Pearson v. Canada Contracting Co., Inc.

• Citation: 349 S.E.2d 106,232 Va. 177
• Decision Date: 10 October 1986
• Docket Number: 840521,Nos. 830982,s. 830982
• Parties: Cecil W. PEARSON v. CANADA CONTRACTING COMPANY, INC., et al. JAC BOODEN ORTHOPEDIC SUPPLY COMPANY, INC. v. Richard M. JONES. Record
• Court: Virginia Supreme Court

Page 106

349 S.E.2d 106

232 Va. 177

Cecil W. PEARSON v. CANADA CONTRACTING COMPANY, INC., et al.

JAC BOODEN ORTHOPEDIC SUPPLY COMPANY, INC. v. Richard M. JONES.

Record Nos. 830982, 840521.

Supreme Court of Virginia.

Oct. 10, 1986.

Robert C. Metcalf (Parker, Pollard & Brown, P.C., Richmond, on brief), for appellant No. 830982.

Frank B. Miller, III (Roger L. Williams, Sands, Anderson, Marks & Miller, Richmond, on brief), for appellee Canada Contracting Co., Inc.

No brief or argument for appellee C.S. Lewis.

James H. Flippen, III (Andrew C. Mitchell, Jr., Breeden, MacMillan & Green, Norfolk, Cullen, Clark, Insley & Hanson, Salisbury, Md., on briefs), for appellant No. 840521.

William D. Breit (Breit, Rutter & Montagna, on brief), for appellee No. 840521.

Present: All the Justices.

COCHRAN, Justice.

These two appeals present one dispositive question: what duty of care is owed by an owner or occupier of land to a fireman or policeman injured when he comes on the premises in the performance of his official duties?

I.

On June 25, 1979, about 9:30 p.m., Cecil W. Pearson, employed as a fireman by the City of Richmond, responded to a reported fire in a building on Brown's Island in Richmond. He was injured when he fell to the basement through a hole in the floor. In an amended motion for judgment, Pearson sought to recover damages for his personal injuries from Ethyl Corporation, owner of the property, Canada Contracting Company, Inc. (Canada), the contractor engaged in demolition of the building, and C.S. Lewis, the subcontractor engaged in cutting and removing metal from the building. Pearson alleged in separate counts negligence, negligence per se, and nuisance. Over his objection, the trial court sustained certain defendants' demurrers and dismissed the negligence and negligence per se counts. On motion of Pearson, the nuisance count was also dismissed.

With leave of court, Pearson filed a second amended motion for judgment, alleging that Canada and Lewis had removed steel guard rails formerly protecting the hole through which he fell, that they had covered and obscured the hole by material inadequate to support his weight, that this condition was known to all three defendants and was a man-made trap or hidden danger, and that defendants knew or should have known he or other firefighters had been and would probably be coming on the premises at night to fight fires. Pearson alleged the defendants breached a duty to warn him of the hidden danger and thereby proximately caused his injuries. Defendants filed separate demurrers and grounds of defense. Thereafter, Ethyl Corporation was dismissed as a party defendant upon Pearson's execution of a covenant not to sue.

The trial court fashioned a general rule, patterned after the duty owed to licensees, of limited liability to persons entering land under a privilege, such as policemen and firemen. ¹ Cf. Restatement (Second) of Torts §§ 342, 345 (1965). Creating an exception to this rule, however, the court further restricted the duty owed in cases involving premises on which construction or demolition work is under way by requiring the possessor of property to warn of a dangerous condition only if he knows the privileged person is on the premises. ² Applying this exception, the court sustained the defendants' demurrers and dismissed the action.

II.

Richard M. Jones, a police officer employed by the City of Norfolk, brought an action against Jac Booden Orthopedic Supply Company, Inc. (Booden), for injuries sustained in the performance of his duties on the Booden property. Jones alleged that Booden was negligent in the operation of its premises. A jury awarded Jones $3,000 in damages and the trial court entered judgment on the verdict.

There was no material conflict in the evidence. Jones and two other police officers responded to a report of a burglary at a church behind the Booden premises about 5:15 p.m. on August 9, 1982. Finding the church had been broken into, the officers searched the surrounding area. Jones ascended a stairway at the rear of the Booden property, crossed the wooden platform at the top of the stairs, and went on the Booden roof to look for a suspect or evidence of the crime. When he returned to the platform, he informed an officer below that the roof was clear. As Jones stood on the platform, it collapsed and he was injured in falling.

The stairway, set back about eight feet from the sidewalk, did not look like a front entrance and was "obviously a rear entrance to the roof area." The stairs, made of steel, formerly had led to a second floor apartment, but this had not been occupied since 1965. At the time Jones fell, the stairs had no apparent purpose. Previously, they had been roped off to bar intruders, but when Jones used them they contained no rope, barricade, or warning signs.

Police had once apprehended a criminal suspect on the Booden roof, and Jones and other officers had been on the roof in the past while making routine police investigations. No one at Booden was aware of the prior arrest, however, or knew that police officers from time to time used the stairs to go to the roof.

Prior to Jones's fall, no defects in the wooden platform had been observed by Jones, by other officers accompanying him, or by Booden employees who had been on the platform. There was evidence, however, that wood from the platform which the officer examined after the accident was rotten.

The trial court, after denying Booden's motion to strike the evidence, granted an instruction on the duty of care owed to Jones as a licensee. ³ It refused Booden's proffered instruction identical to the general rule announced by the trial court in the Pearson case. See supra note 1. The court also refused an alternative instruction offered by Booden on the duty owed to Jones as a bare licensee. ⁴

III.

We have held that firemen may not recover for another's negligence in setting a fire, concluding that firemen assume the risks of the usual hazards involved in firefighting, regardless of the origin of the fire. C & O Railway v. Crouch, 208 Va. 602, 608-09, 159 S.E.2d 650, 655 (1968). We have not been previously called upon, however, to determine the extent of an occupier's liability to firemen or policemen for injuries resulting from risks beyond those inherently involved in firefighting or police work.

Cases addressing this issue have reached varied results, in large part because of the difficulty in placing firemen and policemen in any of the traditional categories of persons entering land of another--trespassers, licensees, or invitees. A trespasser is one who unlawfully enters the land of another. See Richmond Bridge Corp. v. Priddy, 167 Va. 114, 118, 187 S.E. 518, 519 (1936). A licensee is one who enters for his own convenience or benefit with the knowledge and consent, express or implied, of the owner or occupier. See, e.g., Bradshaw v. Minter, 206 Va. 450, 452, 143 S.E.2d 827, 828-29 (1965) (social guest is licensee, not invitee, regardless of existence of express invitation); Ingle v. Clinchfield R. Co., 169 Va. 131, 137, 192 S.E. 782, 784 (1937) (owner's silent acquiescence in repeated use made trespassers licensees); Ches. & O.R. Co. v. Corbin's Adm'r., 110 Va. 700, 702-03, 67 S.E. 179, 180 (1910) (known use of railbed by general public with tacit consent of railroad company made users licensees). And an invitee is one who enters pursuant to the express or implied invitation of the owner or occupier other than for a social purpose or for his own convenience. See, e.g., Colonial Nat. Gas v. Sayers, 222 Va. 781, 784, 284 S.E.2d 599, 601 (1981) (tenant using common area was invitee); City of Richmond v. Grizzard, 205 Va. 298, 302, 136 S.E.2d 827, 830 (1964) (implied invitation existed where premises thrown open to public and visitor entered for purpose for which premises open); Williamsburg Shop v. Weeks, 201 Va. 244, 246, 110 S.E.2d 189, 191 (1959) (customer in department store was invitee).

Policemen and firemen, however, do not fit into any of these categories; they enter premises as of right, under a privilege based on a public purpose. They clearly are not trespassers. Nor can they be classified as licensees or invitees, who enter with consent or invitation of the occupant, as consent and invitation are irrelevant to a policeman's or a fireman's privileged entry.

In Crouch, we held the fireman to be "in a class of his own," or sui generis, "because of the public nature of his rights and duties." 208 Va. at 608, 159 S.E.2d at 655. We reaffirm this classification and we hold that it includes policemen as well as firemen. Firemen and policemen may, under certain circumstances in the course of their duties, enter property as licensees or invitees. In the present cases, however, the fireman and the policeman occupied neither status.

IV.

Some jurisdictions have abolished the distinction between licensees and invitees and established reasonable care as the standard owed by occupiers to firemen and policemen. See, e.g., Bartholomew v. Klingler Co., 53 Cal.App.3d 975, 980-81, 126 Cal.Rptr. 191, 193-94 (1975) (policeman injured in fall through ceiling during investigation of possible burglary); Mounsey v. Ellard, 363 Mass. 693, 707-08, 297 N.E.2d 43, 51-52 (1973) (abolishing licensee-invitee distinction and creating common duty of reasonable care to all lawful visitors in case involving injury to policeman who fell on accumulation of ice at defendant's residence); Armstrong v. Mailand, 284 N.W.2d 343, 350 (Minn.1979) (landowner owed fireman, killed by explosion of gas storage tank, duty of reasonable care, except where, as here, fireman primarily assumed a risk apparent as part of firefighting). Other courts have reached the same result by labeling policemen and firemen as invitees in order to impose on occupiers an affirmative duty of reasonable care in maintaining the premises. See, e.g., Dini v. Naiditch, 20 Ill.2d 406, 415-16, 170 N.E.2d 881,...