Wilson v. Florida Processing Co.

• Decision Date: 06 March 1979
• Docket Number: No. 78-1063,78-1063
• Parties: Tobie WILSON, Appellant, v. FLORIDA PROCESSING COMPANY, a Florida Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 609

368 So.2d 609

Tobie WILSON, Appellant, v. FLORIDA PROCESSING COMPANY, a Florida Corporation, Appellee.

No. 78-1063.

District Court of Appeal of Florida, Third District.

March 6, 1979.

Rehearing Denied April 4, 1979.

Stephen Lubow, Miami, for appellant.

Corlett, Merritt, Killian & Sikes and Linda Loomis Shelley, Miami, for appellee.

Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

SCHWARTZ, Judge.

Tobie Wilson, who was the plaintiff in a personal injury action below, seeks review of a judgment for the defendant entered pursuant to a directed verdict granted at the conclusion of all the evidence in a jury trial. We affirm.

At the time of the incident involved in this case, Wilson was the chief of police of the Town of Medley, Florida. He alleged that the defendant-appellee, Florida Processing Company, had negligently maintained its plant, which was located outside the Medley town limits, so as to cause a cloud of dangerous chlorine gas to escape into the town itself. Wilson was injured when he inhaled quantities of the gas while attempting to evacuate residents of his town from the affected area.

The result in this case is controlled by our very recent decision in Whitten v. Miami-Dade Water & Sewer Authority, 357 So.2d 430 (Fla. 3d DCA 1978). In a strikingly similar factual situation, the court held that firemen and policemen who had been injured by the inhalation of chlorine gas could recover only upon a showing of wanton and willful misconduct, even though the injuries did not occur on the defendant's premises. At 357 So.2d 432, we held:

"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.

"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 appellants (as they would likewise be strictly liable to the general public) for the injuries sustained, by virtue of appellees' negligent maintenance and handling of an inherently dangerous substance.

The issue we are faced with, then, is whether the same duty owed by the owner or occupant of premises to a policeman or fireman who is injured upon the premises while in the discharge of his professional duties Likewise applies to a policeman or fireman whose injuries stem from the same discharge of professional duties but do not actually occur on the premises. We answer the question in the affirmative." (emphasis supplied)

Since, as in Whitten, at 357 So.2d 433, we likewise find no evidence that the defendant in this case was guilty of willful or wanton misconduct as opposed to mere simple negligence, that decision plainly requires affirmance.

The plaintiff argues, however, that a jury issue was presented as to whether, at the time of the accident, he was acting "beyond the scope of his normal duties as a policeman," and thus entitled to recovery under the "rescue doctrine" as applied in Ryder Truck Rental, Inc. v. Korte, 357 So.2d 228, 231 (Fla. 4th DCA 1978). ¹ We do not agree. It is perfectly obvious that the evacuation of endangered citizens such as that undertaken by Wilson forms a part of precisely what policemen are hired to do and falls directly under...