Flowers v. Sting Security, Inc.

MOYLAN, Judge. In the course of fighting a fire at the Rock Creek Terrace Apartments in Rockville on October 28, 1981, the appellant, David Flowers, a volunteer firefighter with the Kensington Volunteer Fire Department, fell 12 stories down an open elevator shaft. As a result of the fall, he suffered serious permanent injuries. On October 14, 1983, appellant filed suit, seeking recovery against ten different defendants, three of whom are appellees on this appeal.

The appellees before us are Sting Security, Inc. (Sting), a service which provided security at the apartment building; Larry W. Cline, an employee of Sting, who was sued in his individual capacity; and Westinghouse Electric Corporation (Westinghouse), the manufacturer of the elevator at the apartment building. Westinghouse demurred to appellant’s pleading. A hearing was held on January 27, 1984, at which the demurrer was sustained with leave to amend. An amended declaration concerning Westinghouse was filed by the appellant on February 21, 1984.

On January 26, 1984, appellees Sting and Cline demurred to the original pleading and a hearing ¹²² was scheduled for April 4, 1984. In response to the amended declaration of appellant, Westinghouse filed a second demurrer on March 12, 1984, and this matter was also set for the April 4 hearing. At that hearing, presided over by Judge Perry G. Bowen, Jr. in the Circuit Court for Prince George’s County, both demurrers were sustained without leave to amend based upon the court’s application of the “Fireman’s Rule.” In sustaining the demurrer as to Sting and Cline, Judge Bowen reasoned: “The Court: And the basis for the claim is that these persons negligently performed their duties to the owner, so that persons or — persons or persons unknown were able to start a fire on the premises or set a fire, or may have set a fire. Once again, we think — we have some difficulty with that under any theory of law, but clearly, it falls precisely within the Fire Fighter’s Rule.

Fires are what firemen are called to confront, and whether they’re negligently set, intentionally set or acts of God does not make any difference. A fire is a fire. To say that someone had a duty to prevent the fire from occurring, and therefore, the fireman is entitled to claim directly against them, we think doesn’t fit into any pattern of law that we’re familiar with, and in any event, falls squarely within the Rule. We, therefore, sustain the demurrer of these defendants without leave to amend.” Judge Bowen also applied the Fireman’s Rule in sustaining the demurrer of Westinghouse.

From these rulings, appellant brings this appeal. The appellant attacks the lower court’s application of the Fireman’s Rule on essentially three grounds. He claims 1) that the Fireman’s Rule should not have been applied at all based upon the factual allegations and legal theories of recovery presented; 2) that the Fireman’s Rule should not have been applied because it violates appellant’s rights under the Fourteenth Amendment of the United States Constitution and Article 24 of the Maryland Declaration of Rights; and 8) that the Fireman’s Rule and use of the ¹²³ invitee, licensee, and trespasser distinction should be abolished and a general negligence standard of reasonable care should be applied. That first contention — the main thrust of the appellant’s argument on this appeal — is, in turn, broken down into distinct sub-issues: 1) that the appellant was an invitee or a licensee by inviation and not a bare licensee upon the burning premises; 2) that Sting and Cline were not the landowners and were not, therefore, eligible for the limitation upon their liability created by the Fireman’s Rule; 3) that a count against Sting and Cline based upon a theory of strict liability rather than upon ordinary negligence would be exempt from the Fireman’s Rule in any event; and 4) that the claims against Westinghouse would in no event be affected by the Fireman’s Rule.

Some initial inquiry is called for into the Fireman’s Rule itself. The Fireman’s Rule In view of a significant line of precedential authority, there is little difficulty in reaching a decision in this case by applying the Fireman’s Rule. The far more difficult task is to articulate a theoretically sound rationale for the decision. That, in turn, requires a probing for the deeper legal principles, and therefore undergirding social purposes, behind the Fireman’s Rule.

The prevailing Rule itself, as it limits the tort liability of landowners or others toward a fireman (or policeman) actually engaged in fighting a fire (or apprehending a criminal), is a practical rule in search of an adequate theory. It is an area of law that is in ferment, not so much in terms of the decisions being reached but in terms of the explanations being provided for those decisions. What is emerging is that the Fireman’s (or Policeman’s) Rule 1 appears to be ¹²⁴ predicated upon a cluster of loosely related reasons, no one of which is necessarily sufficient to explain the Rule in all of its manifestations. Although neither the case law nor the treatises have meticulously isolated the component strands, 2 an emerging 3 rationale based upon assumption of risk is discernibly interwoven with the older rationale based upon the status of the visiting fireman upon the property.

Closely related with the assumption of risk analysis is the notion that especially hazardous governmental functions, such as firefighting and policing, are the collective responsibility of society as a whole and are not functions relegated to dependence upon ordinary tort recovery. A traditional and somewhat simplistic statement of the Fireman’s Rule would run essentially as follows: a fireman ¹²⁵ may not recover from private parties for injuries sustained in the course of carrying out his professional duties, but is limited to statutory remedies such as workmen’s compensation. Aravanis v. Eisenberg, 237 Md. 242 , 206 A.2d 148 (1965). Fireman have generally been accorded the status of licensees when entering property to extinguish a fire.

Steinwedel v. Hilbert, 149 Md. 121 , 131 A. 44 (1925); Aravanis, supra; Sherman v. Suburban Trust Co., 282 Md. 238 , 384 A.2d 76 (1978). The common explanation for this classification is because “they [firemen] are likely to enter at unforeseeable times, upon unusual parts of the premises, and under circumstances of emergency, where care in preparing for the visit cannot be expected and a duty to make the premises reasonably safe for them at all times would constitute a severe burden.” Sherman, supra, at 282 Md. 243 , 384 A.2d 76 . As licensees, firemen are owed the duty by the owners and occupants of the property “of abstaining from wilful or wanton misconduct or entrapment, ... [which] encompass[es] a duty to warn of any hidden dangers, where there [is] knowledge of such danger and an opportunity to give warning.” Id. There is nothing wrong with that statement of law except that it is too limited an explanation of a potentially broader legal phenomenon.

Depending exclusively upon the status of the fireman as a visitor upon the property, it explains only the rights of the fireman vis-á-vis the property owners or others responsible for the maintenance and upkeep of the property. 4 All of the earlier Maryland cases applying the ¹²⁶ Fireman’s Rule have dealt with a fireman suing the property owners themselves; an explanation of the Rule based upon the status of the fireman upon the property was, therefore, adequate to explain those decisions. The Status of the Fireman Upon the Property Even this limited instance of a potentially broader rule, however, was not free of semantic difficulty. The fireman was deemed by the earlier cases to be merely a licensee upon the property; the later cases recognized that his status could change, geographically or chronologically, into that of an invitee. Literally, of course, he was neither a licensee nor an invitee but was rather sometimes “like a licensee” and at other times even “like an invitee.” The treatise writers have explored the analogy and have generally concluded that the fireman (or policeman) is in a status sui generis, not identical with that of a licensee (or sometimes invitee) but rather analogous to them.

The fireman (or policeman) is not literally either an invitee or a licensee, of course, because he has not received, and does not need, an invitation from the owner or the consent of the owner to enter upon the land. He is there, rather, under governmental authority to serve a public purpose. He is frequently analogized to a licensee, and sometimes even said to be a licensee, because his bundle of rights vis-a-vis the landowner most closely resembles that of a licensee. This troubled problem of categorizing cleanly the status of a public employee who comes upon the land pursuant to a legal privilege not emanating from the landowner was commented upon by W. Prosser, Handbook of the Law of Torts § 61 (4th ed. 1971), at 395-396: “The courts have encountered considerable difficulty in dealing with those who come upon the land in the exercise of a privilege not conferred by the consent of the occupier____ [T]hese have consisted for the most part of public ¹²⁷ officers and employees, who enter in the performance of their public duties.

Such individuals do not fit very well into any of the arbitrary categories which the law has established for the classification of visitors. They are not trespassers, since they are privileged to come. The privilege is independent of any permission, consent or license of the occupier, and they would be privileged to enter, and would insist upon doing so, even if he made active objection---- [S]ome writers, particularly in England, have advocated an additional and separate category for them. Thus far, however, the American courts always have proceeded to cram them, with some straining at the seams, into the sack of either licensees or invitees.” In 2 F. Harper & F. James, The Law of Torts (1956), § 27.14, “Persons entering premises as of right,” at 1501, the authors refer to this linguistic problem as they point out that policemen and firemen “are generally treated as licensees” even if they are not in fact licensees: “Policemen and firemen, on the other hand, are generally treated as licensees and not as invitees, even if the occupier has summoned them to protect himself or his property.

These officers owe a duty to the public to apprehend criminals or extinguish fires; the right to enter private property is a part of that duty, and does not depend on the private summons. Indeed, if the conditions for the exercise of the public duty exist, the occupier would not be privileged to exclude the officer. Quite properly, therefore, courts have found no invitation. But they have classified these officers as licensees, and while it may be a tolerable figure of speech to refer to a license-in-law, there is no more actual consent in these cases than there is invitation.

And when there is, the occasional consent like the occasional invitation is legally insignificant. Even if there were good reason to construct a class of visitors on the basis of the occupier’s consent, therefore, there would be no better conceptual reason than a poor figure of speech for putting policemen and firemen into that class.” ¹²⁸ In terms of determining that limited degree of care owed .by the landowner to the fireman or the policeman, the degree of care owed by the landowner to a licensee provides the appropriate model. The very practical reasons for placing the fireman or policeman in this category were spelled out by Prosser, supra, at 397-398: “The one really valid basis for the distinction must lie in the fact that firemen and policemen are likely to enter at unforeseeable times, upon unusual parts of the premises, and under circumstances of emergency, where care in looking after the premises, and in preparation for the visit, cannot reasonably be looked for. A man who climbs in through a basement window in search of a fire or a thief cannot expect any assurance that he will not find a bulldog in the cellar.” Harper & James, supra, at 1501-1502, stresses the same practical reasons for limiting the liability of the landowner vis-a-vis the fireman or the policeman: “There are, however, other reasons besides the concepts of consent and invitation that may point to limited liability in these cases.

One that the courts have stressed is the infrequency of visits by policemen and firemen, and the unpredictability of the time and place of their visit. A duty to make all the premises reasonably safe for them all the time would therefore be a severe burden.” This earlier rationale — based upon the limited liability of the occupier of the land vis-a-vis the fireman — provides a sufficient base for affirming Judge Bowen in his sustaining of the demurrer of Sting and Cline, certainly with respect to the negligence counts. That they were not literally the owners or the occupiers of the land is immaterial. They were the agents of the landowners and were responsible for an aspect of the maintenance of the property, to wit, the providing of security.

The negligence claims against them allege that they failed to provide proper security for the building, which could have prevented the fire, and were negligently responsible for the start of the ¹²⁹ fire itself. They will be treated, for limited purposes of determining the applicability of the Fireman’s Rule, as being in the shoes of the occupier of the land. We turn then to the status of the fireman upon the property. The progenitor case in Maryland of Steinwedel v. Hilbert, supra, bears a strong factual similarity to the case sub judice.

There, as here, a fireman (literally, a member of a fire salvage corps but treated, for tort purposes, as the functional equivalent of a fireman) was seriously injured by falling into an elevator shaft left open and unguarded. The holding of the Court of Appeals, based upon the fireman’s status as a mere licensee, was unequivocal, at 149 Md. 123 -124, 131 A.2d 44 : “[T]he 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____‘He must take the property as he finds it, and is entitled only not to be led into danger, “something like fraud.” ’ ” (citations omitted). Steinwedel recognized implicitly what Aravanis v. Eisenberg, supra, later recognized explicitly: “[T]hat there may be a change of status, ‘geographical or chronological,’ ” from “licensee to invitee.” 237 Md. at 253 , 206 A.2d 148 . Both Steinwedel and Aravanis referred, in this regard, to the Restatement (Second) of Torts and the early landmark case of Meiers v. Fred Koch Brewery, 229 N.Y. 10 , 127 N.E. 491 (1920), which indicated that a fireman might be in the enhanced status of an invitee if “he was injured upon a part of the premises open for public use.” Id., [237 Md.] at 253, 206 A.2d 148 .

Steinwedel distinguished Meiers v. Fred Koch Brewery by pointing out that that “decision is carefully limited ... to liability to persons rightfully using approaches prepared and left open for access to the property.” 149 Md. at 124 , 131 A.2d 44 . ¹³⁰ In the Meiers case, the fireman fell into an open coal hole at night while traversing a passageway, kept open for the public by night as well as by day, on his way to fight a fire in a barn that lay well beyond the public, but perilous, passageway. In distinguishing its situation from that in the Meiers case, the Steinwedel Court pointed out, at 149 Md. 125 , 131 A.2d 44 : “In this present case 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. We are to decide, now, only whether upon common law principles the owners or the tenant could be held liable to the injured firemen, or salvage corps man, for failing to exercise care to protect him from falling into an elevator shaft anywhere on the premises, while he is at work putting out a fire.” This geographic change of status from licensee to invitee did not take place under the facts of this case. The common area on the 12th floor of this residential apartment building, where the fire was being fought and where the appellant fell into the open elevator shaft, was an area, to be sure, ordinarily “open for public use.” At the critical time herein pertinent, however, it was the site of a raging conflagration.

The appellant was in that precise place at that precise time for the limited and exclusive purpose of fighting a fire. 5 This was not, within the contemplation of this geographic change of status law, an area through which the fireman was passing, in transit, on his way to fight a fire in some other part of the building. The chronological change of status, dealt with at great length in Aravanis v. Eisenberg, supra, is not remotely applicable ¹³¹ here. The injury in this case occurred while the appellant was actively engaged in fighting the fire itself. 6 Any distinction, moreover, between a part of the building held open to the public and a part of the building not held open to the public is immaterial to the claim brought by the appellant, not against the building owner and not against Westinghouse, but against Sting and Cline. Their alleged negligence was in not providing proper security for the building generally, thereby enhancing the possibility that the fire itself would be set.

The claim was not based upon their negligent maintenance or lack of maintenance of the building in any physical respect. The appellant, rather, based his claim against them upon the fact that there had been a series of suspicious fires at the apartment complex in recent months. He claimed that in light of those suspicious blazes, the appellees Sting and Cline had a duty 1) to take further steps to reduce the possibility of another fire, 2) to take fire prevention measures that would reduce the spread of fires that might possibly be set, 7 or 3) to provide a warning to all occupants, guests, or other entrants into the building, including firemen, of the potential fire hazard. (It does seem redundant to warn a fireman entering a burning building that there is a potential fire hazard.

Could he, thus alerted, forsake his duty?) ¹³² Negligently Causing a Fire Not a Cause of Action By a Firefighter Quite aside from the status of the appellant on the property and quite aside from whether the claim is based upon negligence or upon strict liability, there is a fundamental flaw in the suit brought by the appellant against Sting and Cline. They are charged by him not with having negligently created a hazard which he encountered in the course of fighting the fire, but rather with having negligently caused the fire itself. This is simply not a cause of action that may be brought by a fireman. Although, to be sure, Aravanis v. Eisenberg, supra, was a case where the defendant was the landowner himself, the language of Judge Oppenheimer, at 237 Md. 250 -251, 206 A.2d 148 , seems unmistakably to carry a broader import: “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 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.” The national case law, with the same thrust as Aravanis v. Eisenberg, is clearly not limited to suits against landowners.

Grable v. Varela, 115 Ariz. 222 , 564 P.2d 911 (1977), did not involve a suit against a landowner but against another who had negligently caused the fire. The holding of the case was clear, at 564 P.2d 912 : “The ‘fireman’s rule’ which we here discuss negates liability to a fireman by one whose negligence causes or contributes to the fire which in turn causes the death or ¹³³ injury of the fireman. Other jurisdictions are almost unanimous in denying recovery by an injured fireman from one whose sole connection with the injury is that his negligence caused the fire.” The Supreme Court of California announced a similar holding in Lipson v. Superior Court of Orange County, 31 Cal.3d 362 , 182 Cal.Rptr. 629 , 644 P.2d 822, 831 (1982): “Where the defendant’s only act was to cause the fire in which the fireman was injured, it is immaterial whether the defendant’s act was negligent or ultrahazardous.” In Steelman v. Lind, 97 Nev. 425 , 634 P.2d 666, 668 (1981), the Supreme Court of Nevada rendered a similar holding: “Whether the negligently created risk which results in a fireman’s or policeman’s injury is the reason for his being at the scene in his professional capacity determines the applicability of the rule.” Solgaard v. Guy F. Atkinson Co., 6 Cal.3d 361 , 99 Cal. Rptr. 29, 33 , 491 P.2d 821, 825 (1971), held that “firemen cannot complain of negligence in the creation of the very occasion for [their] engagement.” See also Giorgi v. Pacific Gas & Electric Company, 266 Cal.App.2d 355, 359 , 72 Cal.Rptr. 119 (1968), where a fireman was not permitted to maintain a suit for negligence against a company whose allegedly negligent maintenance of electrical poles and wires had caused the fires in question.

The Assumption of Risk Rationale Judge Bowen’s sustaining of the demurrer by Westinghouse (and arguably his sustaining of the demurrer by Sting and Cline with respect to the strict liability count) presents a problem that cannot be handled by the older rationale that simply limits the duty of care owed by a property owner to a licensee. 8 As more modern tort law ¹³⁴ makes overwhelmingly clear, however, the Fireman’s Rule by no means rests exclusively, or even predominantly, upon that older rationale. The major modern justification for the Fireman’s Rule is based upon the notion of assumption of risk. The movement away from the old dispensation was discussed by Grable v. Varela, supra, at 564 P.2d 912 : “While there is little doubt that the fireman’s rule originated in the land occupier cases, the rule is not limited to injuries suffered by firemen on land belonging to or occupied by the defendant.” A leading statement of the newer analysis is contained in Walters v. Sloan, 20 Cal.3d 199 , 142 Cal.Rptr. 152, 155 , 571 P.2d 609, 612 (1977): “[T]he fireman’s rule is based on a principle as fundamental to our law today as it was centuries ago. The principle is not unique to landowner cases but is applicable to our entire system of justice — one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby.

We have consistently applied this concept in our recent pronouncements in other cases of basic tort doctrine. These include cases dealing with product liability.” The Supreme Court of Oregon pointed out in Christensen v. Murphy, 296 Or. 610 , 678 P.2d 1210, 1216 (1984), that, “the rationale of the rule accepted in Spencer [v. B.P. John Furniture Corp., 255 Or. 359 , 467 P.2d 429 (1970) ] was not premises liability, but assumption of risk and policy considerations.” It went on, “The rationale for the ‘fireman’s rule’ in Oregon has been ‘implied’ assumption of risk.” Lipson v. Superior Court of Orange County, supra, provides a similar analysis, at 644 P.2d 827 : “The fireman’s rule is primarily based on the principle of law denominated assumption of risk. That principle holds that ‘one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby.’ ” ¹³⁵ See also Note, Assumption of the Risk and the Fireman’s Rule, 7 Wm. Mitchell L.Rev. 749 (1981); Comment, Negligence Actions by Police Officers and Firefighters: A Need for a Professional Rescuers Rule, 66 Cal.L.Rev. 585 (1978).

Primary vs. Secondary Assumption of Risk Within the context of serving as the primary basis for the Fireman’s Rule, the notion of assumption of risk is used in a very special sense. It is necessary to distinguish between a “primary” assumption of risk, which arises out of the special relationship between the firefighter and the public, and a “secondary” assumption of risk, which is an affirmative defense on a case-by-case basis and which closely resembles contributory negligence. The distinction between these conceptually very different varieties of assumption of risk was made clear by Harper & James,