Kreski v. Modern Wholesale Elec. Supply Co.

• Decision Date: 04 August 1986
• Docket Number: Docket Nos. 80629,82112
• Parties: Mary Ellen KRESKI, Personal Representative of the Estate of Gary Kreski, deceased, and Mary Ellen Kreski, individually, Plaintiffs-Appellees, v. MODERN WHOLESALE ELECTRIC SUPPLY CO., a Michigan corporation, 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.
• Court: Court of Appeal of Michigan — District of US

Page 244

390 N.W.2d 244

151 Mich.App. 376

Mary Ellen KRESKI, Personal Representative of the Estate of Gary Kreski, deceased, and Mary Ellen Kreski, individually, Plaintiffs-Appellees, v. MODERN WHOLESALE ELECTRIC SUPPLY CO., a Michigan

corporation, 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.

Docket Nos. 80629, 82112.

Court of Appeals of Michigan.

Submitted Nov. 14, 1985.

Decided May 5, 1986.

Released for Publication Aug. 4, 1986.

Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. by Barry P. Waldman and William E. Maxwell, Jr., Detroit, for plaintiffs-appellees.

Mellon and McCarthy by Daniel J. McCarthy and Steve J. Weiss, Troy, for defendants-cross plaintiffs-appellants Modern Wholesale Elec. Supply Co. and Weinstein.

Walter S. Schwartz, Detroit, for defendant-cross defendant-appellant Detroit Edison Co.

Before GRIBBS, P.J., and HOOD and DAVIS, ^* JJ.

GRIBBS, Presiding Judge.

Plaintiff's decedent, Gary Kreski, was fatally injured in the course of his employment as a Livonia firefighter when the roof and ceiling of a building owned by defendant Edwin Weinstein and occupied by defendant Modern Wholesale Electric Supply Co. (Modern) collapsed on him without warning. On April 25, 1983, plaintiff filed a wrongful death action against Weinstein and Modern in Wayne County Circuit Court. Those defendants moved for summary judgment, but that motion was denied on June 4, 1984. Defendants sought leave to appeal to this Court in Case No. 80629, and on December 18, 1984, leave was granted.

On July 27, 1984, plaintiff filed a first amended complaint naming, among others, Detroit Edison Company as a defendant. Detroit Edison filed a motion for summary judgment, but on November 21, 1984, the trial judge denied that motion. Detroit Edison sought leave to appeal, and on January 24, 1985, this Court granted leave in Case No. 82112. The appeals have been consolidated.

Appellants contended that the "fireman's rule" should be applied to bar plaintiff's action. Defendants Weinstein and Modern also argued that they were not liable because plaintiff's decedent was a mere licensee. The trial court declined to adopt any version of the fireman's rule, and concluded that plaintiff's decedent was an invitee. We agree and affirm.

First, appellants Weinstein and Modern argue that the trial court erred when it ruled that they owed plaintiff's decedent the duty of care owed to an invitee. The duty owed by a landowner or occupier depends upon the status of the injured party at the time of the injury, Doran v. Combs, 135 Mich.App. 492, 495, 354 N.W.2d 804 (1984); Leep v. McComber, 118 Mich.App. 653, 657, 325 N.W.2d 531 (1982), lv. den. 417 Mich. 1005 (1983). The injured party may be an invitee, a licensee, or a trespasser, Preston v. Sleziak, 383 Mich. 442, 175 N.W.2d 759 (1970). An invitee is one who is on the owner's premises for a purpose mutually beneficial to both parties, Danaher v. Partridge Creek Country Club, 116 Mich.App. 305, 312, 323 N.W.2d 376 (1982); Socha v. Passino, 105 Mich.App. 445, 447, 306 N.W.2d 316 (1981). An individual is an invitee if his or her visit may reasonably be said to confer or anticipate a business, commercial, monetary or other tangible benefit to the occupant, Socha, supra, pp. 447-448, 306 N.W.2d 316; Leveque v. Leveque, 41 Mich.App. 127, 130, 199 N.W.2d 675 (1972). In Michigan, the concept of invitation is tested not only by the theory of economic benefit, but also upon the concept of invitation, Preston, supra, 383 Mich. p. 450, 175 N.W.2d 759; Leveque, supra, 41 Mich.App. p. 129, 199 N.W.2d 675. An owner or occupier of land owes a duty to an invitee on his or her land to exercise ordinary care and prudence to render the premises reasonably safe, Danaher, supra, 116 Mich.App. p. 312, 323 N.W.2d 376; Preston, supra, 383 Mich. p. 447, 175 N.W.2d 759.

A licensee is one who enters upon or uses another's premises with the express or implied permission of the owner or person in control thereof, Leep, supra, 118 Mich.App. p. 658, 325 N.W.2d 531. One who desires to be on the premises because of some personal, unshared benefit and who is merely tolerated on the premises by the owner is a licensee, Socha, supra, 105 Mich.App. p. 448, 306 N.W.2d 316; Leep, supra, 118 Mich.App. p. 663, 325 N.W.2d 531. A possessor of land is liable for physical harm caused to a licensee by a condition on the property only if the possessor knew or had reason to know of the condition, should have realized that an unreasonable risk of harm to the licensee was involved, should have expected that the licensee would not discover the danger, and failed to exercise reasonable care to make the condition safe or to warn the licensee of the condition and risk involved, and the licensee did not know or have reason to know of the condition or risk involved. Preston, supra, 383 Mich. p. 453, 175 N.W.2d 759.

Firefighters do not fit neatly into either category. See Prosser & Keeton, Torts, 5th ed., Ch. 10, Sec. 60-61, pp. 412-432. No published Michigan case has spoken to the status of firefighters entering upon premises to fight a fire. However, a panel of this Court has held that a police officer is a licensee, Reetz v. Tipit, Inc., 151 Mich.App. 150, 390 N.W.2d 653 (1986). We disagree with its conclusion. Generally, firemen are held to be licensees, Prosser,supra, pp. 429-430; Anno.: 11 A.L.R.4th 597, 601; 2 Restatement Torts 2d, Sec. 345, comment c, pp. 227- 228. However, some states consider them to be invitees, Murphy v. Ambassador East, 54 Ill.App.3d 980, 12 Ill.Dec. 501, 504, 370 N.E.2d 124, 127 (1977); Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 885-886 (1960); Strong v. Seattle Stevedore Co., 1 Wash.App. 898, 466 P.2d 545, 548-549 (1970).

We conclude that, under 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. See Preston, supra, 383 Mich. p. 450, 175 N.W.2d 759. It cannot be said that the firefighter is a mere licensee, on the premises solely for his or her own benefit. The trial court's ruling that plaintiff's decedent was an invitee was correct, and will not be disturbed by this Court. Consequently, the duty owed by defendants Weinstein and/or Modern to plaintiff's decedent was to use reasonable care and prudence to render the premises reasonably safe.

Second, all the appellants argue that plaintiff's claims are barred by the "fireman's rule". Where there is no legal duty, there can be no actionable negligence, Klimek v. Drzewiecki, 135 Mich.App. 115, 118, 352 N.W.2d 361 (1984). Appellants urge us to adopt a rule that no duty is owed to a firefighter in certain situations. The fireman's rule holds that because it is a firefighter's business to deal with the usual hazards involved in fighting fires, a firefighter cannot complain of negligence in the creation of the very occasion for his engagement, Berko v. Freda, 93 N.J. 81, 459 A.2d 663, 664 (1983). In other words, a firefighter who is injured while fighting a fire cannot sue a person who negligently caused that fire. See Steelman v. Lind, 97 Nev. 425, 634 P.2d 666, 667-668 (1981). The rule is an exception to the general principle that one owes a duty of reasonable care. See Walters v. Sloan, 20 Cal.3d 199, 142 Cal.Rptr. 152, 157, 571 P.2d 609, 614 (1977) (Tobriner, Acting Chief Justice, dissenting).

Regardless of the rationale invoked to support the rule, courts almost universally recognize that a fireman cannot recover when his or her complaint is based on the same conduct that initially created the need for the officer's presence in his or her official capacity, Pottebaum v. Hinds, 347 N.W.2d 642, 645 (Iowa, 1984); Anno.: 11 A.L.R.4th 597, 601. The Iowa court noted that the modern trend is not away from the rule but toward it, Pottebaum, supra, p. 644, but the State of Oregon recently abolished the rule, Christensen v. Murphy, 296 Or. 610, 678 P.2d 1210 (1984). This Court has been asked to adopt that rule in Michigan. Apparently, the question is one of first impression in this state.

Defendants rely on a number of policy arguments which courts have relied upon to support the fireman's rule. They contend that one who has knowingly and voluntarily confronted a hazard should not be able to recover for injuries sustained thereby; that firefighters are provided with compensation for injuries, and a tort recovery would be duplicative; that it would be burdensome to charge all who carelessly cause or fail to prevent fires with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created occurrences; and that individuals may be reluctant to summon firefighters, for fear of lawsuits.

The first argument is that a firefighter, in accepting the salary and fringe benefits offered for the job, assumes all normal risks inherent in the employment as a matter of law and thus may not recover from one who negligently creates such a risk. See Steelman, 97 Nev. 427-428, 634 P.2d 666; Armstrong v. Mailand, 284 N.W.2d 343, 350 (Minn., 1979).

Appellees argue that because the doctrine of assumption of risk...