Aravanis v. Eisenberg

OppBnheimer, J., delivered the opinion of the Court. This case involves the duties of property owners to a fireman seriously injured while fighting a fire upon their premises and the rights of a fireman at common law and under the Montgomery County Fire Prevention Code. The plaintiff-appellant sued in the Circuit Court for Montgomery County but an affidavit of removal was filed by the defendants, and the trial took place in the Superior Court of Baltimore City. At the conclusion of the testimony, the trial judge denied motions for directed verdicts requested by the plaintiff and the defendants.

The jury returned a verdict for the defendants, and the plaintiff has appealed from the judgment on that verdict. He contends that his motion for a directed verdict against the defendants should have been granted, and that the trial judge erred in refusing certain prayers requested by the plaintiff and in the charge to the jury. He also contends that the trial judge committed prejudicial errors in his rulings in connection with the plaintiff’s interrogatories and exceptions thereto and in permitting some testimony to be admitted over objection. The basic facts were succinctly summarized by Judge Prendergast in his charge to the jury, as follows: “The plaintiff seeks to recover damages for personal injuries which he sustained in the course of fighting a fire at the home of the defendants located at ²⁴⁷ 8337 Grubb Road in Silver Spring, Maryland, late in the afternoon of May 22, 1962.

Philip J. Aravanis, the plaintiff, was a professional fireman serving as a member of one of the companies of the Silver Spring Fire Department. His company, along with others, had responded to a fire alarm which had been given by Mrs. Diane U. Eisenberg, one of the defendants, after her husband, Lloyd A. Eisenberg, told her there was a fire in the basement of their home and directed her to telephone the alarm. Mrs. Eisenberg did so by calling the operator, who in turn relayed the alarm to the Fire Department. The firemen responded within a matter of minutes and went about their duties of extinguishing the fire. “Mr. Aravanis was in the basement where the fire was concentrated and using a hose charged with water in an effort to extinguish flames which he had observed in the ceiling through the smoke.

Suddenly, according to some of the witnesses, there was a flash and plaintiff was severely burned over large parts of his body. Other firemen came to his rescue, dragged him outside the building, and he was taken by ambulance to a hospital where he remained for a considerable period of time. It is for the injuries thus sustained that he brings this suit charging that the defendants were guilty of negligence which brought about the injuries. “There appears to be no dispute as to the cause of the fire in this case. The defendant, Lloyd A. Eisenberg, in some fashion brushed or knocked a tool off his work bench, causing it to fall down onto a jug containing acetone, which then burst and its contents spilled out on the basement floor.

The acetone almost immediately came in contact with the flame of the pilot light of the hot-water heater nearby and ignited. Eisenberg’s efforts to extinguish the blaze were unsuccessful and the fire spread to the ceiling and adjoining parts of his house.” ²⁴⁸ Lloyd Eisenberg is a podiatrist. At the time of the fire, he was on active duty as a podiatrist in the Air Force. He had begun to equip a professional office in the basement of his home, where the fire occurred, for the private practice of his profession.

The basement contained the professional offices, recreation, utility, laundry rooms, and two hallways. The upper floor of the house was used for the family living quarters. We shall first consider the trial judge’s charge in the light of the obligations of the defendants-appellees towards the appellant at common law, then the impact of the county fire prevention code, the trial court’s rulings in connection with the interrogatories, and finally, the questions raised as to the court’s rulings on evidentiary matters. I The obligations owed by a property owner to a fireman who comes to the premises in the performance of his duties have been extensively considered in cases throughout the country, by the writers of legal treatises, in law reviews and by the American Law Institute.

In general, the fireman has been held to be only a licensee. Steinwedel v. Hilbert, 149 Md. 121 , 131 Atl. 44 (1925); Prosser, Law of Torts, §61 (3d ed. 1964) ; Note, 47 Cornell L. Q. 119 (1961). In some jurisdictions there has been a change in the legal principles held applicable; almost thirty years ago, Chief Judge Bond, in delivering this Court’s opinion in Steinwedel v. Hilbert, supra, referred to the re-examination of the legal rules even then taking place. The subject is one in which the law is developing by way of intensive analysis and modification of the applications of rigid concepts in the light of the particular circumstances involved.

The criticism of what was formerly the almost universal rule is based essentially upon making the determination of what is justice between the parties depend upon cramming firemen into the inflexible legal category of licensee. Property owners owe licensees only the duties of abstaining from wilful or wanton injury and entrapment. Levine v. Miller, 218 Md. 74, 78-79 , 145 A. 2d 418 (1958) ; Crown Cork and Seal Co. v. Kane, 213 Md. 152, 157 , 131 A. 2d 470 (1957). If a fireman is to be regarded as an invitee, the property owner owes him a duty ²⁴⁹ to see that the premises are reasonably safe and to warn him of any dangerous condition known, or which reasonably should have been known to the property owner but not to the fireman.

Nalee, Inc. v. Jacobs, 228 Md. 525, 529 , 180 A. 2d 677 (1962) ; Peregoy v. Western Md. R. R. Co., 202 Md. 203, 95 A. 2d 867 (1953). Illinois has held that the common-law rule labelling firemen as only licensees is not to be perpetuated. Dini v. Naiditch, 20 Ill. 2d 406, 170 N. E. 2d 881 (1960). In that case, the defendants were owners and lessees of a four-story building, the first story of which was used by the owners as a store; the upper floors were used by the lessee as a hotel.

Firemen were called to extinguish a fire in the premises. During the fire, a stairway collapsed, killing one of the firemen and severely injuring another. The plaintiffs sued for wrongful death, personal injuries and loss of consortium. There was evidence of negligence by the defendants in improperly storing paint, benzine and other flammables on the premises, in failing to provide fire doors or extinguishers, in permitting the accumulation of litter in the corridors, and in other particulars.

The trial court entered judgments for the defendants notwithstanding the jury’s verdict for the plaintiffs. The Supreme Court reversed and reinstated the verdicts, holding that the plaintiffs could recover for the defendants’ failure to use reasonable care in maintaining the premises, and that the jury could have found the hazards of fire and injuries in fighting it were reasonably foreseeable. Two Justices dissented on the issue of liability. In the majority opinion, the court said: “It is highly illogical to say that a fireman who enters the premises quite independently of either invitation or consent cannot be an invitee because there has been no invitation, but can be a licensee even though there has been no permission.

The lack of logic is even more patent when we realize that the courts have not applied the term ‘licensee’ to other types of public employees required to come on another’s premises in the performance of their duties, and to whom the duty of reasonable care is owed. If benefit to the landowner is ²⁵⁰ the decisive factor, it is difficult to perceive why a fireman is not entitled to that duty of care, or how the land owner derives a greater benefit from the visit of other public officials, such as postman, water meter readers and revenue inspectors, than from the fireman who comes to prevent the destruction of his property (Citations omitted). “Consequently, it is our opinion that since the common-law rule labelling firemen as licensees is but an illogical anachronism, originating in a vastly different social order, and pock-marked by judicial refinements, it should not be perpetuated in the name of ‘stare decisis.’ That doctrine does not confine our courts to the ‘Calf Path,’ nor to any rule currently enjoying a numerical superiority of adherents. ‘Stare decisis’ ought not to be the excuse for decision where reason is lacking.” 20 Ill. 2d at 415-16 . That case has been widely discussed. See, in favor of the holding, Prosser, supra; Note, 47 Cornell L.Q. 119, supra; 14 Vand.

L. Rev. 1541 (1961); contra, Scheurer v. Trustees of Open Bible Church, 175 Ohio St. 163 , 192 N. E. 2d 38 (1963). Minnesota has held that a fireman responding to the call of duty enters the land of another in a status sui generis, and that the occupant has a duty to warn firemen of any hidden dangers if he has knowledge of the danger and an opportunity to give warning. Shypulski v. Waldorf Paper Products Co., 232 Minn. 394 , 45 N. W. 2d 549 (1951). The duty referred to in the decision is no greater than that owed to a licensee under the Maryland law.

The sui generis approach is also taken in Krauth v. Geller, 31 N. J. 270, 157 A. 2d 129 (1960). See also Ann. 86 A.L.R. 2d, supra, 1212-13 and 35 Minn. L. Rev. 513 (1951). The balancing of the scales of justice as between fireman and property owner, it is suggested, may shift with the place in which the fireman is injured and also, perhaps, with the stage in the execution of the fireman’s duties when the injury occurs.

When a fire department is called to fight a blaze, the cause of the blaze is immaterial. It may be the result of actual negligence on the part of the property owner, such as the drop ²⁵¹ ping of a lighted match, or of his negligence in the maintenance of his property, as in permitting a known defective condition of the wiring to remain uncorrected. In either case, if the fireman is injured by the flames or gases of the conflagration, apart from unusual factors operative after the fire has begun, he can not recover. Fighting the fire, however caused, is his occupation.

Compensation for injuries sustained in the fulfilment of his duties, absent other circumstances, is the obligation of society. 1 Even though the property owner might be held liable for negligence to a business visitor injured in the resulting fire, the cases are uniform in holding that, apart from failing to warn of hidden dangers and statutory violations, he is not liable to the fireman. Scheurer v. Trustees of Open Bible Church, supra, (unguarded excavation on church property held insufficient to impose liability for injuries sustained by policeman); Krauth v. Geller, supra, (recovery denied notwithstanding the fact that nonconforming rail caused death of fireman); Baxley v. Williams Construction Co., 98 Ga. App. 662 , 106 S. E. 2d 799 (1958) (recovery denied notwithstanding the fact that fireman fell into open excavation); Anderson v. Cinnamon, 365 Mo. ²⁵² 304, 282 S. W. 2d 445 (1955) (failure to warn fireman of defective porch held insufficient to impose liability). See Ann., 86 A.L.R. 2d 1205 , 1209 (1962) 2 It is when the fireman sustains injuries after the initial period of his anticipated occupational risk, or from perils not reasonably foreseeable as part of that risk, that the justice of continuing to regard him as a licensee only is questioned.

The Tentative Draft of the Restatement of Torts (Second) would make the degree of duty of the possessors of land to persons, such as firemen, entering the land in the exercise of a privilege, depend upon whether the public officer suffers harm because of a condition of a part of the land then held open to the public. The proposed subsection reads as follows: “(2) THE LIABILITY OF A POSSESSOR OF LAND TO A PUBLIC OFFICER OR EMPLOYEE WHO ENTERS THE LAND IN THE PERFORMANCE OF HIS PUBLIC DUTY, AND SUFFERS HARM BECAUSE OF A CONDITION OF A PART OF THE LAND THEN HELD OPEN TO THE PUBLIC, IS THE SAME AS THE LIABILITY TO AN INVITEE.” Tentative Draft No. 5 (Apr., 1960). The proposed rule would encompass the situation in Dini v. Naiditch, supra. An example of case law applying the rule proposed in the Re ²⁵³ statement is Meiers v. Fred Koch Brewery, 229 N. Y. 10, 127 N. E. 491 (1920) cited with other cases in the note to the tentative redraft of the subsection.

In that case, as set forth in the note, “[t]he chief of the fire department came to defendant’s brewery to extinguish a fire in the evening, when the brewery was apparently open for business. On his way in he was injured by falling into an open coal hole in a driveway maintained for public use. The defendant apparently did not know of his presence, and had no opportunity to warn him. He was allowed to recover.

Stress was laid upon the fact that he was injured upon a part of the premises open for public use.” We find nothing in the decisions of this Court inconsistent with the rule proposed in the Restatement draft. In Steinwedel v. Hilbert, supra, the appellant, a member of the Baltimore Fire Insurance Salvage Corps, in the course of his duties went to the premises occupied or owned by the defendants where a fire had originated and was injured by falling into an elevator shaft which he claimed had been negligently left open and unguarded. It was held that, on the facts, the appellant was a licensee only and not an invitee, and that the owner or occupant of the premises was not under any duty of care to keep the premises prepared and safe for a fireman. Judgment for the appellees on demurrer to the declaration was affirmed.

In his opinion for the Court, Chief Judge Bond referred to the fact that there was no allegation that the elevator shaft was opened in or near a way prepared and set apart as a passage way. He discussed the Meiers case, but distinguished it on its facts. We have recognized that there may be a change of status, “geographical or chronological”, of one who starts as an invitee. Levine v. Miller, 218 Md. 74, 79 , 145 A. 2d 418 (1958); Pellicot v. Keene, 181 Md. 135, 139 , 28 A. 2d 826 (1942); Gordon Sleeprite Corp. v. Waters, 165 Md. 354, 358 , 168 Atl. 846 (1933).

See Restatement, Torts § 343 Comment b (1932). While the cases cited deal with change of status from invitee to licensee, there is no reason in logic or justice, when circumstances warrant, why the transmutation cannot be from licensee to invitee. In the present case, the appellant contends he was injured not because of the fire itself but because the failure of the ²⁵⁴ appellees to keep the acetone in a proper container was negligence operative apart from the fire, and that this negligence caused the injury. There was sufficient evidence to support this theory to go to the jury, under proper instructions as to the legal effect, if any, on the issue of liability, if the jury found the facts to be in accordance with the appellant’s contention.

On the assumption that the appellant’s contention as to the facts is correct, he was injured not as a result of the fire itself but because of negligence of the appellees which both caused the fire and put into operation an active, dangerous force which operated after the fire had started. On the other hand, the injuries were not sustained in any portion of the premises held open to the public. The issue presented is whether the initial occupational hazard of the fire being no longer involved, the fireman retains his status as a licensee only, or whether he is entitled to the greater care due an invitee. The determination of that question depends upon whether the property owners owed the appellant a higher duty because their negligence affected him, chronologically, after the expected peril of the fire had been met, like the duty they would owe under the proposed Restatement (Second) rule, if, geographically, the peril was in a portion of the premises publicly used.

We do not decide this issue, because we find that, even on the appellant’s hypothesis as to the cause of the injury, the trial judge’s instructions to the jury were as favorable to the appellant as they could have been even if his contentions as to his status as an invitee at the time of his injuries were correct. In his charge, Judge Prendergast instructed the jury as to the legal status of a fireman when he comes upon the property for the purpose of extinguishing the blaze. He referred to the difference in the status of a fireman in this respect from that of an invited guest in the home of the property owner and told the jury that even though the defendants might have to respond in damages to a neighbor or invited guest, if they had negligently started the fire in the first place, the plaintiff, when he came to the house to fight the fire, was in the position of a licensee. He told the jury that, because of the nature of his duties, the fireman takes the property as he finds it, subject to the usual and ordinary hazards to which firemen are ordinarily ²⁵⁵ exposed.

The Judge continued: “However, if there exist unusual or extraordinary dangers, of which the occupant is aware but of which the fireman is not, the situation may be different. The possessor of land must exercise reasonable care not to subject the fireman to unusual danger and to see that the fireman is aware of any such unusual danger of which the landowner has knowledge and the fireman could not reasonably be expected to' discover in the discharge of his duties.” The Judge’s instructions on this phase of the case, involving the position of the plaintiff when he came to the defendants’ premises to fight the fire, was in accordance with the applicable legal principles. Judge Prendergast then proceeded to instruct the jury as to the legal situation which would exist if they found that because of the property owners’ negligence there existed a danger greater than that which is normally found in a private dwelling house. He told the jury that, if the consequences of that danger, if it existed, were known to the defendant, Lloyd Eisenberg, or reasonably foreseeable by him, he had a duty to warn the firemen of the unusual danger and not permit them to be exposed to its consequences, if the defendant was aware of those consequences and the plaintiff was not.

He instructed the jury that they must consider whether the danger, if any, which existed was not only an unusual and unexpected one but also whether Eisenberg knew or in the exercise of reasonable care should have known of its existence. Judge Prendergast concluded this portion of his charge as follows: “To summarize then, the various elements upon which the plaintiff’s