Flowers v. Rock Creek Terrace Ltd. Partnership

ELDRIDGE, Judge. David Flowers, a volunteer fireman, sustained severe injuries when he fell twelve stories down an open elevator shaft while responding to a fire in an apartment building. Flowers sued the building owners, the apartment’s security guard company, and the elevator manufacturer, alleging in general a failure to maintain the property in a safe condition. The defendants demurred, contending that Flowers’s claim was barred by the so-called fireman’s rule.

The Circuit Court for Prince George’s County (Bowen, J.) sustained the demurrers, and the Court of Special Appeals affirmed. We granted a petition for a writ of certiorari to consider the basis for and the scope of the fireman's rule. I. Rock Creek Terrace Limited Partnership owns Rock Creek Terrace Apartments, a high-rise residential apartment building located in Rockville, Maryland. Rock Creek employed Sting Security, Inc., to provide security services, including security guards, for the apartment building.

The elevators in the apartment building were manufactured by Westinghouse Electric Corporation. David Flowers was a fireman with the Kensington Volunteer Fire Department. On October 27,1981, Flowers and other members of the Kensington Volunteer Fire Department responded to a fire alarm at the Rock Creek Apartments. In the course of the fire, the twelfth-floor lobby became filled with smoke making it nearly impossible to see.

As Flowers and other firefighters evacuated tenants ⁴³⁷ from apartments adjoining the twelfth-floor lobby, Flowers fell down an open elevator shaft and sustained severe permanent injuries. Flowers filed a sixteen-count declaration in the Circuit Court for Prince George’s County against Rock Creek, 1 Westinghouse, Sting Security, and Larry W. Cline, a Sting Security employee. Flowers asserted negligence, statutory liability, nuisance, breach of warranty, fraud, negligent misrepresentation, negligence by a common carrier, and strict liability. In substance Flowers advanced four factual bases for liability: that Rock Creek and Sting Security knew of prior suspicious fires and failed to take any measures to prevent future fires, that Rock Creek failed to adopt reasonable safety precautions, including the installation of smoke detectors and sprinklers, that Rock Creek and Westinghouse installed an elevator system which was not sufficiently fire proof, and that Rock Creek, Sting Security, and Westinghouse failed to warn Flowers of the open elevator shaft.

The defendants demurred on the ground that the fireman’s rule “precludes recovery by an injured fireman when his injuries arise out of the very occasion for his employment (i.e., heat, smoke and the dangers encountered in fighting a fire) or when he is exposed to those elements by perils which are a part of the risks he faces when he fights a fire.” The defendants argued that they owed no duty of care to firemen engaged in the performance of their duties, and that Flowers had admitted in his allegations that he was a fireman injured in the performance of his duties. In response to the defendants’ position that they owed him no duty of care, Flowers first contended that he was entitled to due care because he was injured in the common area. Flowers relied on the Restatement of Torts (2nd), ⁴³⁸ § 345, which requires the possessor of land to exercise reasonable care for public officers or employees who enter any part of the land held open to the public. 2 Next, Flowers argued that Rock Creek and Sting Security owed him a duty of reasonable care because they had summoned the fire department and knew of the suspicious nature of this and previous fires at Rock Creek. Flowers stated that the “plaintiff was called to the premises to fight the fire by the defendants.

That is, the defendants specifically invited the plaintiff to come onto its premises, asked the plaintiff to perform a service there, and in all means consented to the plaintiffs presence on the premises at the time the plaintiff was injured. At that time, the defendants had reason to believe that there had been a number of fires in this apartment building, had reason to believe that the fires were of a dangerous nature, and had ample opportunity to take steps to prevent such fires. Due to this knowledge on behalf of the defendants, the express consent of the defendants, and the inviting of the plaintiff by the defendants to come upon the premises, the plaintiff should be afforded the status of invitee.” In ruling against Flowérs, the trial court indicated that the case should not turn “on any distinction of status and concepts of property.” Instead, the court sustained the demurrers because Flowers was injured while “in the process of fighting the fire.” The circuit court recognized that ⁴³⁹ the results may have been different if Flowers’s injuries had occurred apart from firefighting, but held that, under the allegations, the injuries occurred in the course of fighting the fire. Flowers appealed to the Court of Special Appeals.

In Flowers v. Sting Security, Inc., 62 Md.App. 116 , 488 A.2d 523 (1985), and in Flowers v. Rock Creek Terrace Limited Partnership, an unreported opinion, the Court of Special Appeals affirmed the trial court. Subsequently, we granted Flowers’s petition for a writ of certiorari which in substance set forth the following questions: (1) whether the fireman’s rule should continue to be based on principles defining the liability of landowners and occupiers or should be grounded in public policy based on the services fire and police officers perform which include confronting certain risks on behalf of the public; (2) whether the circuit court properly granted defendants’ demurrers in light of the facts alleged by the plaintiff.

II

The history of the fireman’s rule in Maryland is like that in many other states. Earlier cases in this country involving firemen’s attempts to recover for negligently caused injuries sustained while firefighting largely focused on the status of the firemen on the premises where the injuries occurred. These cases indicated that firemen came upon the premises under a privilege conferred by legal authority, and, not being invited by the landholder, took the property as they found it. Later cases, while still sounding in premises liability law, recognized that it is a fireman’s job to fight fires, and as such he normally takes the risk of fire-related injuries which may be attributable to the landowner or occupier’s negligence.

Thus, whether purporting to apply premises liability law, or under a rationale based on the relationship between firemen and the public whom they serve, courts held that landowners and occupiers ordinarily owed firemen no duty of reasonable care. ⁴⁴⁰ The Court of Appeals of Maryland considered for the first time the duty owed to a firefighter in Steinwedel v. Hilbert, 149 Md. 121 , 131 A. 44 (1925). Steinwedel, an employee of the Fire Insurance Salvage Corps of Baltimore, entered the premises leased by the defendant Hilbert to fight a fire and fell down an elevator sháft. Steinwedel’s declaration charged negligence in leaving the elevator shaft open and unguarded. Hilbert demurred on the ground that he was under no duty to exercise reasonable care to keep the premises safe for a fireman or salvage corps employee entering to fight a fire.

This Court agreed, holding that Hilbert was under no duty to Steinwedel to guard the elevator shaft. The Court, 149 Md. at 123-124 , 131 A. 44 , stated that “according to the great weight of authorities the general rule of common law is that a fireman entering premises to put out fire is a licensee only, and not an invitee, and that the owner or occupant of the premises is not under any duty of care to keep his premises prepared and safe for a fireman.” The Court went on to note that a fireman “ ‘is entitled only not to be led into danger, “something like fraud.” ’ ” Id. at 124 , 131 A. 44 , quoting Pollock, Torts (11th ed.), 528. The Court concluded that there was no common law liability, as “there is no allegation that the elevator shaft was opened in or near a way prepared and set apart as a passage way, and the case is not rested upon any such concealment or deceptive appearance, ‘something like fraud/ put in the path of the plaintiff, as would render the danger a trap.” 149 Md. at 125 , 131 A. 44 . More recently this Court examined the duty owed to a fireman in Aravanis v. Eisenberg, 237 Md. 242 , 206 A.2d 148 (1965), and re-affirmed the result set forth in Steinwedel .

In that case, Aravanis, a paid fireman for the Silver Spring Fire Department, responded to a fire at Eisenberg’s home. The fire had started when Eisenberg knocked a tool off his work bench, with the tool hitting a jug of acetone which then burst. The acetone came in contact with the ⁴⁴¹ flame of the pilot light of the hot water heater and ignited. Aravanis was attempting to extinguish the fire with a water hose when he was severely burned by a sudden flash.

Aravanis alleged that he was not injured by the fire itself but by Eisenberg’s negligent storage of acetone in an improper container. Aravanis argued that Eisenberg’s negligence “put into operation an active, dangerous force which operated after the fire had started.” 237 Md. at 254 , 206 A.2d 148 . The Court indicated that the merits of Aravanis’s argument depended on whether the status of a fireman changes from licensee to invitee after the initial period of anticipated occupational risk of firefighting is over. The Court compared such a chronology-based change in status to the geography-based change in status recognized by the Restatement when a fireman is injured in common areas of the premises.

Aravanis’s position was that the occupational risk of firefighting was over after he had begun fighting the fire, and thus when the flash occurred Eisenberg owed him a duty to abstain from negligent conduct. 3 The question of whether a fireman’s status can change when the initial period of occupational risks is over remained unanswered because the Court in Aravanis found that, even if Maryland law recognizes a chronological change in status, the trial court had given jury instructions in accordance with such change in status urged by the plaintiff. In the course of addressing the plaintiff’s claim of elevated status, the Court in the Aravanis case pointed out the nature of services performed by firemen ( 237 Md. at 250-251 , 206 A.2d 148 ): “When a fire department is called to fight a blaze, the cause of the blaze is immaterial. It may be the result of ⁴⁴² actual negligence on the part of the property owner, such as the dropping 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.” Thus, although the Aravanis decision purported to be grounded on the law of landowner’s liability and the status of the plaintiff on the premises, the Court recognized the implications of a fireman’s public function regardless of whether he was classified as a licensee or invitee upon the property. The Court went on to note that a fireman’s occupation does not involve facing unlimited risks on behalf of the public (id. at 252, 206 A.2d 148 ): “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.” This Court addressed the matter most recently in Sherman v. Suburban Trust Co., 282 Md. 238 , 384 A.2d 76 (1978). Sherman, a police officer, 4 responded to a call from a bank where someone was attempting to pass a forged ⁴⁴³ check.

While Sherman was inside a small teller’s cage, a bank employee accidentally dropped the forged check on the floor. Sherman bent over to pick it up and struck his back on a coin changing machine. Chief Judge Murphy, speaking for the Court in Sherman , recognized the Court’s position in Aravanis that, after the initial period of anticipated risk in fighting a fire, a firefighter or policeman may be entitled to ordinary due care. Sherman contended that, while the occupational risk of police work existed when he entered the bank, it was over when the injury occurred.

The Court assumed the possibility of a change in status, but held that “Sherman was injured during, and not after, the initial period of his anticipated occupational risk, and from a hazard reasonably foreseeable as a part of that risk. He was not injured by reason of any active dangerous force unleashed on the premises after he entered upon the routine performance of his duties.” Id. at 246 , 384 A.2d 76 . In sum, under the foregoing cases, the owner or occupant of the premises is not under a duty of care to keep the premises prepared and safe for a fireman. The owner or occupant of the premises must, however, abstain from willful or wanton misconduct or entrapment.

This encompasses a duty to warn of hidden dangers, where there was knowledge of such danger and an opportunity to warn. Additionally, in some circumstances, when a fireman is outside of the anticipated occupational risk of fighting a fire he may be entitled to ordinary due care. The above-cited Maryland cases, in our opinion, applied the proper standard of care owed to firemen and policemen, and the decisions were correct. Nevertheless, the use of a premises liability rationale would not seem to be entirely appropriate for resolving the issues in cases like this.

A premises liability rationale does not encompass cases in which a fireman is injured by a fire caused by the negligence of someone other than the owner or occupier of the premises. In the present case, Westinghouse and Sting ⁴⁴⁴ Security are not landowners or occupiers but have invoked the fireman’s rule. In addition, other public employees, such as postmen and building inspectors, are generally held to be entitled to due care even though their counterparts in the fire and police departments are not. 5 Nevertheless, postal workers and building inspectors, like firemen and policemen, often enter land pursuant to legal authority rather than expressed invitation. Nothing in traditional premises liability law, however, furnishes a ground for classifying some of these public employees as invitees and others as licensees.

Moreover, although prior cases sounding in premises liability law had begun to define the extent to which firemen are deemed to anticipate certain occupational risks, the premises liability rationale itself does not provide a basis for delimiting the duties owed to firemen. Instead, it is an analysis of the relationship between firemen and the public whom they serve which best explains the fireman’s rule. Courts in other states have also questioned whether premises liability law is an adequate basis for the fireman’s rule. Most have concluded that firemen do “not fit comfortably within the traditional concepts” of landowner liability.

Krauth v. Geller, 31 N.J. 270, 272 , 157 A.2d 129 (1960). See, e.g., Pottebaum v. Hinds, 347 N.W.2d 642, 645 (Iowa 1984) (“basing the fireman’s rule on the status of the injured party would seem to unfairly limit the rule’s application to the landowner/occupant context, thus denying liability for negligent acts of these individuals but not for others whose negligent acts injure police officers or firemen elsewhere”); Calvert v. Garvey Elevators, Inc., 236 Kan. 570 , ⁴⁴⁵ 577, 694 P.2d 483 (1985) (“The Fireman’s Rule in Kansas is not to be based upon ‘premises law/ or categorizing fire fighters as mere licensees when performing their duties, but upon public policy”); Armstrong v. Mailand, 284 N.W.2d 843, 350 (Minn.1979) (“we conclude that firemen are not classified as licensees, invitees, or sui generis”). With few exceptions, courts elsewhere have retained the fireman’s rule but have based the rule on public policy considerations. 6 Some of these courts emphasize a public policy somewhat analogous to the assumption of risk doctrine applied in negligence cases. Firemen are engaged by the public to encounter risks inherent in firefighting; they assume those risks, and therefore they should not recover for fire-related injuries.

A leading case discussing this rationale for the fireman’s rule is Krauth v. Getter, supra, 31 N.J. at 273-274 , 157 A.2d 129 , in which Chief Justice Weintraub stated for the court as follows: “The rationale of the prevailing rule is sometimes stated in terms of ‘assumption of risk/ used doubtless in the so-called ‘primary’ sense of the term and meaning that the defendant did not breach a duty owed, rather than that the fireman was guilty of contributory fault in responding to his public duty.... Stated affirmatively, what is meant is that it is the fireman’s business to deal with that very hazard and hence, perhaps by analogy to the contractor engaged as an expert to remedy dangerous situations, he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for ⁴⁴⁶ which he is trained and paid. Probably most fires are attributable to negligence, and in the final analysis the policy decision is that it would be too burdensome to charge all who carelessly cause or fail to prevent fires with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created, occurences.” See Walters v. Sloan, 20 Cal.3d 199 , 142 Cal.Rptr. 152, 155 , 571 P.2d 609, 612 (1977) (“one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby”);