 3

Weinstein and Modern moved for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8). The motion was based on the fireman's rule which, defendants stated, provides that "a duty is not owed by the owner or occupant of land upon which a fireman is injured during the discharge of his duty as a fireman." The court denied defendants' motion, and they appealed. The Court of Appeals granted leave to appeal on December 18, 1984.

In the meantime, on July 27, 1984, plaintiff filed an amended complaint, naming The Detroit Edison[429 Mich. 353] Company as a defendant, 4 as well as others not involved in this appeal. Detroit Edison moved for summary

judgment, stating that the fireman's rule "bars tort claims by firemen and policemen against persons whose negligence causes the fire or other hazard that injures the officer in the course of his duties." The trial judge denied the motion. Edison sought leave to appeal which was granted January 24, 1985. The Weinstein, Modern, and Edison appeals were then consolidated

The Court of Appeals affirmed the decision of the trial court as to all defendants, rejecting arguments that Kreski's status on the property was that of a licensee, and that the fireman's rule precluded plaintiff's claim.

With regard to Kreski's status while fighting the blaze, the Court recognized that fire fighters do not fit neatly into the definition of either invitee or licensee. However, the Court concluded:

[429 Mich. 354] "[U]nder Michigan law, firefighters are invitees. The Michigan cases distinguish between situations in which an injured person is on a defendant's premises for his or her own purposes and those in which his or her presence is mutually beneficial to both parties. A firefighter who comes on a defendant's premises to fight a fire is there for a purpose mutually beneficial to both parties. The occupier of the land is benefited by the firefighter's services when the fire is extinguished. Thus, the element of economic benefit is present. The landowner or occupier summons help, so the element of invitation is present.... It cannot be said that the firefighter is a mere licensee, on the premises solely for his or her own benefit." Kreski v. Modern Wholesale Electric Supply Co, 151 Mich.App. 376, 381, 390 N.W.2d 244 (1986).

Acknowledging that "courts almost universally recognize that a fireman cannot recover when [a] complaint is based on the same conduct that initially created the need for the officer's presence in [an] official capacity," id., 382, 390 N.W.2d 244, the Court declined to adopt a fireman's rule for Michigan. The Court analogized the fire fighting profession to that of a punch-press operator who arguably assumes the risk of losing a hand while working the press, but may nonetheless recover tort damages against a third-party tortfeasor. "In our view, it would be unfair to preclude fire fighters from recovering from third-party tortfeasors when other employees, even those engaged in dangerous occupations, can do so." Id., 386, 390 N.W.2d 244. Finding the remainder of defendants' arguments to be unpersuasive, the Court affirmed the decision of the trial court. Pursuant to Administrative Order No. 1984-2, the Court certified a conflict with the decision in its companion case, Reetz v. Tipit, Inc., 151 Mich.App. 150, 390 N.W.2d 653 (1986). We granted leave to appeal, 426 Mich. 864 (1986).

[429 Mich. 355] Reetz v. Tipit, Inc

Plaintiff, Laura Reetz, was employed by the City of Detroit as a police officer. On October 3, 1982, at approximately 10:30 a.m., plaintiff and her partner responded to a reported breaking and entering at the Tipit Lounge which was owned by Sharon Ulrich and managed by John Fontana.

Apparently, a passer-by, Donald Andrus, had noticed a broken window in the lounge and called the police. Plaintiff and her partner entered through the broken window and proceeded to investigate. The interior of the bar was dark, but plaintiff did

not turn on her flashlight until she approached a pair of swinging doors. Plaintiff was seriously injured when she fell approximately ten feet to the basement through an open trap door immediately behind the swinging doors. The trap door, when closed, covered the stairs leading to the basement which was used for storage and dressing rooms. There was disputed evidence that Ulrich or Fontana routinely left the trap door open at night to allow a cat to get to the basement. Several officers testified at depositions that, after plaintiff fell, Andrus told them he had warned Ulrich and Fontana about the dangers of leaving the trap door open. At his deposition, Andrus denied making the statements or ever discussing the trap door with Ulrich or Fontana. By affidavit, Ulrich and Fontana both averred that they were present on September 24, 1982, when the bar was closed for vacation, at which time the trap door was shut. Further, neither Ulrich, Fontana, nor anyone following their instructions opened the bar again before plaintiff was injured

Plaintiff filed her complaint in Wayne Circuit Court on July 22, 1983, alleging that, while on the premises acting within the scope of her employment, plaintiff enjoyed the status of invitee. As [429 Mich. 356] such, plaintiff alleged that defendant had breached its duty of reasonable care owed her as an invitee. 5

Defendant moved for summary judgment pursuant to both GCR 1963, 117.2(1) and 117.2(3), now MCR 2.116(C)(8) and 2.116(C)(10), arguing that Reetz was a licensee while on the premises and, therefore, was not owed a duty of reasonable care. The trial court agreed and granted defendant's motion. Plaintiff's motion for rehearing and motion for leave to file an amended complaint were denied.

The Court of Appeals affirmed the grant of summary judgment and adopted 2 Restatement Torts, 2d, Sec. 345. That section provides:

" '(1) Except as stated in Subsection (2), 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) The liability of a possessor of land to a public officer or employee who enters the land in the performance of his public duty, and suffers harm because of a condition of a part of the land held open to the public, is the same as the liability to...

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