Hart v. Shastri Narayan Swaroop, Inc.

CATHELL, J. This case arises from a claim sounding in tort brought by firefighter Jonathan D. Hart and his wife, Sarina Hart, petitioners, in the Circuit Court for Baltimore County, against Shastri Narayan Swaroop, Inc., respondent, the owner and operator of the Regal Inn on Pulaski Highway in Baltimore County. The impetus of petitioners’ claim, which was filed on June 30, 2000, was an injurious fall Hart suffered on January 25, 2000, while responding to a fire at the Regal Inn. On August 20, 2001, subsequent to the completion of discovery, respondent filed a motion for summary judgment, claiming that the petitioners, as a matter of law, were precluded from bringing the action pursuant to the fireman’s rule. 1 ⁵¹⁶ On November 5, 2001, following a hearing, the circuit court denied respondent’s motion for summary judgment. The case was tried before a jury beginning on March 10, 2003.

At the close of petitioners’ case, respondent moved for judgment. The circuit court denied respondent’s motion. At the close of the evidence, respondent renewed its motion but it was again denied by the circuit court. On March 12, 2003, the jury returned a verdict in favor of petitioners as against respondent and awarded damages in the amount of $454,396.43.

The judgment was entered on March 13, 2003. Respondent thereafter filed an appeal to the Court of Special Appeals. On July 19, 2004, the intermediate appellate court issued its opinion, Shastri Narayan Swaroop, Inc. v. Hart, 158 Md.App. 63 , 854 A.2d 269 (2004), holding that the fireman’s rule was applicable to petitioners’ claim and “the circuit court therefore erred in denying [respondent’s] motion for summary judgment and motions for judgment....” Id. at 66 , 854 A.2d at 271 (alteration added). On September 1, 2004, petitioners filed a Petition for Writ of Certiorari to this Court.

On November 12, 2004, we granted the petition. Hart v. Swaroop, 383 Md. 569 , 861 A.2d 60 (2004). Petitioners present a sole question for our review, which we rephrase for the sake of clarity as follows: Does the fireman’s rule prevent a firefighter from recovering damages from a property owner for injuries suffered when the firefighter fell into an open stairwell while performing his firefighting duties? We hold that the fireman’s rule is applicable to the circumstances surrounding Hart’s injury and, therefore, the fireman’s rule bars petitioners’ tort claim against the respondent motel owner.

As we shall discuss, Hart’s injuries, which he ⁵¹⁷ sustained while in the performance of his occupational duties, were the direct result of a fall occasioned by his inability to perceive his surroundings due to the voluminous amount of smoke emanating from the motel fire. Facts In the early morning hours of January 25, 2000, a fire broke out at the Regal Inn, a motel located at 8005 Pulaski Highway in Baltimore County and owned and operated by respondent. Upon being alerted that smoke was coming from one of the motel rooms, the motel’s night manager promptly pulled the motel’s fire alarm and called 911. At the time of the January 25th fire at the Regal Inn, Hart was employed as a Lieutenant with the Baltimore County Fire Department and assigned to Station Number 15, Eastview.

Hart was one of many firefighters of the Baltimore County Fire Department that responded to the call received at approximately 4:30 a.m. concerning the fire at the Regal Inn. His assigned functions at the scene of the fire were search and rescue, and ventilation. Upon arrival at the Regal Inn, the firefighters encountered a “heavy volume of fire on the second floor extending onto the roof’ and heavy smoke conditions making visibility minimal. Hart was immediately ordered to perform search and rescue efforts on the “Delta” side of the building. 2 After gathering his necessary firefighting equipment, including a thermal imaging camera, 3 Hart proceeded to the “Delta” side of the Regal Inn. ⁵¹⁸ After making his way to a parking lot on the “Delta” side of the Regal Inn, Hart sought a way to access the second floor of the motel to search for any trapped occupants.

In order to see better through the smoke, which by that time had enveloped the area in a shroud of darkness, he activated his thermal imaging camera and through it viewed the immediate areas of the building. Hart saw that heat from the fire was venting from the second floor but that there appeared to be no fire on the first floor of the motel. He then searched for a stairway to the second floor and saw through the thermal imaging camera what he believed to be a stairway to the second floor. Moving toward the perceived stairway, Hart removed his thermal imaging camera and used a railing on the side of the building to guide his way through the dense smoke.

Hart admittedly was moving very slowly at the time because of the poor visibility and his concerns over tripping over a curb in the parking lot. As he continued to walk alongside the railing, Hart suddenly found himself stepping into an open space and, unable to prevent his descent, fell several feet into the well of an open and unguarded stairwell. Hart suffered severe injuries as a result of the fall. Discussion Hart asks this Court to decide whether he can recover against respondent for the injuries he suffered as a result of his fall while performing his duties as a firefighter.

The answer to this question is to be arrived at by an examination of what has come to be known as the “fireman’s rule” and whether this common-law rule, which generally prevents firefighters from “recovering tort based damages inflicted by a negligently created risk that required their presence on the scene in their professional capacity,” applies. Crews v. Hollenbach, 358 Md. 627, 642 , 751 A.2d 481, 489 (2000). ⁵¹⁹ The fireman’s rule was first formulated in 1892 by the Illinois Supreme Court in Gibson v. Leonard, 143 Ill. 182 , 32 N.E. 182 (1892). The Illinois Supreme Court was faced with a situation where, while firefighters were on the scene of a fire, a rope on a freight elevator in the burning building snapped, dropping a heavy counterweight, which then fell on a firefighter’s leg, causing so substantial an injury to the firefighter’s leg that it had to be amputated above the knee. Utilizing the theory of premises liability and finding that the injured firefighter was to be classified as a mere licensee and not an invitee, the court barred the firefighter’s action against the landowner, stating that “the general rule is that the licensor assumes no duty to the licensee, except the duty to refrain from affirmative or willful acts that work an injury.” Id. at 184 , 32 N.E. 182 .

As this Court has recognized, “[o]ne explanation ... for classifying firemen ... as licensees upon premises, rather than invitees, is because they 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 v. Suburban Trust Co., 282 Md. 238, 242-43, 384 A.2d 76, 79 (1978). Maryland courts first adopted the fireman’s rule in 1925 in the case of Steinwedel v. Hilbert, 149 Md. 121 , 131 A. 44 (1925). In Steinwedel , a member of a “fire insurance salvage corps,” 4 who this Court determined was “in no more favorable a position, under common law principles, than a fireman,” id. at 124 , 131 A. at 45 , was called to the scene of a fire and was injured when he fell into an open elevator shaft on the premises that he claimed was “negligently left open and unguarded.” Id. at 122 , 131 A. at 45 . In its discussion as to whether the firefighter’s negligence claim could proceed as ⁵²⁰ against the owners and occupants of the premises, this Court initially 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----‘He must take the property as he finds it, and is entitled only not to be led into danger, “something like fraud.” ’ ” Id. at 123-24 , 131 A. at 45 (citations omitted).

Observing that “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,” this Court held that the firefighter’s claim was thus barred by the fireman’s rule. Id. at 125 , 131 A. at 46 . This Court based its adoption of the fireman’s rule by classifying firefighters according to entrant-based categories of premises liability first recognized by the Illinois Supreme Court in Gibson and finding that firefighters at the scene of a fire are to be considered licensees on the premises. Forty years later, in Aravanis v. Eisenberg, 237 Md. 242 , 206 A.2d 148 (1965), we once again had an opportunity to examine the basis and application of the fireman’s rule in Maryland.

In that case, Aravanis, a firefighter who had responded to a fire at Eisenberg’s home, was severely burned by a sudden flash while he was fighting the fire. The fire started when Eisenberg, while working in his basement, knocked a tool off a work bench, causing the tool to fall down onto a jug containing acetone. The jug then burst and the acetone spilled over the basement floor, coming into contact with the pilot light of a hot-water heater nearby and igniting. Later, after Aravanis and other firefighters were on the scene fighting the fire, an explosion ensued that injured Aravanis as he was attempting to extinguish the fire with a water hose.

Aravanis argued that “he was injured not because of the fire ⁵²¹ itself but because the failure of the [EisenbergsJ to keep the acetone in a proper container was negligence operative apart from the fire, and that this negligence caused the injury.” Id. at 253-54 , 206 A.2d at 154 (alteration added). In our discussion as to whether Aravanis could recover damages against the Eisenbergs, notwithstanding the fireman’s rule, we first noted the entrant-based classification of firefighters set forth in Steinwedel, i.e., “[i]n general, the fireman has been held to be only a licensee.” Aravanis, 237 Md. at 248 , 206 A.2d at 151 . We did, however, acknowledge a growing undercurrent of dissatisfaction with the fireman’s rule being based on a premises liability theory, observing that: “In some jurisdictions there has been a change in the legal principles held applicable.... 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. If a fireman is to be regarded as an invitee, the property owner owes him a duty 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. “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.” Id. at 248-52 , 206 A.2d at 151-54 (citations omitted). Thus, we recognized that not every injury visited upon firefighters while they are performing their firefighting duties shall be ⁵²² noncompensable in an action for damages against the property owner or occupant.

In Flowers v. Rock Creek Terrace Ltd. Partnership, 308 Md. 432 , 520 A.2d 361 (1987), growing increasingly uncomfortable with the theory of premises liability as the underlying basis for the fireman’s rule, this Court broke from our previous reliance on a premises liability theory and established that the proper basis for the rule is public policy. In Flowers , David Flowers, a firefighter, suffered severe injuries when he fell twelve stories down an open elevator shaft while responding to a fire in an apartment building. Flowers apparently did not realize the dangerous open elevator shaft because the lobby area on the twelfth floor had become “filled with smoke making it nearly impossible to see.” Id. at 436 , 520 A.2d at 363 . He thereafter filed a negligence suit against the owner of the apartment building, the company hired to provide security services for the apartment building and the manufacturer of the elevator.

In considering whether the fireman’s rule barred Flowers’s claim for damages, we stated: “In sum ... 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[ 5 ] in our opinion, applied the proper standard of care owed to firemen and policemen[ 6 ] and the decisions were correct.

Nevertheless, the ⁵²³ use of a premises liability rationale would not seem to be entirely appropriate for resolving the issues in cases like this.... [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. “With few exceptions, courts elsewhere have retained the fireman’s rule but have based the rule on public policy considerations. 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. ... “In addition, some courts have pointed out that firemen receive compensation, such as salary, workers’ compensation, and special injury compensation, to fight fires for the public, and that taxpayers should not have to pay such moneys for the firefighting service and then be subject to liability if they call upon the service.... “We agree that the fireman’s rule is best explained by public policy.

As pointed out in Aravanis ... it is the nature of the firefighting occupation that limits a fireman’s ability to recover in tort for work-related injuries. Instead of continuing to use a rationale based on the law of premises liability, we hold that, as a matter of public policy, firemen and police officers generally cannot recover for injuries ⁵²⁴ attributable to the negligence that requires their assistance .... “We reiterate, however, that firemen and policemen are not barred from recovery for all improper conduct. Negligent acts not protected by the fireman’s rule may include failure to warn the firemen of pre-existing hidden dangers where there was knowledge of the danger and an opportunity to warn. They also may include acts which occur subsequent to the safety officer’s arrival on the scene and which are outside of his anticipated occupational hazards.

As indicated by this Court in Aravanis , the fireman’s rule should not apply ‘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[.]’ In these situations a fireman or policeman is owed a duty of due care____” Flowers, 308 Md. at 443-48 , 520 A.2d at 366-69 (citations omitted) (emphasis added) (footnotes added) (footnotes omitted). ' Applying the fireman’s rule, which now had as its basis public policy, to Flowers’s negligence claim relating to the danger of the elevator system, we stated that: “Although these are not allegations of negligence in the creation of the fire that originally brought the firemen to the apartment building, an accident involving an open elevator shaft nevertheless is within the range of the anticipated risks of firefighting. It is common knowledge that stairwells are to be used instead of elevators in case of fires; trained firemen must know of the risk that a fire may cause an elevator to malfunction. Moreover, an open elevator shaft is not a ‘hidden danger’ of which firemen must be warned. In Flowers’s declaration, he alleged that he was evacuating tenants from a ‘hallway of a building where there was heavy smoke. ’ An open elevator shaft concealed by the smoke of the fire is not a hidden danger in the sense of an unreasonable danger that a fireman could not anticipate upon attempting to perform his firefighting duties.” ⁵²⁵ Flowers, 308 Md. at 451-52 , 520 A.2d at 370-71 (citation omitted) (emphasis added).

In the case sub judice, it is obvious that Hart was in the midst of his firefighting duties at the moment he fell and was injured; he was making his way through heavy smoke to attempt to find a path to the second floor of the motel in order to locate any trapped occupants. Therefore, Hart can only escape the barring effect of the fireman’s rule if he can show that his injury occurred “after the initial period of his anticipated occupational risk” or because of a “pre-existing hidden danger! ] where there was knowledge of the danger and an opportunity to warn.” Flowers, 308 Md. at 448 , 520 A.2d at 369 . We can quickly dispose of any argument that Hart’s injury occurred after the initial period of his anticipated occupational risk while he was attempting his search and rescue efforts. When Hart was making his way through the thick smoke in an attempt to gain access to the second floor of the motel, he was unquestionably in the process of performing the duty for which he was ordered — to rescue any motel patrons trapped by the fire.

Thus, Hart’s injury occurred “during the period of anticipated occupational risk.” As we stated in Crews v. Hollenbach, 358 Md. 627 , 751 A.2d 481 (2000): “In our more contemporary fireman’s rule cases, a secondary rationale for the existence of the rule is found.... It focuses not on the public policy considerations of a firefighter as a public servant, but on firefighting as an inherently dangerous occupation. The fireman’s rule is based in part on the notion that when an occupation exists wholly or partially for the purpose of confronting dangers posed to the public, it is inappropriate to allow the worker to recover for injuries resulting from the very purpose for which he or she is employed. Stated differently, a firefighter who is injured by a risk inherent in the task of firefighting may be barred from asserting claims for those injuries because it is the firefighter’s duty to deal with fires and he or she cannot recover damages caused by the reason that made his or