Strong v. Seattle Stevedore Co.

• Decision Date: 11 February 1970
• Docket Number: No. 43,43
• Citation: 466 P.2d 545,1 Wn.App. 898
• Parties: , 1970 A.M.C. 565 Cora I. STRONG, and Cora I. Strong, as Administratrix of the Estate of Arthur Strong, Deceased; Nancy G. Hagedorn, John T. Strong, Mary E. Petersen, Harold A. Strong, Walter R. Strong, and Dorothy J. Strong, a minor, by her Guardian ad litem, Cora I. Strong, Appellants, v. SEATTLE STEVEDORE COMPANY, a Washington Corporation, Respondent. (40217) II.
• Court: Washington Court of Appeals

Page 898

1 Wn.App. 898

466 P.2d 545, 1970 A.M.C. 565

Cora I. STRONG, and Cora I. Strong, as Administratrix of the

Estate of Arthur Strong, Deceased; Nancy G. Hagedorn, John

T. Strong, Mary E. Petersen, Harold A. Strong, Walter R.

Strong, and Dorothy J. Strong, a minor, by her Guardian ad

litem, Cora I. Strong, Appellants, v. SEATTLE STEVEDORE COMPANY, a Washington Corporation, Respondent.

No. 43 (40217) II.

Court of Appeals of Washington, Division 2.

Feb. 11, 1970.

Rehearing Denied April 2, 1970.

Donald H. McGavick, Tacoma, for appellants.

Paul A. Goodin, Seattle, for respondent.

ARMSTRONG, Chief Judge.

Plaintiffs appeal from a judgment for the defendant in the jury trial of an action for the wrongful death of their husband and father, Arthur Strong, a Tacoma fireman. The decedent died while fighting a fire at Pier 7 in the Port of Tacoma on July 14, 1963.

The question presented in this case is one of first impression in the state of Washington. It is, can a municipally paid fireman recover damages for injuries received while fighting a fire in the course of his duties?

On the day of the fire the defendant, Seattle Stevedore Company, was engaged in loading logs on a ship berthed at Pier 7. Defendant was in charge of the longshoring gang involved in the loading. To facilitate this operation defendant used a gantry crane No. 18 which it rented from the Port of Tacoma. The crane could be moved up and down the length of the pier on rails affixed to the pier. The crane's electrical power was furnished by means of a large electrical cable. The cable was kept manageable by means of a reel on the crane.

On the day of the fire at about 12 noon a problem developed with the reel. It was not properly taking up or winding the cable causing it to be spilled out on to the pier. A foreman of defendant company worked with the crane operator until 1 p.m. in an attempt to correct the problem. At 1 p.m. the crane operator went to lunch and returned at 2 p.m. Thereafter he operated the crane without the immediate presence and assistance of the foreman. The crane apparently operated normally until about 2:20 p.m. when the reel again malfunctioned. Excess cable lying on the pier was pinched by the crane's wheels. The resultant electrical arcing started a fire in the pier beneath the immobilized crane. Defendant's employees shut off the electrical power to the crane, called the Tacoma Fire Department for assistance and attempted to extinguish the fire with water. The pier was newly constructed of heavily creosoted planks causing a very hot, smokey fire.

The decedent was battalion chief of the first unit of the Tacoma Fire Department to arrive at the scene of the fire. When the chief of the Tacoma Fire Department arrived at the scene the decedent was preparing to free ships tied to the pier. The fire chief directed him to continue with his efforts. The decedent was last seen alive going into heavy smoke to free the ships. The parties stipulated that he died as a result of the fire.

Plaintiffs make five assignments of error raising three issues. Plaintiffs' first contention is that the trial court erred in refusing to allow the Tacoma Fire Chief to testify as to the probability of injury to firemen fighting a major fire. This testimony was excluded as being based on the superior knowledge of the fire chief and on further reasoning that a longshoreman did not have such knowledge. The court determined that the question of foreseeability should be viewed from the position of a longshoreman and not from the position of a fire fighting expert. We agree.

Furthermore, the trial court had the discretion to determine that expert testimony was not necessary. The court could have considered, without expert testimony, that it is foreseeable to a person of ordinary experence and knowledge that pinching a cable carrying 440 volts of electrical power between a massive crane and the tracks on which it operates, damaging the insulation and exposing bare wire, creates a hazard of fire. We also think that a man of odinary experience and knowledge could expect a fire on a wooden pier, coated with a wood preservative, to result in a serious and major conflagration, and that injuries and even death could result among those engaged in fighting such a fire. The court did not abuse its discretion in refusing to permit expert testimony on a subject which could be judged by persons of ordinary experience and knowledge.

The second issue raised by plaintiffs concerns the decedent's status on the property and the duty of care owed him by the defendant. Before reaching this question it is necessary to determine the status of the defendant in relation to the property. Our initial inquiry is whether defendant is a possessor of land. A definition is provided in Restatement (Second) of Torts § 328 E. (1965) Possessor of Land Defined

A Possessor of land is

(a) a person who is in occupation of the land with intent to control it or

(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or

(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).

The defendant's business on Pier 7 in loading a ship necessitated the rental of a gantry crane from the Port of Tacoma. The trial court found that the crane was operated by an employee of defendant company and that his operation of the crane was supervised by a foreman also employed by defendant company. This is a factual matter which is not in dispute on appeal. While defendant was not responsible for the maintenance of the crane and its appurtenances it controlled the operation of the crane in loading the ship.

That the pier itself is real property is beyond question. Crane No. 18 is a gantry crane which moves about on the pier on rails which are integrated into the deck or surface of the pier. The crane's mobility on the pier is restricted to the length of the rails. Its power supply is furnished by the umbilical cord of the electric cable, thus further restricting its operation to the confines of the pier. The crane is not capable of movement off the pier or from one pier to another. The photographs and testimony reveal the great size, weight and mass of the crane. Because of a combination of all the foregoing factors we conclude for the purposes of this case that the gantry crane was affixed to and became a part of the pier.

The rental of the crane from the Port of Tacoma by the defendant and its operation by an employee of defendant under the supervision of another employee of defendant clearly indicates defendant's exercise of control over it. Defendant fits within the definition of a possessor of land.

Our next concern is the duty of care owed by the defendant possessor of land to the decedent fireman. The answer to this question turns upon the decedent's status on the property. The question of the status of a fireman fighting a fire has not been determined in the state of Washington. In determining this question of first impression we have turned to other jurisdictions. See Annot. 86 A.L.R.2d 1205 §§ 1 to 11 (1962). The majority rule is that a fireman is a mere licensee and is generally...