LAST MONTH we opened up a Pandora’s box in discussing the injury theories which are currently being used in this country. Continuing along the same line, we can now consider some of the concepts involved as justification (or lack of) for a fireman to be on the premises in the first place.
By what authority then does a fireman go upon the property of another? Here are some of the most common theories employed:
- A fireman is often considered a licensee under the law. By this is meant that the law and not the landowner is his authority for entry. Consider the following example:
- In some cases firemen are considered to be invitees of the property owner. Various mechanisms are used to arrive at that conclusion. Sometimes it is said that the fireman is an implied invitee of the landowner. In these cases one must recognize that there is usually no express invitation made to a given fireman. Although it may be true in some instances that the owner is the person who actually turns in the alarm of fire, the gist of the theory is the fact the law implies that since a fire is in progress, the owner, if he were on the spot, would in fact invite the fireman onto the property.
- If the fireman is not an invitee or a licensee, a chance exists that he may be considered a trespasser on the property. Needless to say, a trespasser is one who is on the property without the permission of the owner.
In Baxley v Williams Constr. Co. (1958) 98 Ga App 662, 106 SE2d 799, the court held demurrable a petition by a fireman for personal injuries, including a broken back, suffered when he fell into an unlighted excavation at a construction project at which a fire had broken out, because the fireman had the status of licensee, to whom the defendants, who were the general contractor and two other corporations engaged in the construction work, were not liable for anything but affirmative acts amounting to willfulness, and toward whom they owed no duty to keep the premises safe, except from “pitfalls, mantraps and things of that kind.”
The court said that the rule that a fireman is a licensee “is based on sound public policy” because a fireman’s right to go upon premises to extinguish a fire is based upon the permission of the law rather than the invitation of the owner or occupier . . . “even if the owner or occupier turns in the alarm.” The owner or occupier may not deny a fireman permission to enter upon premises to extinguish a fire thereon, and “the basic reason for the rule” is that it is impossible to foresee the precise place where the fireman’s duties may call him. To require an owner or occupier to exercise at all times the high degree of care owed to an invitee . . . “would be an intolerable burden which it is not in the best interest of society to impose.”
Consider also the following case where a Class I liquid was involved:
In Eckert v Refiners Oil Co. (1923) 17 Ohio App 221, the court held demurrable a petition alleging the death of a fireman in a fire on premises used for storing and selling gasoline and oil, where the negligence charged was allowing gasoline and oil to escape and saturate the ground, and gasoline vapors to permeate the air, maintaining defective cutoff valves, and permitting employees to smoke and use matches on the premises, because: a) a fireman entering upon premises to extinguish a fire takes the premises as he finds them, except for dangers known to the owner and not discoverable by the fireman in the exercise of ordinary care; and b) anyone approaching the gasoline storage plant in question would be warned by the surroundings that it was a gasoline station or plant, and it is common knowledge that fire near such tanks frequently causes serious explosions.
Having discussed briefly some of the basic concepts covering the status of firemen, we now have a basis for discussion of the duties that property owners owe to the fireman as he goes about his fire fighting duties. You are specifically cautioned that the law in this field should not be construed as hard and fast. Your writer has greatly oversimplified the foregoing concepts so that it will be more palatable for you. Next month we shall continue this topic.