LEGALLY SPEAKING

LEGALLY SPEAKING

DEPARTMENTS

MANY MEANS have been employed in recent years to effect a recovery from a building owner for injuries sustained by a fireman at a fire scene. Needless to say, the theories for recovery in these cases are interesting and diverse. The actions of the fireman, the fire officers, and the owner of the building can have an effect on the outcome of a given case. Consider the following court language:

“Action for $15,000 damages for personal injuries. The court dismissed the plaintiff’s petition on defendants’ motion, on the ground of failure to state a claim upon which relief can be granted. This case requires determination of the duty owed by owners of a building to firemen on the premises for the purpose of fighting a fire.

“The petition alleged that defendants owned an apartment building with a three-story porch, ‘running from the west wing to the east wing’; that the porch was in a dangerous and unsafe condition, insecurely fastened to the building and insecurely supported; and that defendants knew of such condition but ‘carelessly and negligently failed to put said porch in a reasonably safe condition.’

“Paragraphs 3, 4 and 5 of the petition further state: ‘3. Plaintiff states that on April 1, 1953, while in the discharge of his duty as a member of the Kansas City Fire Department, he was engaged with others of said fire department in fighting a fire in said building, and that to extinguish said fire, plaintiff and other firemen went on said porch with fire hose and other fire fighting equipment, and the ladders were placed against said porch.

“‘4. Plaintiff further alleges that while he and other firemen were fighting the fire as above described and attempting to extinguish the same, the defendant, Barney Cinnamon, was on the premises and had full knowledge of the presence of plaintiff and the other firemen on said porch, together with the fire fighting equipment above described; that notwithstanding his actual knowledge of their presence upon said porch and his knowledge that said porch was dangerous and unsafe for ordinary usage, he carelessly and negligently failed to warn plaintiff that said porch was dangerous and unsafe and insecurely attached and supported, and thereby permitted plaintiff and the other firemen to enter into a situation which was a dangerous trap.

“ ‘5. That as a direct result of defendants’ negligence in failing to repair said porch and put the same in a reasonably safe condition, said porch collapsed when plaintiff and the other firemen went thereon in order to fight said fire, and that as a direet result of the defendants’ negligence in failing to warn plaintiff of said condition and in permitting him to go into said dangerous trap, plaintiff fell when said porch collapsed.’ ”

The court went on to discuss what constituted an unusual hazard in their minds. Harmful chemicals and explosives they said qualified as hazards, hut gasoline did not qualify. They then discussed the duty-to-warn doctrine as follows:

“We have never held there is a duty to warn licensees of structural conditions, due to age and natural deterioration or to improper construction, or to warn of conditions due to casual negligence of persons with respect to objects or materials not inherently dangerous even in attractive nuisance cases. (See Huff v Gillioz, 344 Mol227, 130 SW2d 623; Emery v Thompson, 347 Mo494, 148 SW2d 479.) Such structural conditions are capable of being observed and ascertained. To require such a warning would place a very great burden on the possessor of land, especially as to firemen, because he would not know when they might come, what part of his premises they might use or how they would use them. It would also be likely to interfere with the operations of the firemen in fighting the fire, for a possessor to undertake to tell them where to go and where not to go.”

In the same case the court went on to discuss a structural case which was adversely decided against a fireman:

“Another case on which plaintiff relies . . . is Shypulski v Waldorf Paper Products Co. 232 Minn 394, 45 NW2d 549, 550. In that case, defendant had built a wall of concrete blocks in its warehouse which was . . . ‘dangerous to anyone entering the warehouse when there was any lateral pressure against the wall.’ There was a fire in the warehouse, which plaintiff and other firemen extinguished. Thereafter, they entered the warehouse to make certain that the fire had been entirely extinguished and, while there, the wall of concrete blocks collapsed, injuring plaintiff. The court held the owner owed the firemen no duty to keep the building in a reasonably safe condition, and that no liability could be predicted upon the existence of any defect in the condition of the wall. However, the court held that defendant did have a duty to disclose such a hidden danger known to it, citing mainly the explosion cases, the New York cases hereinabove discussed, and Sec. 345, Restatement of Torts. We think there is a real difference between explosive material which is almost certain to explode when reached by fire and a defective structural condition, whether due to faulty construction or age and natural deterioration. There can be hardly any doubt about what will happen in the case of explosives, while the result of stresses and strains on structural conditions is more of a matter of opinion, and it is likewise one about which those with the professional experience and judgment of firemen are usually capable of having an informed opinion. This may be a matter of degree. However, eonceming matters of degree, the United States Supreme Court once said: ‘Things do not have to be in broad contrast to have different practical and legal consequences. Actions take estimation from degrees, and of this life and law are replete with example.’ ”

In recent years we have had a multitude of cases involving injuries to firemen. It is safe to say that no hard rules present themselves at this time for any given state. Each case can be distinguished on the facts of the particular case. In the next few months we will discuss some of the concepts involved.

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