Romedy v. Johnston, I-11

• Decision Date: 05 January 1967
• Docket Number: No. I-11,I-11
• Citation: 193 So.2d 487
• Court: Florida District Court of Appeals
• Parties: Gladys R. ROMEDY, Appellant, v. Wm. H. JOHNSTON et ux., et al., Appellees.

Page 487

193 So.2d 487

Gladys R. ROMEDY, Appellant, v. Wm. H. JOHNSTON et ux., et al., Appellees.

No. I-11.

District Court of Appeal of Florida, First District.

Jan. 5, 1967.

Ogier & Stubbs, Jacksonville, for appellant.

Charles Cook Howell, Jr., Jacksonville, for appellee, United States Fidelity & Guaranty Co.

Arthur T. Boone and John A. Rush, Jacksonville, for individual appellees.

David M. Foster, of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellee, Hotel Roosevelt Co., Inc.

WIGGINTON, Judge.

Plaintiff has appealed a final judgment dismissing with prejudice her complaint on the ground that it fails to state a cause of action.

In summary, the complaint alleges that defendants are the owners and operators of a hotel in Jacksonville, Florida. The hotel was constructed, remodeled, and maintained in such manner as to permit combustible materials to remain in a concealed space between the ceiling of the ballroom and lobby and the roof. Vertical shafts were constructed without fire stops resulting in a condition whereby a fire, once started, could spread in both horizontal and vertical directions throughout the building. The building was not equipped with an automatic sprinkler system or with fire detection devices. The foregoing conditions created a dangerously hazardous condition which was known or should have been known to the owners. On the critical date a fire occurred in the hotel so owned and operated by defendants. Plaintiff's decedent, an employee of the Jacksonville Fire Department, responded to a fire alarm and entered upon the hotel premises in the course of his employment for the purpose of assisting in extinguishing the fire. While performing his duties, plaintiff's decedent inhaled large quantities of smoke and became physically overcome and exhausted therefrom. As a direct and proximate result of the smoke inhalation, plaintiff's decedent was caused to suffer a heart attack as a result of which he died.

In its order granting defendants' motion to dismiss the complaint, the trial court specifically found from the allegations contained therein that plaintiff's decedent, at the time of his injury and death, was a licensee upon the premises of defendants. Having determined the status of plaintiff's decedent to be that of a licensee, the trial court found the allegations of the complaint to be insufficient as a matter of law to charge defendants with a breach of duty owed decedent, or to otherwise state a cause of action for the relief prayed.

The entire burden of appellant's argument on this appeal is that a fireman who suffers injuries resulting in his death under the circumstances alleged in the complaint filed herein occupies the legal status of an invitee to whom the owner owes the duty of keeping the premises in a reasonably safe condition, and to guard against subjecting the invitee to dangers of which the owner is cognizant or might reasonably have foreseen. ¹ Although appellant recognizes that the weight of authority in the United States on the question presented is contrary to her position, she charges that such is an anachronism which should now be rejected. She points to the minority view expressed in decisions rendered by courts of last resort in the states of Illinois, New York, and Minnesota, ² as representing the sounder rule of law which should be adopted and followed by the courts of Florida.

As indicated above, the majority of courts in this country adhere to the view that in the absence of statute or express invitation, a fireman who enters upon the premises of another in the discharge of his duty occupies the status of a licensee. ³ This is the view apparently favored in Florida as gleaned from the decision rendered by the Supreme Court in the case of Fred Howland Inc. v. Morris. ⁴ This case involved a suit by a city building inspector to recover damages for injuries sustained from a fall caused by the negligent and faulty construction of a building which he was inspecting. In distinguishing the status of a city building inspector from that of a fireman, the Supreme Court said:

'It is urged by defendant Fred Howland, Inc., that Morris was a licensee on the premises and that consequently it was under no duty to protect Morris from injury, being required only to refrain from wilfully and wantonly injuring him. Defendant cites many cases dealing with firemen and policemen, where the courts have almost uniformly held that such officers are licensees. The theory--and it is a correct one--upon which such holdings are based is that of overwhelming necessity, and no duty rests upon the property owner to protect such licensees from injury.

'A building inspector, while his presence is in part a necessity, is present also by virtue of an implied contractual relationship with the city, wherein the city grants a permit to build, provided the city, through its authorized agents, is allowed to make detailed inspections of the component parts of the building as they are assembled. The inspector is on the premises for a purpose connected with the business in which the owner or occupant is engaged or which he permits to be conducted on the premises, and there is a mutuality of interest in the subject to which the inspector's presence relates. In this respect he is akin to a government inspector in a privately owned meat packing plant. Pauckner v. Wakem, 231 Ill. 276, 83 N.E. 202, 14 L.R.A., N.S., 1118; Milauskis v. Terminal Ry. Ass'n, 286 Ill. 547, 122 N.E. 78; Boneau v. Swift & Co., Mo.App., 66 S.W.2d 172.'

While admittedly the above-quoted excerpt from the decision in Howland which relates to the legal status of firemen was dictum, it nevertheless constituted a part of the court's reasoning in arriving at the decision reached by it in that case, and to that extent is highly persuasive.

Since the trial court's ruling in the case sub judice conforms to the majority view followed in this country, is consistent with the common law and in harmony with the expression made by our Supreme Court in Howland, supra, we are not prepared to hold the trial court to be in error.

In addition to the foregoing, we perceive other reasons why the complaint fails to state a cause of action regardless of the...