Whitten v. Miami-Dade Water and Sewer Authority

• Decision Date: 28 March 1978
• Docket Number: MIAMI-DADE,77-484,Nos. 77-343,s. 77-343
• Citation: 357 So.2d 430
• Parties: Dale WHITTEN et al., Appellants, v.WATER & SEWER AUTHORITY et al., Appellees.
• Court: Florida District Court of Appeals

Page 430

357 So.2d 430

Dale WHITTEN et al., Appellants, v. MIAMI-DADE WATER & SEWER AUTHORITY et al., Appellees.

Nos. 77-343, 77-484.

District Court of Appeal of Florida, Third District.

March 28, 1978.

Rehearing Denied May 2, 1978.

Horton, Perse & Ginsberg, Miami, Bernard H. Butts, Jr., Hialeah, for appellants.

Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O'Hara and Richard A. Sherman, Miami, for appellees.

Before HENDRY, HUBBART and KEHOE, JJ.

HENDRY, Judge.

This consolidated appeal is taken from a summary final judgment and amended summary final judgment rendered in favor of appellees/defendants and against appellants/plaintiffs in a personal injury action.

Appellants, six in number, consisting of two members of the Hialeah Police Department and four members of the Hialeah Fire Department, responded to an emergency call by proceeding to a water plant located in Hialeah and operated and controlled by appellee Miami-Dade Water & Sewer Authority. Upon arrival, appellants discovered a heavy chlorine gas fog enveloping the area. Upon the realization of the dangerous condition, appellants went about their primary duties, i. e. the evacuation of occupants from nearby apartments and the diverting of traffic away from the area. Once the safety of the local populace had been effectuated, appellants' concern was directed to the task of finding the source of the escaping gas and stopping the leak. While the others remained outside, appellant Carlton entered the premises and, after some time, discovered the source of the leak, a corroded pipe, and rectified the situation. In fulfilling their duties, however, appellants allegedly suffered chlorine gas poisoning.

Subsequently, appellants filed a personal injury lawsuit against Miami-Dade Water & Sewer Authority alleging, inter alia, negligence on the part of appellee in the maintenance and care of its plumbing system at the plant. Appellants claimed that by virtue of the aforementioned negligence, appellees were strictly liable to appellants, as the chlorine gas is an inherently dangerous substance.

After discovery, both appellants and appellees moved for summary final judgment. Appellants' motions were denied, while appellees' motion was granted. An amended summary final judgment was later rendered. From the summary final judgment and amended summary final judgment, this consolidated appeal has been taken.

Appellants have raised two points on appeal. Point number one challenges the correctness of the trial court's entrance of summary final judgment, while point number two raises the contention that the trial court erred in denying appellants' motions for summary judgment on the issue of appellees' strict liability for the damages sustained by appellants.

For the following reasons, it is our opinion that no error has been committed.

It is well settled that Florida is among the majority of states that hold that an owner or occupant of premises is not liable to a policeman or fireman for injuries sustained on the premises by virtue of a negligently created condition which necessitated the policeman's or fireman's presence on the premise in discharge of his duty. Romedy v. Johnston, 193 So.2d 487 (Fla. 1st DCA 1967); Anno: "Duty and Liability of Owner or Occupant of Premises to Fireman or Policeman Coming Thereon in Discharge of his Duty," 86 A.L.R.2d 1205 (1962). Once upon the premises, the fireman or policeman has a legal status of a licensee and the sole duty owed him 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 licensee. Adair v. Island Club, 225 So.2d 541 (Fla. 2d DCA 1969).

There would seem little doubt that appellant Carlton, upon entering the premises in an attempt to discharge his duties, was fully cognizant of the observable danger and thus, fits squarely within the well-established law as set forth above. Counsel for appellants, however, attempts to distinguish the above cited cases on the grounds that the decisions rendered there were solely predicated upon the fact that the police officer and fireman possessed licensee status. Sub judice, appellants contend that because five out of the six appellants never actually entered the plant, they could not be classified as licensees. Rather, appellants, argue, appellees were strictly liable to appe...