Rishel v. Eastern Airlines, Inc., No. 84-187

• Court: Florida District Court of Appeals
• Writing for the Court: BASKIN; NESBITT; FERGUSON
• Citation: 466 So.2d 1136,10 Fla. L. Weekly 858
• Decision Date: 26 March 1985
• Docket Number: No. 84-187
• Parties: 10 Fla. L. Weekly 858 Irene RISHEL and John Rishel, her husband, Appellants, v. EASTERN AIRLINES, INC., a foreign corporation, Appellee.

Page 1136

466 So.2d 1136 10 Fla. L. Weekly 858 Irene RISHEL and John Rishel, her husband, Appellants,
v.
EASTERN AIRLINES, INC., a foreign corporation, Appellee. No. 84-187. District Court of Appeal of Florida,
Third District. March 26, 1985.
Rehearing Denied April 26, 1985.

Page 1137

Gerald E. Rosser, Miami, for appellants.

Thornton, David & Murray and Sara Lawrence, Miami, for appellee.

Before NESBITT, BASKIN and FERGUSON, JJ.

BASKIN, Judge.

Police officer Irene Rishel and her husband John Rishel filed an action in which they asserted that an Eastern Airlines [Eastern] gate agent negligently failed to warn police officers of the violent propensities of an intoxicated passenger. The agent summoned police for assistance in removing the intoxicated passenger from the airplane. Officer Rishel was injured when the passenger attacked her. In her complaint, she alleged that Eastern "knew or should have known of the propensity to be violent of an intoxicated individual," and that Eastern's failure to warn her of the danger amounted to gross negligence. Her husband, John Rishel, sued for loss of consortium. Subsequently, the trial court dismissed the second amended complaint, finding that the Rishels had failed to state

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a cause of action. We affirm upon a holding that the "fireman's rule" operates as a bar to the negligence action alleged in appellants' second amended complaint.

The fireman's rule, as generally framed, provides that an owner or occupant of property is not liable to a police officer or a firefighter for injuries sustained during the discharge of the duties for which the policeman or fireman was called to the property. See Price v. Morgan, 436 So.2d 1116 (Fla. 5th DCA 1983), review denied, 447 So.2d 887 (Fla.1984); Whitten v. Miami-Dade Water & Sewer Authority, 357 So.2d 430 (Fla. 3d DCA 1978). Contrary to appellants' assertion, the fireman's rule, as applied in Florida, is not limited to cases involving a negligent condition on the premises. This court has held that absent a showing of willful and wanton misconduct, neither a fireman nor a policeman may recover from a property owner for injuries arising out of the discharge of professional duties, even though the injuries have not occurred on the premises. Wilson v. Florida Processing Co., 368 So.2d 609 (Fla. 3d DCA 1979); Whitten.

As the court stated in Whitten, 357 So.2d at 432:

[T]he sole duty owed [a policeman or fireman] by the owner or occupant of the premises is to refrain from wanton negligence or willful conduct and to warn him of any defect or condition known to the owner or occupant to be dangerous, if such danger is not open to ordinary observation by the [policeman or fireman].

It is axiomatic that "[t]o sustain a cause of action in negligence, a complaint must allege ultimate facts which establish a relationship between the parties giving rise to a legal duty on the part of the defendant to protect the plaintiff from the injury of which he complains." Ankers v. District School Board of Pasco County, 406 So.2d 72, 73 (Fla. 2d DCA 1981). It follows that if no legal duty exists, there can be no cause of action for negligence. See Price at 1119.

Appellants have failed to set forth a cause of action for negligence because, under the fireman's rule, Eastern had no legal duty to protect police officer Rishel from the injuries she allegedly sustained. Furthermore, the complaint is devoid of allegations supporting a claim for wanton negligence so as to bring it within the exception to the fireman's rule. We begin with the proposition that in considering an order on a motion to dismiss, our obligation is to...