Thompson v. Murat Shrine Club, Inc.

• Decision Date: 07 September 1994
• Docket Number: No. 29A02-9208-CV-367,29A02-9208-CV-367
• Citation: 639 N.E.2d 1039
• Parties: Charles THOMPSON, Virginia Thompson, Robert Deckard, Tammy L. Deckard, Donald Thomas, Patricia Thomas, James L. Greeson, Judy Greeson, Christopher Pitts, Mary Kay Pitts, John L. Armstrong, Appellants-Plaintiffs, v. The MURAT SHRINE CLUB, INC., and Murat Temple Association, Inc., Appellees-Defendants.
• Court: Indiana Appellate Court

Page 1039

639 N.E.2d 1039

Charles THOMPSON, Virginia Thompson, Robert Deckard, Tammy L. Deckard, Donald Thomas, Patricia Thomas, James L Greeson, Judy Greeson, Christopher Pitts, Mary Kay Pitts John L. Armstrong, Appellants-Plaintiffs, v. The MURAT SHRINE CLUB, INC., and Murat Temple Association Inc., Appellees-Defendants.

No. 29A02-9208-CV-367.

Court of Appeals of Indiana Second District.

Sept. 7, 1994.

Kevin P. Farrell, Yosha, Cline, Farrell & Ladendorf, Indianapolis, for appellants.

Norman T. Funk, Hill, Fulwider, McDowell, Funk & Matthews, Indianapolis, for appellees.

SULLIVAN, Judge.

On February 9, 1988, several members of the Indianapolis Fire Department (Firefighters) were injured while fighting a fire at the Murat Shrine Club and Murat Temple Association (collectively "Murat"). Upon arriving at the scene, the firefighters located the source of the fire in a second floor storage room. The flames in the room were extinguished within minutes. During this time, some of the firefighters discovered a loft, or attic, above the storage room.

The loft, constructed in 1983 by Murat employees, provided additional storage space for paper goods and miscellaneous kitchen items. An open stairway from the storage room floor led to a closed door that opened into the loft. Using a hose that had been dragged up the stairs, one of the firefighters sprayed a two-second burst of water and extinguished a "spot" fire in the loft. Moments later, as the fireman crawled across the loft to determine whether the fire was out, the loft collapsed, trapping and injuring several firefighters.

The trial court granted summary judgment in favor of the defendants Murat Shrine Club and Murat Temple Association. In order to prevail upon appeal, the Firefighters must establish the existence of a genuine issue of material fact from the materials designated to the trial court. Ind.T.R. 56. The restated issues presented upon appeal are:

I. Whether genuine issues of material fact exist that show defendants breached the duty of care owed to plaintiffs by maintaining a latent danger, by entrapment, or through willful or wanton misconduct;

II. Whether Indiana should adopt a standard of reasonable care under the circumstances owed all lawful entrants notwithstanding present distinctions between the duties owed licensees and invitees;

III. Whether firefighters who enter private property in the scope of their employment should be reclassified as invitees; and

IV. Whether premises liability should be abandoned either in favor of assumption of risk or in favor of public policy as the basis for the fireman's rule?

We affirm.

I. Duty of Care

Indiana had long held that the Fireman's Rule bars negligence actions seeking recovery for injuries sustained by firefighters in the line of duty. In Woodruff v. Bowen (1893) 136 Ind. 431, 34 N.E. 1113, our Supreme Court classified firefighters as licensees to whom a landowner owes no duty "except that of abstaining from any positive wrongful act which may result in his injury...." Id. at 442, 34 N.E. at 1117. Further, a firefighter is deemed to take "all risks as to the safe condition of the premises upon which he enters." Id. Unless a statute or ordinance imposes a duty to keep a building safe specifically for the benefit of firefighters "in case of a fire," the landowner's duties are those prescribed by common law. Id. at 443-44, 34 N.E. at 1117.

In Woodruff, a fireman was killed when a roof upon which he ventured to fight a fire collapsed without warning. The building had been remodeled prior to the fire, but the owner neither increased the strength of the walls nor altered the foundation to the degree necessary to provide sufficient support for the building's uses. The owner of the building knew the building could not support the weight of the stock of stationery and books stored therein and, furthermore, knew that the building would not withstand any additional weight such as the weight of water in case of fire. The prevailing city ordinance declared it unlawful to "construct, erect or maintain any unsafe, insecure and dangerous wall, building or structure within the limits of [Indianapolis]...." Woodruff, supra, at 435-36, 34 N.E. at 1115. Any wall, structure or building that was "likely to fall, or to take fire" was deemed unsafe and insecure. Id.

Despite the building owner's knowledge that the building was likely to fall because it was insecure and unsafe, the owner concealed this condition from the fire department when it responded to a fire upon the premises. The firefighters proceeded to throw water upon the building and its contents. Our Supreme Court attributed the building collapse to the weight of the stock and the water used to douse the flames as well as to pre-existing structural inadequacies of the building. These factors combined to cause the walls to give way "without being weakened or impaired at all in their bearing strength by the fire which was burning." Id. at 438, 34 N.E. at 1116. The Court also concluded that the ordinance in question was not drafted to ensure the safety of firemen in the case of fire; rather, it was of general application. Id. at 444, 34 N.E. at 1117. ¹ So long as the building was safe under ordinary circumstances, the owner was not required to anticipate extraordinary events, e.g., that the building tenant stored stationery upon which large quantities of water were thrown thereby "putting [the building] to an extraordinary strain." Id. at 445, 34 N.E.2d at 1118.

Today, the Fireman's Rule encapsulates the principle that public safety officers "whose occupations by nature expose them to particular risks, may not hold another negligent for creating ² the situation to which they respond in their professional capacity." Kennedy v. Tri-City Health Center (1992) 3d Dist.Ind.App., 590 N.E.2d 140, 142, trans. denied (quoting Koehn v. Devereaux (1986) 3d Dist.Ind.App., 495 N.E.2d 211, 215). Notwithstanding Woodruff, supra, and its progeny, the Firefighters cite positive wrongful acts, identified in Kennedy, supra, which might permit recovery. The Firefighters contend: (1) that Murat knew, but failed to warn them, that the loft was a latent danger; (2) that Murat's conduct in constructing the loft was so grossly deviant from everyday standards as to render Murat's conduct willful or wanton; and (3) that the loft constituted an entrapment.

The Firefighters place substantial reliance upon the fact that the Murat failed to obtain a building permit ³ before the loft was constructed in contravention of local ordinances. The gist of this argument is that, had a permit been obtained, the oversight provided by architects, engineers, or building inspectors would have averted any potential structural defect or safety concern. The Firefighters equate the failure to obtain a permit (as well as the failure to secure the advice of an architect or engineer) with a "positive wrongful act." In the Firefighters' opinion, this presents a genuine issue of material fact as to whether the failure was willful or wanton conduct, i.e., that the Murat proceeded without regard to the required procedures which led, eventually, to the concealment of a latent danger and the maintenance of an entrapment.

We disagree. First, and foremost, even if the Murat should have either secured professional advice or obtained a permit before altering the storage room, the Firefighters have failed to show that the conduct violated a statute drafted to insure the safety of firemen in case of a fire. Woodruff, supra (distinguishing ordinances for the safety of "public safety officers" from those providing for the safety of the general public). Thus, failure to proceed in conformity with building regulations does not trigger liability under Woodruff, supra.

Second, even if the Murat had used alternative ⁴ construction methods that arguably might have rendered the loft more structurally sound, the loft as constructed seemed safe and secure. There was no evidence that the loft was built with disregard for its structural soundness. Although no outside advice was sought, the Murat employees discussed various ways of securing the platform, ultimately agreeing that a system of beams and joists anchored in the concrete block walls provided adequate support. Further, the Murat employees who used the loft neither detected any shifting or pulling of the loft nor detected any "give" to the loft. Even with the added weight of several adults moving about the loft, the loft did not vibrate, sway, or sag. The Murat staff considered the loft safe and deemed it structurally secure. Given the consensus as to the loft's integrity, it simply does not follow that the Murat knew, but failed to warn the Firefighters, that the loft was a latent danger. By its conduct, the Murat demonstrated the exact opposite, i.e., through daily use, the loft did not pose a known or unanticipated danger.

Third, the Firefighters seize upon a reference to the loft as a "firetrap" as evidence of a genuine issue of material fact as to whether the loft was an entrapment. ⁵ After the fire, John Preston, the Murat's General Manager, discussed plans to rebuild the storage room in a manner that would eliminate a pre-existing firetrap. In further testimony, however, Preston clarified that it was a fireman who, after the fire, called the loft a firetrap. As is often the case, the illumination of hindsight often suggests a better course of conduct once the danger is past. Be that as it may, an after-the-fact characterization does not provide the necessary basis upon which to establish entrapment.

II. & III. Licensee Status

The Firefighters essentially challenge the common law distinctions between licensees and invitees. In a two-pronged attack, the Firefighters urge this court to abolish the "antiquated" common law classification system or, in the alternative, reclassify firefighters as invitees. The Murat counters that, notwithstanding recent...