Thomas v. Pang
| Decision Date | 15 May 1991 |
| Docket Number | No. 14325,14325 |
| Citation | 811 P.2d 821,72 Haw. 191 |
| Parties | Michael THOMAS and Juanita Thomas, Plaintiffs-Appellants, v. Franklin PANG, E.N. Nagao, Ltd., and First Construction Associates, Inc., Defendants-Appellees, and John Does 1-10, Doe Partnerships, Corporations and/or Other Entities 1-10, Defendants. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
Michael THOMAS and Juanita Thomas, Plaintiffs-Appellants,
v.
Franklin PANG, E.N. Nagao, Ltd., and First Construction
Associates, Inc., Defendants-Appellees, and John
Does 1-10, Doe Partnerships,
Corporations and/or Other
Entities 1-10, Defendants.
Supreme Court of Hawai'i.
May 15, 1991.
Syllabus by the Court
1. The Fireman's Rule is that a professional fire fighter may not recover damages from a private party for injuries he sustained during the course of putting out a fire even though the private party's negligence may have caused the fire and injury.
2. The Fireman's Rule is adopted for this jurisdiction based on considerations of public policy. This policy is based on the nature of the service provided by fire fighters and the relationship between fire fighters and the public that calls on them specifically to confront certain hazards on behalf of the public.
3. Violation of HRS § 132-8 which generally requires owners to reasonably safeguard their buildings against fire, in itself, does not create a duty to an injured fire fighter, where the common law Fireman's Rule indicates there is none.
4. Although fire fighters assume the usual risks incident to their entry upon the premises made dangerous by the destructive effect of fire, there is no valid reason why they should be required to assume the extraordinary risk of hidden perils of which they might easily be warned.
5. The Fireman's Rule will not be applied to cases in which a hidden danger exists. Hidden dangers are those unusual hazards which are not normally anticipated and not ordinarily incidental to fire fighting. The collapse of a ceiling in a burning building is not a hidden danger.
Peter Van Name Esser (Melvin Y. Agena, Ann S. Isobe and Willard J. Peterson with him on the briefs), Peterson & Esser, and Turk & Agena, Honolulu, for plaintiffs-appellants Michael Thomas and Juanita Thomas.
Thomas Pico (Michael M. Payne, on the brief), City Financial Tower, Honolulu, for defendant-appellee E.N. Nagao, Ltd.
Rhonda A. Nishimura (Richard F. Nakamura, with her on the brief of Libkuman, Ventura, Ayabe, Chong & Nishimoto), Honolulu, for defendant-appellee Franklin Pang.
Michele-Lynn Luke (Lisa P. Tong and Robert P. Richards on the brief of Reid, Richards & Miyagi formerly Davis, Reid & Richards), Honolulu, for defendant-appellee First Const. Associates, Inc.
Before PADGETT, Acting C.J., HAYASHI, WAKATSUKI and MOON, JJ., and BURNS, Chief Judge, Intermediate Court of Appeals In Place of Lum, C.J., Recused.
On January 6, 1986, in the early morning hours, Michael Thomas and other fire fighters responded to a fire alarm at 425 North King Street in Honolulu. In the course of extinguishing the fire, a portion of the ceiling of the burning building collapsed on Thomas causing a compound fracture of his right arm. Thomas filed suit against Franklin Pang (Pang), E.N. Nagao, Ltd. (Nagao), and First Construction Associates, Inc. (First Construction) alleging generally that their negligence in failing to adequately maintain and secure the building was the proximate cause of his injury.
The circuit court entered summary judgments in favor of all the defendants. The court applied the Fireman's Rule (Rule) and held that no duty was owing to Thomas by the defendants to protect him from the injuries he sustained. We affirm.
The burning building was owned by Pang. At the time of the fire it was empty and in the process of being demolished. Nagao and First Construction had been contracted for the demolition of the building and subsequent rebuilding.
Fire investigators determined that the fire was probably started maliciously in a waste disposal dumpster inside the building. The building was not secured at the time and the investigators concluded that some unknown persons had entered the building and deliberately set the fire.
The Rule generally is that a professional fire fighter may not recover damages from a private party for injuries he sustained during the course of putting out a fire even though the private party's negligence may have caused the fire and injury. The overwhelming majority of jurisdictions that have considered the Rule have adopted some permutation of the Rule. 1 But there is hardly any consistent basis for the adoption of the Rule among jurisdictions.
Historically, the Fireman's Rule was explained in the context of the landowner's liability. The fire fighters were accorded the status of licensees when entering the premises to extinguish a fire, and therefore, the landowner was under no duty to keep the premises safe at all times for the protection of fire fighters. Difficulty arose when fire fighters were classified as invitees or licensees as they did not fit neatly in either category. Also, that rationale "unfairly limited the rule's application to the landowner/occupant context, thus denying liability for the negligent acts of those individuals, but not for others whose negligent acts injure ... firemen elsewhere." Pottenbaum v. Hinds, 347 N.W.2d 642, 645 (Iowa 1984). The Rule also failed to adequately explain the distinction in treating some public employees, such as postal workers and building inspectors, as invitees, while classifying fire fighters and police officers as licensees. Flowers v. Rock Creek Terrace Ltd. Partnership, 308 Md. 432, 444, 520 A.2d 361, 366-67 (1987). Moreover, as distinctions among invitees, licensees and trespassers were abolished, this rationale could no longer serve as the basis for the Rule. See England v. Tasker, 129 N.H. 467, 468-69, 529 A.2d 938, 939 (1987); Berko v. Freda, 93 N.J. 81, 85, 459 A.2d 663, 665 (1983); Giorgi v. Pacific Gas & Electric Co., 266 Cal.App.2d 355, 357, 72 Cal.Rptr. 119, 122 (1968). In Hawaii, the common law distinctions between classes of persons in determining a landowner's or occupier's duty of care have been abolished. Pickard v. City & County of Honolulu, 51 Haw. 134, 452 P.2d 445 (1969).
More recently, the Rule has been premised on the doctrine of assumption of risk. The principle of the Rule is that "one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby." Walters v. Sloan, 20 Cal.3d 199, 142 Cal.Rptr. 152, 155, 571 P.2d 609, 612 (1977); Flowers v. Sting Security Inc., 62 Md.App. 116, 134, 488 A.2d 523, 533 (1985).
However, the widespread abolition of contributory negligence as a total bar to recovery by an injured party raised the question whether the Rule premised on assumption of risk remained viable. In upholding the Rule, a number of courts were compelled to expound on the differences between primary and secondary assumptions of risk.
The term assumption of risk has led to no little confusion because it is used to refer to at least two different concepts, which largely overlap, have a common cultural background, and often produce the same legal result. But these concepts are nevertheless quite distinct rules involving slightly different policies and different conditions for their application. (1) In its primary sense the plaintiff's assumption of risk is only the counterpart of the defendant's lack of duty to protect the plaintiff from that risk. In such a case plaintiff may not recover for his injury even though he was quite reasonable in encountering the risk that caused it.... (2) A plaintiff may also be said to assume a risk created by the defendant's breach of duty towards him, when he deliberately chooses to encounter that risk. Hereafter we shall call this "assumption of risk in the secondary sense."
Flowers v. Sting Security Inc., 62 Md.App. at 135, 488 A.2d at 533 (quoting 2 Harper & James, The Law of Torts § 21.1 at 1162 (1956)).
When assumption of risk was used as the rationale for the application of the Rule, the term was used in its primary sense, meaning that the defendant owed no duty of care to the fire fighter. See Kreski v. Modern Wholesale Electric Supply Co., 429 Mich. 347, 363, 415 N.W.2d 178, 185-86 (1987); Berko v. Freda, 93 N.J. at 85, 459 A.2d at 665; Chesapeake & Ohio Railway Co. v. Crouch, 208 Va. 602, 607-08, 159 S.E.2d 650, 654 (1968); Krauth v. Geller, 31 N.J. 270, 273, 157 A.2d 129, 130 (1960).
Despite the apparent satisfactory resolution of the conflict between the Rule premised on assumption of risk and the modern doctrine of comparative negligence, the most recent decisions adopting the Rule have based acceptance of the Rule on a public policy analogous, but not identical, to the principle of assumption of risk. See Winn v. Frasher, 116 Idaho 500, 777 P.2d 722 (1989); Kreski v. Modern Wholesale Electric Supply Co., supra; England v. Tasker, supra; Flowers v. Rock Creek Terrace Ltd. Partnership, supra; Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 694 P.2d 433 (1985); Pottenbaum v. Hinds, supra.
We favor those decisions that support the adoption of the Rule based on considerations of public policy. This policy is based on the nature of the service provided by fire fighters and the "relationship between firemen ... and the public that calls on [them] specifically to confront certain hazards on behalf of the public." Flowers v. Rock Creek Terrace Ltd. Partnership, 308 Md. at 447, 520 A.2d at 368.
It is beyond peradventure that the maintenance of organized society requires the presence and protection of fire fighters and police officers. The fact is that situations requiring their presence are as inevitable as anything in life can be. It is apparent that these [fire fighters] are employed for the benefit of society in general, and for people...
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