McGee v. Adams Paper & Twine Co.

• Decision Date: 07 July 1966
• Citation: 26 A.D.2d 186,271 N.Y.S.2d 698
• Parties: Ann McGEE, as Administratrix of the goods, chattels and credits that were of Michael G. McGee, Deceased, Irene Devine, as Administratrix of the goods, chattels and credits that were of James Devine, Deceased, Eleanor Tracy, as Administratrix of the goods, chattels and credits that were of Michael R. Tracy, Deceased, Alice Brusati, individually and as Administratrix of the goods, chattels and credits that were of Louis Brusati, Deceased, Jack Brier, as Administrator of the estate of Bernard Blumenthal, Deceased, and as Guardian ad Litem of Sheila Blumenthal, an infant, Plaintiffs-Appellants-Respondents, and Gloria Schmid, as Administratrix of the goods, chattels and credits of William C. Schmid, Deceased, Plaintiff-Respondent, v. The ADAMS PAPER AND TWINE CO., Inc., Isaac Elkins, Rae Elkins, Philip S. Elkins and Theodore Elkins, doing business as the Elkins Company, and The Elkins Co., Defendants-Appellants, and The City of New York, The Fire Commissioner of the City of New York and the Commissioner of Buildings of the City of New York, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 698

271 N.Y.S.2d 698

26 A.D.2d 186

Ann McGEE, as Administratrix of the goods, chattels and

credits that were of Michael G. McGee, Deceased, Irene

Devine, as Administratrix of the goods, chattels and credits

that were of James Devine, Deceased, Eleanor Tracy, as

Administratrix of the goods, chattels and credits that were

of Michael R. Tracy, Deceased, Alice Brusati, individually

and as Administratrix of the goods, chattels and credits

that were of Louis Brusati, Deceased, Jack Brier, as

Administrator of the estate of Bernard Blumenthal, Deceased,

and as Guardian ad Litem of Sheila Blumenthal, an infant,

Plaintiffs-Appellants-Respondents, and Gloria Schmid, as

Administratrix of the goods, chattels and credits of William

C. Schmid, Deceased, Plaintiff-Respondent, v. The ADAMS PAPER AND TWINE CO., Inc., Isaac Elkins, Rae

Elkins, Philip S. Elkins and Theodore Elkins, doing business

as the Elkins Company, and The Elkins Co.,

Defendants-Appellants, and The City of New York, The Fire

Commissioner of the City of New York and the Commissioner of

Buildings of the City of New York, Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

July 7, 1966.

Robert E. Curran, New York City, of counsel (Kevin Moloney, New York City, on the brief; Edward Sweeney, New York City, attorney) for appellants.

Arthur C. Parker, New York City, of counsel (Levine & Broder, Bernstein, Weiss, Tomson, Hammer & Parter, Gregory Peck, New York City, attorneys) for plaintiffs-respondents-appellants.

Lawrence J. Mahoney, New York City, of counsel (Robert J. Giuffra, New York City, on the brief; Dougherty, Ryan, Mahoney & Pellegrino, New York City, attorneys) for respondent Alice Brusati.

Morris Pottish, New York City, of counsel (James J. Egan, Jr., and Irving A. Silverman, New York City, on the beief; James J. Egan, New York City, attorney) for respondent Gloria Schmid.

William A. Marks, New York City, of counsel (Seymour B. Quel, New York City, on the brief; J. Lee Rankin, Corporation Counsel, attorney) for Municipal Respondents.

Before BOTEIN, P.J., and RABIN, STEVENS and EAGER, JJ.

EAGER, Justice.

These actions were brought to recover for alleged wrongful deaths of two firemen and four fire underwriter patrolmen resulting from the collapse of a building during a fire. The plaintiffs have recovered substantial judgments against the building owner and the lessee, but complaints of certain of the plaintiffs against the City of New York, the Fire Commissioner of the City, and the Commissioner of Buildings of the City were dismissed by the trial court at the close of the case. The defendants building owner and lessee appeal from the judgments entered in favor of plaintiffs, and plaintiffs appeal from the judgments of dismissal rendered in favor of the City and its Commissioners.

The building, located at 137 Wooster Street, was owned by The Adams Paper & Twine Co., Inc. (Adams) and was leased to a partnership, The Elkins Co. (Elkins). Both the owner and the lessee were controlled by the individual defendants, members of the Elkins family, who were active in the business of processing and sale of paper goods.

The building was six stories in height, with the ground floor constituting the processing and shipping area: the second floor comprised largely office space; and the upper four floors were used principally for storage of various types of commercial paper.

The fire occurred on February 14, 1958. It apparently started on the fifth floor and was discovered at about 6:20 p.m. when an alarm was given. At the time of discovery, an employee, who was climbing the stairway to the fourth floor, gave warning to the defendants, Philip and Theodore Elkins and to the employees in the building. At about the same time, sheets of flame were observed shooting from the fifth floor windows. The firemen arrived within three minutes after the alarm. One of the first firemen to reach the scene testified that the 'fire was at that time coming out of three or four or perhaps five windows'. Within 15 to 20 minutes after the firemen began their work of fighting the fire, the building collapsed, leaving only the front wall and a stairway standing. All of the plaintiffs' intestates were killed in the collapse of the building.

The deceased, Schmid and Blumenthal, were full time employees of the City Fire Department. When the building collapsed, they were attempting to escape from the roof of the building where they had been engaged in an unsuccessful effort to open a scuttle for the purpose of ventilating the building.

The deceased, McGee, Devine, Tracy and Brusati, were fire underwriter patrolmen employed by the New York Board of Fire Underwriters. At the time of the building collapse, they were in the building and engaged in the spreading of tarpaulins on the third floor for the purpose of protecting the property of the building occupants from water and falling debris.

Alleged common law cases against building owner and lessee

The plaintiffs, in support of their alleged cases for recovery against Adams and Elkins, present the following several grounds for liability, to wit: (1) the alleged careless smoking by employees on the upper floors of the premises, including alleged violation of Administrative Code of the City of New York provisions, it being contended that the fire was caused by employee smoking (it was so found by the Fire Department); (2) the installation and maintenance on the fifth floor of a 'home-made recreation room' constructed with scraps of wood and cardboard, in which room employees engaged in smoking and which room was heated by an inadequately protected electric heater with open grill, it being contended that the said room was installed and maintained in violation of Building and Fire Department rules and regulations (but it is uncertain that the fire originated in such room); (3) the alleged overloading of the fifth floor, it being contended that paper in excess of the maximum weight load limit fixed by the Building Department was stored on such floor; (4) the failure of the defendants to give any warning of the alleged unusual hazard arising because of the paper storage on the fifth floor and its absorbent qualities, it appearing that the pouring of water into this floor during the fighting of the fire may have increased six-fold the weight on the floor; (5) the alleged failure of these defendants to use reasonable diligence to extinguish the fire following discovery thereof and (6) as to the firemen Schmid and Blumenthal, the failure to maintain the roof scuttle in an openable condition, as a result of which it is contended that these firemen were unduly detained on the roof in their efforts to ventilate the building.

It is generally agreed that the negligence of an owner, lessee or occupant of a building, in relation to the cause of a fire, shall not be accepted as a basis for liability for injury or death to a paid fireman, or to a paid underwriter fire patrolman, occurring during his performance of his duties in the fighting of the fire or the protecting of property during the fire. Firemen and fire patrolmen are bound to anticipate that many fires do start from carelessness on the part of someone; and, absent special statutory provision, liability may not be predicated on a theory that the building owner, lessee or occupant owes a duty to paid firemen or to underwriter fire patrolmen to exercise care to eliminate a need for the special services for which they are trained and paid. Once a fire starts and the firemen or fire patrolmen arrive on the scene, they assume the usual risks inherent in their work, including those arising from contact with flames or smoke, or from the collapse in the ordinary course of the fire of ceilings, walls and floors of buildings. Where liability is found, it must generally rest upon causes other than those having to do with the inception of the fire and the ordinary hazards pertinent to the fighting and the spreading of the fire and the protecting of property therefrom. (See Anno., 13 A.L.R. 637, 141 A.L.R. 584 and 86 A.L.R.2d 1205, and cases cited; see, also, Raymond v. Republic L., H. & P. Co., 262 N.Y. 498, 188 N.E. 37; Lofgren v. Protane Corp., 284 N.Y. 709, 31 N.E.2d 46; Farley v. Mayor, etc., City of New York, 152 N.Y. 222, 227, 46 N.E. 506, 507; Beedenbender v. Midtown Properties, 4 A.D.2d 276, 164 N.Y.S.2d 276; Sicolo v. Prudential Sav. Bank of Brooklyn, N.Y., 2 Misc.2d 289, 291, 151 N.Y.S.2d 295, 296--297, revd. 4 A.D.2d 790, 165 N.Y.S.2d 222, revd. on other grds., 5 N.Y.2d 254, 184 N.Y.S.2d 100, 157 N.E.2d 284; Krauth v. Geller, 31 N.J. 270, 157 A.2d 129.)

Accordingly, here, the negligence, if any, of Adams and Elkins, with relation to alleged employee smoking and in connection with the installation and maintenance of the recreation room, is not available to support the verdicts for plaintiffs.

Likewise, there is no basis for a case in the alleged failure of the defendants themselves and their employees to use reasonable care in an attempt to quell or contain the fire after discovery thereof. Their alleged want of diligence in this connection, if any, occurring prior to or at about the time of the arrival of the firemen, including their failure to use available fire extinguishers, stands on no different footing than alleged carelessness in the cause of the fire. Furthermore, there is no reasonable basis in the record for a finding that the efforts of the defendants would have helped in any way to bring under control the particular fire which, by the time of discovery, was raging fiercely on the fifth floor. Of course, when the firemen arrived on the scene, they took control of the matter of the fighting of the fire and the defendants were then under no duty to engage in independent efforts to extinguish or slow down the fire.

Where, however, a serious fire rages, irrespective of the cause, the owner, lessee or occupant must anticipate that...