Phillips v. Hallmark Cards, Inc.

• Decision Date: 16 December 1986
• Docket Number: No. 68167,68167
• Citation: 722 S.W.2d 86
• Parties: Moen PHILLIPS, Plaintiff-Appellant, v. HALLMARK CARDS, INC., Defendant-Respondent.
• Court: Missouri Supreme Court

Page 86

722 S.W.2d 86

Moen PHILLIPS, Plaintiff-Appellant, v. HALLMARK CARDS, INC., Defendant-Respondent.

No. 68167.

Supreme Court of Missouri En Banc.

Dec. 16, 1986.

Rehearing Denied Jan. 13, 1987.

James W. Jeans, Sr., Platte City, Robert C. Gordon, Kansas City, for Moen Phillips.

Robert J. Sisk, John M. Townsend, Norman C. Kleinberg, Ronald A. Stern, New York City, Robert L. Driscoll, John C. Aisenbrey, Kansas City, for Hallmark Cards, Inc.

John C. Cozad, Rob Hornstein, Kansas City, for amicus curiae Norman A. Caron.

W.H. Bates, John H. Calvert, Kansas City, for Clarence M. Kelley.

George E. Leonard, Jennifer Gille Bacon, Gregory M. Bentz, Kansas City, for Doctors F. David Fortin, et al.

George E. Leonard, Jennifer Gille Bacon, Kansas City, for Metropolitan Ambulance Services Trust.

HIGGINS, Chief Justice.

Moen Phillips appeals the dismissal of his petition for damages for personal injuries suffered during rescue efforts. The trial court ruled that the "fireman's rule" barred plaintiff's cause of action. The appellate court, Western District, reversed the judgment of dismissal. One judge dissented and certified the cause to this Court under Mo. Const. Art. V, § 10. Affirmed.

Moen Phillips sued Hallmark Cards, Inc., owner of the Hyatt Regency Hotel in Kansas City, Missouri, for damages for personal injuries suffered while rescuing trapped victims of the collapse of the hotel skywalks on July 17, 1981. Plaintiff, a Kansas City fireman summoned to the disaster, charged that the defendant's negligence in design, construction, and inspection of the skywalks created an unreasonable risk that the skywalks would collapse causing death, physical injury, and emotional distress to patrons of the hotel, employees, rescuers and others or that the defendant knew or should have known of the risk. Plaintiff alleged as a result that he suffered permanent mental and physical injuries and emotional distress which required hospitalization.

Defendant moved to dismiss the action for failure to state a claim under Rule 55.27 alleging, among other things, that the fireman's rule precludes plaintiff from recovery for injuries incurred during rescue operations.

Appellant contends the trial court improperly ruled that the fireman's rule foreclosed plaintiff's cause of action. He argues that the duty owed to plaintiff by defendant is to be determined not by his status as a fireman but by the foreseeability that injury might result to a rescuer by reason of negligent design, construction and maintenance of a structure open to the public.

Respondent, in support of the judgment of dismissal, asserts that the fireman's rule is the law in Missouri and argues that the rule is based on sound public policy; and that because the plaintiff alleges that Phillips was acting as "a fireman of the City of Kansas City, Missouri" at the time of his injury, the circuit court was required to dismiss his petition under the fireman's rule. Respondent cites Nastasio v. Cinnamon, 295 S.W.2d 117 (Mo.1956), for application of the fireman's rule in Missouri. Nastasio classifies firemen acting in the course of their duties as licensees. Id. Appellant asserts that the fireman's rule has never been established in Missouri case law, and that the words "fireman's rule" never appear in Nastasio. He argues that even if the fireman's rule is recognized in Missouri, the rule would apply to bar a cause of action only where the fireman is acting within the course of his duties; and that where, as in this case, the fireman volunteers to perform extraordinary acts already beyond his duty as a result of the property owner's negligence, the fireman's action for damages is not barred.

Courts in many states classify firemen who enter upon premises in the course of their duties as licensees. The owner or occupier of land is required only to refrain from wantonly or willfully injuring a licensee. The policy behind this status classification was applied in Baxley v. Williams Constr. Co., 98 Ga.App. 662, 106 S.E.2d 799 (1958), where the court dismissed the petition of a fireman for personal injuries incurred when he fell into an unlighted excavation at a construction project during a fire. The court held that to require an owner or occupier of property to exercise the high degree of care owed to invitees "would be an intolerable burden which it is not in the best interest of society to impose." This line of cases emphasizes that the owner could not have denied the fireman entry onto the property. The fireman's right to enter the premises is based more on permission of law than on the invitation of an owner.

Some jurisdictions classify the fireman as an invitee. In Strong v. Seattle Stevedore Co., 1 Wash.App. 898, 466 P.2d 545 (1970), the court held that a fireman killed while fighting a fire at the defendant's place of business was an invitee owed a duty of reasonable care. The court reasoned that the landowner derived an economic benefit from the fireman's actions; therefore, the fireman is properly classified as an invitee. Recovery was eventually denied to the fireman, however, because the court ruled that he had a greater knowledge of the dangers presented by the fire than the defendant's employees.

Other courts refuse to classify firemen as either licensees or invitees and leave their status as sui generis. These courts believe that artificially imposed labels do not further justice; therefore, firemen should be classified as neither invitees nor licensees. Appellant Phillips asserts that this is the proper classification for firemen. He argues that the consideration is not status but the foreseeability that injury may result from the defendant's negligent act. Hoover's Dairy, Inc. v. Mid-America Dairymen, 700 S.W.2d 426, 431 (Mo. banc 1985). However, in Buren v. Midwest Industries, Inc., 380 S.W.2d 96 (Ky.App.1964), although the court still held that the fireman's status is sui generis, the court denied the fireman recovery for injuries suffered while fighting the blaze. The court reasoned that it was the nature of the fireman's work to deal with the particular hazard. Although the owner was negligent, the fireman cannot be heard to complain of the precise risk for which the public pays him to undertake.

Some states have created exceptions to the application of the fireman's rule. Hawkins v. Sunmark Industries, Inc., No. 84-CA-1952-MR, slip op. (Ky.Ct.App. Nov. 8, 1986), held that the fireman's rule should not be permitted to be used as a defense by the builder or designer of defective property which causes or exacerbates the disaster because they are outside of the class of persons for whose benefit fire protection is extended. Other states have developed exceptions to the rule where the owner or occupier breaches a statute or ordinance requiring safety guards or precautions. Aravanis v. Eisenberg, 237 Md. 242, 206 A.2d 148 (1965); Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881 (1960).

Arguments in favor of the fireman's rule emphasize public policy considerations and assumption of the risk. These arguments are well expressed in Flowers v. Sting Security, 62 Md.App. 116, 488 A.2d 523 (1985), cert. granted, 303 Md. 418, 494 A.2d 211, where the court denied recovery for personal injuries to a volunteer firefighter who fell twelve stories down an open elevator shaft during the course of a rescue operation. The arguments emerging are twofold. First, courts reason that because it is the duty of the fireman to cope with the hazards inherent in firefighting he should not be heard to complain when injured in the line of duty. Flowers, 488 A.2d at 534.

Second, courts hold that "especially hazardous governmental functions, such as firefighting and policing, are the collective responsibility of society as a whole and are not functions relegated to dependence upon ordinary tort recovery." Id. at 527. They stress that the statutory remedy of worker's compensation is applied to aid injured firemen and their...