MULL v. KERSTETTER
373 Pa.Super. 228 (1988)
540 A.2d 951
Rick L. MULL and Dianne L. Mull, His Wife, Appellants, v. Abraham F. KERSTETTER.
Supreme Court of Pennsylvania.
Filed April 20, 1988.
Andrew H. Dowling, Harrisburg, for appellee.
Before CAVANAUGH, OLSZEWSKI and POPOVICH, JJ.
This is an appeal from the order of the Court of Common Pleas of Snyder County sustaining the preliminary objections in the nature of a demurrer of the defendant/appellee/Abraham F. Kerstetter and dismissing the complaint of the plaintiffs/appellants/Rick L. and Dianne L. Mull, his wife. We reverse.
In assessing the propriety of the actions of the court below, we must keep the following in mind; namely:
Gekas v. Shapp,
In light of the aforementioned, we start our review with an examination of the plaintiffs' complaint. It is alleged therein that, at approximately 12:30 a.m. on the 14th day of May, 1985, Rick L. Mull, a volunteer fireman, responded to a fire alarm called in by the defendant at his premises. Once at the scene, "the Plaintiff was hosing the fire when he stepped into an open window well, which was unguarded, unmarked and unprotected causing serious bodily injuries to the Plaintiff." (Paragraph 7)
Further, the plaintiff avers that, as a business invitee on the defendant's premises, he was owed "a higher degree of care than the social invitee or trespasser." (Paragraph 11) Thus, it is the plaintiff's contention that the defendant's failure to illuminate the yard, to warn about the holes or to keep the plaintiff from "falling into the dangerous pit or well" imputed negligence to the defendant and held him accountable for the injuries sustained and the damages incurred now and in the future for allowing a dangerous condition to subsist on his premises and taking no steps to remedy the hazard. (Paragraph 10) In particular, the plaintiff seeks recovery for the loss of his present and future income because of his inability to use the fingers on his right hand. He asks also for damages stemming from his pain and suffering and reimbursement for his medical treatment.
In count II of the complaint, the plaintiff/wife seeks compensation for the loss of consortium, companionship and society with her plaintiff/husband.
In response thereto, the defendant filed preliminary objections in the nature of a demurrer restricted to the sole contention that the complaint failed to state a cause of action upon which relief could be granted, and, thus, called for its dismissal. A brief was also filed in support of the preliminary objections and discounted the plaintiff's ability to recover for his injuries under what is commonly known
The plaintiff filed a reply brief in opposition to the defendant's preliminary objections. With the position of both parties squarely stated, the court entered a ruling in favor of the defendant and against the plaintiff on the basis of the "Fireman's Rule", a rule which it found to exist in this jurisdiction. See Lower Court's Opinion at page 4, citing Ruhl v. Philadelphia, 346 Pa. 214, 29 A.2d 784 (1943) for such a proposition. A timely appeal was filed with this Court.
The central issue to be decided by this Court, which is one of first impression, relates to whether the "Fireman's Rule" is law in this jurisdiction, and, if so, whether it precludes the plaintiff/volunteer fireman from recovering for injuries sustained on the defendant's property while extinguishing a fire.
The court below is of the mind that the "Fireman's Rule" has been adopted in this jurisdiction and does so on the basis of Ruhl v. Philadelphia, supra. On the other hand, it has been noted by two District Courts that the Pennsylvania Supreme Court has yet to consider whether to adopt the "Fireman's Rule".
Our examination of the case law on the subject at hand, albeit sparse, leads us to conclude that the Pennsylvania
It appears from the opinion written in Ruhl v. Philadelphia, supra, that the decedent, a fireman, was directed by his superior to stand on the opposite side of the street from where the fire was located and to remain there until further notice. This location was considered to be "perfectly safe" by his superior because the fire was across the street. However, fifteen minutes after an explosion on the street opposite to where the decedent stood occurred, a second explosion took place within the premises situated behind the decedent and caused his death.
In the course of affirming the judgment and concluding that the decedent/appellee was not guilty of contributory negligence nor did he assume the risk of injury by his status as a fireman, the Supreme Court stated:
346 Pa. at 220-21, 29 A.2d at 787.
Instantly, the plaintiffs claim that the defendant was negligent in maintaining a hazardous condition on his premises in the form of "window wells", approximately three to four feet in depth, the detection of which was impaired, purportedly, by the lateness of the hour and the absence of illumination as to their location. Accordingly, as we read the complaint, the "breach of duty here asserted does not concern itself with the manner in which the fire was started. Rather, it involves the duty owed to any licensee who enters the premises — it is a duty to warn of dangerous
In other words, reference to the "Fireman's Rule" was inappropriate to the disposition of the defendant's preliminary objections. Instead, given Ruhl's preoccupation with the complainant's conduct ("what was he doing at the time he was hurt"), as opposed to his appellation ("fireman"), the court below should have determined the sufficiency of the complaint under a negligence standard, i.e., was there an allegation of a duty owed the plaintiff by the defendant (either statutory or common law)?, was there a breach of the duty asserted?, and did the plaintiff sustain any injuries as a proximate cause of the breach of the duty owed by the defendant? Id.; see also Prosser on Torts, § 30 (4th Ed. 1971).
In light of the error of law committed by the court below, i.e., relying on the "Fireman's Rule" to sustain the defendant's preliminary objections on a per se rule that firemen assume the risk of their on-duty injuries as a matter of law, it must be rejected. See Ruhl v. Philadelphia, supra; Herman v. Welland Chemical, Ltd., supra. As a result, we deem it prudent to reverse the order appealed and remand to afford the court below the opportunity to assess the sufficiency of the complaint under general principles of negligence law. This is proper since the plaintiffs' complaint does not indicate on its face, given our ruling this day, that their claim cannot be sustained, nor that the law will not permit them recovery. See Gekas v. Shapp, supra; Herman v. Welland Chemical, Ltd., supra;
We caution that if a determination is made that the complaint is not deficient in the law of pleading in alleging a cause of action premised upon negligence, it will be for the jury/fact-finder to decide ultimately whether the plaintiff showed a want of due care under the circumstances to recover damages. See Ruhl v. Philadelphia, supra; Concurring and Dissenting Opinion of Justice Roberts in Kinney v. Sun Oil Co., supra; see also Hild v. Montgomery, 342 Pa. 42, 20 A.2d 228 (1941); Bennett v. Kurland, supra.
Order reversed and case remanded for proceedings not inconsistent with the opinion herein written. Jurisdiction is not retained.
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