Price v. Morgan

• Decision Date: 08 September 1983
• Docket Number: No. 82-393,82-393
• Citation: 436 So.2d 1116
• Parties: Juanita PRICE, as personal representative of the Estate of William L. Price, deceased, Appellant, v. Joseph MORGAN, d/b/a Seminole Pet Supply and Shelby Mutual Insurance Company of Shelby, Ohio, a foreign insurance corporation, Appellees.
• Court: Florida District Court of Appeals

Page 1116

436 So.2d 1116

Juanita PRICE, as personal representative of the Estate of William L. Price, deceased, Appellant, v. Joseph MORGAN, d/b/a Seminole Pet Supply and Shelby Mutual

Insurance Company of Shelby, Ohio, a foreign

insurance corporation, Appellees.

No. 82-393.

District Court of Appeal of Florida,

Fifth District.

Sept. 8, 1983.

James C. Fisher, Altamonte Springs, for appellant.

Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for appellees.

ORFINGER, Chief Judge.

The issue on appeal is whether the appellant's fourth amended complaint stated a cause of action in its claim for damages arising from the death of appellant's decedent, a fireman, resulting from injuries incurred while attempting to extinguish a fire. We affirm.

To put the issues in proper perspective, a brief review of the allegations of the fourth amended complaint (the complaint) is necessary. It alleges that defendant Morgan is the owner of Seminole Pet Supply in Sanford, Florida, and was insured by defendant Shelby Mutual Insurance Company (Shelby). On August 1, 1979, a fire broke out at Seminole Pet Supply. Responding to the fire as an off-duty fireman along with other on-duty firemen, decedent William Price was fighting the fire from outside of the premises, not aware of certain combustible materials inside the store. While so engaged, Price was killed when a wall exploded and collapsed.

In the first count of the complaint, it was alleged that (a) Morgan or his agents maintained the store with wanton negligence by allowing numerous flammable and combustible substances on the premises, presenting a serious fire hazard; (b) that the defendant or his agents failed to adequately inspect the store to determine if the substances presented a fire hazard; (c) that the defendant or his agents failed to adequately warn the decedent of the danger presented by the flammable substances kept in his store; (d) that the defendant or his agents failed to secure the premises to prevent unknown persons from entering and starting a fire; and (e) that the defendant or his agents, with wanton negligence, started the fire in the Seminole Pet Supply "as herein alleged." The complaint alleged further that Morgan had violated his duty to Price, even as a licensee, by such wilful and wanton negligence, proximately causing his death.

Count II of the complaint alleges essentially the same facts, but alleges that in responding to the fire, Price was an invitee, thus owed the duty of reasonable care, and that defendant was negligent in the doing of those acts referred to in Count I, thus causing decedent's injury and death.

Appellant argues that the trial court erred in dismissing the fourth amended complaint without further leave to amend, although she could not advise the trial court, when asked, what further amendment could be made, nor are we so advised. Appellant further argues that in any event, the last complaint states a cause of action.

The principal issue in any negligence action is whether the injury resulted from defendant's violation of a legal duty owed to the plaintiff. The threshold question, therefore, is whether the defendant had a legal duty to the plaintiff and, if so, the extent of that duty. Navajo Circle, Inc. v. Development Concepts Corp., 373 So.2d 689 (Fla. 2d DCA 1979). If no legal duty is abrogated, there can be no cause of action for negligence. Rice v. Florida Power & Light Co., 363 So.2d 834 (Fla. 3d DCA 1978).

We first observe that although it is alleged that decedent was an off-duty fireman, it is also alleged that he responded to the fire along with other on-duty firemen, and was injured while discharging his duty outside of the premises when a wall exploded and collapsed. In this regard, his status was the same as that of an on-duty fireman so long as he was discharging his duty as a fireman in attempting to extinguish the fire. See Nastasio v. Cinnamon, 295 S.W.2d 117 (Mo.1956). What then is the legal status of a fireman when he is on or outside of the premises and is fighting a fire to which he has responded?

In an early case, the Florida supreme court held, albeit in dictum, that firemen and policemen while on premises in the fulfillment of their duties as such, are licensees, to whom the property owner has only the duty to refrain from wilful or wanton injury. Fred Howland, Inc. v. Morris, 143 Fla. 189, 196 So. 472 (1940).

In Romedy v. Johnston, 193 So.2d 487 (Fla. 1st DCA 1967), the First District Court of Appeal, while recognizing the language in Fred Howland as dictum, nevertheless agreed that a fireman upon the premises for the purpose of extinguishing a fire is a licensee, and the duty of the owner is to refrain from wilfully and wantonly injuring him. While not clearly stated, it can only be concluded from Romedy that this duty towards the licensee arises when the fireman comes on the premises in response to the fire call, as liability does not arise due to the negligent acts of the owner in creating or maintaining a condition on his premises which contributes to the cause of the fire and which necessitates the presence of the fireman on the premises. Id. at 490.

In Adair v. The Island Club, 225 So.2d 541 (Fla. 2d DCA 1969), the Second District Court of Appeal applied the same rule to a case where a policeman was injured by inhalation of noxious gas when he was attempting to remove a leaking gas tank from the premises. Citing Romedy, the court held the policeman to be a licensee while discharging his duties, and that

"It is an established rule of law in this jurisdiction that the owner of premises owes to a licensee the duty to refrain from wanton negligence or willful misconduct which would injure the licensee. It is also held that if the owner has knowledge of pitfalls, booby traps, latent hazards, or other similar dangers, then a failure to warn such licensee could under proper circumstances amount to wanton negligence, but there must be knowledge of the danger by the owner combined with knowledge that the licensee is about to be confronted with the danger."

225 So.2d at 543-544. Finding insufficient allegations to show a breach of this duty, the court sustained the dismissal of the complaint for failure to state a cause of action.

In Hall v. Holton, 330 So.2d 81 (Fla. 2d DCA 1976), the Second District Court of Appeal followed its holding in Adair, disagreeing with the argument that the intervening case of Wood v. Camp, 284 So.2d 691 (Fla.1973), had the effect of elevating the status of the policeman involved there to that of invitee. Alluding to the classifications announced in Wood v. Camp, the court concluded that the policeman in question, when entering a boarded-up building for the purpose of investigating the presence of vagrant trespassers, was an uninvited licensee to whom the owner owed the duty to refrain from wanton negligence or wilful misconduct which would injure him, to refrain from intentionally exposing him to danger, and to warn him of a latent defect or condition known to the landowner to be dangerous when such danger is not open to ordinary observation by the licensee. Before the duty to warn of a hidden danger arises, however, the presence of the licensee on the premises must be known or reasonably expected by the owner. Hall at 83. Finding that the facts could be susceptible of the inference that the landowner could have anticipated the presence of the police, thus raising a duty to warn, the Hall court found a jury issue presented.

In Whitten v. Miami-Dade Water & Sewer Authority, 357 So.2d 430 (Fla. 3d DCA 1978), in a factual situation somewhat similar to that here, the Third District Court of Appeal, apparently for the first time in Florida, followed the so-called "fireman's rule" and applied it to bar recovery to firemen who were injured while outside the premises where they had responded to the emergency. Two policemen and four firemen had responded to an emergency call at appellee's water plant, and discovered a heavy chlorine gas fog enveloping the area. After evacuating the nearby residents, one of the appellants entered the premises and eventually discovered and corrected the gas leak. In fulfilling their duties, however, all of the policemen and firemen were injured as a result of inhaling the chlorine gas. Contending that appellee was strictly liable because of the dangerous quality of the gas, appellants sought damages and appealed an adverse summary judgment.

The...