Decided November 13, 1987. Rehearing denied in Kreski, post, 1215.
These consolidated cases present an issue of first impression in Michigan. We are asked to adopt the so-called fireman's rule which precludes fire fighters and police officers from recovering damages for injuries arising out of the risks inherent in their respective professions. We are persuaded that the policy rationales underlying the rule are sound and practical, and thus, adopt the rule for this state.
FACTS AND PROCEEDINGS
KRESKI v MODERN WHOLESALE ELECTRIC
Plaintiff's decedent, Gary Kreski,
Plaintiff, individually, and as Gary Kreski's personal representative, brought a wrongful death action against Weinstein and Modern. The complaint, filed in Wayne Circuit Court on April 25, 1983, alleged that negligence on the part of Weinstein and Modern in maintaining the building
Weinstein and Modern moved for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8). The motion was based on the fireman's rule which, defendants stated, provides that "a duty is not owed by the owner or occupant of land upon which a fireman is injured during the discharge of his duty as a fireman." The court denied defendants' motion, and they appealed. The Court of Appeals granted leave to appeal on December 18, 1984.
In the meantime, on July 27, 1984, plaintiff filed an amended complaint, naming The Detroit Edison
The Court of Appeals affirmed the decision of the trial court as to all defendants, rejecting arguments that Kreski's status on the property was that of a licensee, and that the fireman's rule precluded plaintiff's claim.
With regard to Kreski's status while fighting the blaze, the Court recognized that fire fighters do not fit neatly into the definition of either invitee or licensee. However, the Court concluded:
Acknowledging that "courts almost universally recognize that a fireman cannot recover when [a] complaint is based on the same conduct that initially created the need for the officer's presence in [an] official capacity," id., 382, the Court declined to adopt a fireman's rule for Michigan. The Court analogized the fire fighting profession to that of a punch-press operator who arguably assumes the risk of losing a hand while working the press, but may nonetheless recover tort damages against a third-party tortfeasor. "In our view, it would be unfair to preclude fire fighters from recovering from third-party tortfeasors when other employees, even those engaged in dangerous occupations, can do so." Id., 386. Finding the remainder of defendants' arguments to be unpersuasive, the Court affirmed the decision of the trial court. Pursuant to Administrative Order No. 1984-2, the Court certified a conflict with the decision in its companion case, Reetz v Tipit, Inc, 151 Mich.App. 150; 390 N.W.2d 653 (1986). We granted leave to appeal, 426 Mich. 864 (1986).
Plaintiff, Laura Reetz, was employed by the City of Detroit as a police officer. On October 3, 1982, at approximately 10:30 A.M., plaintiff and her partner responded to a reported breaking and entering at the Tipit Lounge which was owned by Sharon Ulrich and managed by John Fontana.
Apparently, a passer-by, Donald Andrus, had noticed a broken window in the lounge and called the police. Plaintiff and her partner entered through the broken window and proceeded to investigate. The interior of the bar was dark, but plaintiff did not turn on her flashlight until she approached a pair of swinging doors. Plaintiff was seriously injured when she fell approximately ten feet to the basement through an open trap door immediately behind the swinging doors. The trap door, when closed, covered the stairs leading to the basement which was used for storage and dressing rooms. There was disputed evidence that Ulrich or Fontana routinely left the trap door open at night to allow a cat to get to the basement. Several officers testified at depositions that, after plaintiff fell, Andrus told them he had warned Ulrich and Fontana about the dangers of leaving the trap door open. At his deposition, Andrus denied making the statements or ever discussing the trap door with Ulrich or Fontana. By affidavit, Ulrich and Fontana both averred that they were present on September 24, 1982, when the bar was closed for vacation, at which time the trap door was shut. Further, neither Ulrich, Fontana, nor anyone following their instructions opened the bar again before plaintiff was injured.
Plaintiff filed her complaint in Wayne Circuit Court on July 22, 1983, alleging that, while on the premises acting within the scope of her employment, plaintiff enjoyed the status of invitee. As
Defendant moved for summary judgment pursuant to both GCR 1963, 117.2(1) and 117.2(3), now MCR 2.116(C)(8) and 2.116(C)(10), arguing that Reetz was a licensee while on the premises and, therefore, was not owed a duty of reasonable care. The trial court agreed and granted defendant's motion. Plaintiff's motion for rehearing and motion for leave to file an amended complaint were denied.
The Court of Appeals affirmed the grant of summary judgment and adopted 2 Restatement Torts, 2d, § 345. That section provides:
Therefore, since the bar was closed to the public at the time of plaintiff's injuries, plaintiff entered under the status of licensee. The Court cited with approval Nared v Omaha School Dist, 191 Neb. 376; 215 N.W.2d 115 (1974), in which the Nebraska Supreme Court, applying § 345, held that the defendant did not breach a duty to a police officer injured by falling through a false ceiling from a
In addition, the Court of Appeals affirmed the trial court's denial of plaintiff's motion to amend her complaint. We granted leave to appeal, 426 Mich. 865 (1986).
THE FIREMAN'S RULE
The precedential authority supporting the fireman's rule
The rationales underlying the fireman's rule are several, and sometimes the borderline between one blurs with the next. However, that in no way undermines the basic soundness of the rule. Indeed, as noted by the California Supreme Court, "[i]t is unnecessary to attempt to separate the legal theories or to catalog their limitations." Walters v Sloan, 20 Cal.3d 199, 204; 142 Cal.Rptr. 152; 571 P.2d 609 (1977).
The rule found its origin nearly one hundred years ago in the case of Gibson v Leonard, 143 Ill. 182; 32 NE 182 (1892). In Gibson, as well as most of the early cases involving fire fighters, the court analyzed the issue of liability on the basis of the traditional status categories of entrants upon the property of another — invitee, licensee, or trespasser.
Courts eventually became disenchanted with the inherent difficulties of fitting fire fighters into a specific category. Essentially, invitee status requires invitation and mutual benefit for the occupant and entrant. The entrant must be on the premises for a purpose directly or indirectly related to the owner's or occupant's business. Preston v Sleziak, 383 Mich. 442, 450; 175 N.W.2d 759 (1970), citing with approval 2 Restatement Torts, 2d, § 332. However, fire fighters and police officers enter the property not by invitation, express or implied, but by public right, or "privilege conferred by legal authority...." Prosser & Keeton, Torts (5th ed), § 61, pp 429-430. The owner or occupant may not prevent a fire fighter from entering the premises in the line of duty, and, in fact, may incur criminal liability for attempting to do so.
Neither is licensee status a completely satisfactory category into which to categorize fire fighters. A licensee enters the premises not by invitation, but by permission of the owner or occupant. The licensee's presence is permitted by the possessor of the land, but is not related to the "purpose or
These inherent limitations in accurately fitting fire fighters into the traditional landowner liability context have caused courts to look beyond the concept of the entrant's status as a rationale for the fireman's rule.
The seminal case of Krauth v Geller, 31 N.J. 270; 157 A.2d 129 (1960), signaled the change of rationale from premises liability to assumption of risk and public policy. In Krauth, the plaintiff fireman was injured while fighting a fire in a house under construction. The builder had not yet constructed a railing for an interior balcony and stairwell. While on the balcony, the plaintiff mistook layers of smoke for the stairs and fell. Apparently, the
California also premises its fireman's rule in part on the assumption of risk doctrine.
Accord Lipson v Superior Court, 31 Cal.3d 362, 371; 182 Cal.Rptr. 629; 644 P.2d 822 (1982) ("A fireman assumes only those hazards which are known or can reasonably be anticipated at the site of the fire"). See also Steelman v Lind, 97 Nev. 425, 427-428; 634 P.2d 666 (1981) (public safety officers assume normal risks inherent in their employment).
Plaintiff in Kreski argues that assumption of risk has been abolished in Michigan and, therefore, the doctrine cannot form the basis for adopting the fireman's rule. In that regard, plaintiff is partially correct.
Historically, assumption of risk was incorrectly viewed as a unitary concept, but in fact is comprised of two related components. This Court, in Felgner v Anderson, 375 Mich. 23; 133 N.W.2d 136 (1965), discussed those components which consist of primary and secondary assumption of risk. Secondary assumption of risk had been employed as an affirmative defense analogous to contributory negligence. It involved a situation in which the plaintiff voluntarily encountered a known risk without manifesting an assent to relieve the defendant of any duty of care owed the plaintiff. Felgner
Primary assumption of risk is not technically an affirmative defense, as it involves a situation where the defendant does not owe a duty of care to the plaintiff. Felgner restricted primary assumption of risk to "cases between employee and employer for injuries incurred in the course of employment and where the statutory bar of the workmen's compensation act ... is not applicable and in cases where it is claimed there has been an express contractual assumption of risk...." Id. In other words, primary assumption of risk involves a circumstance where the plaintiff agrees in advance to relieve the defendant of a duty of care owed the plaintiff. Under Felgner, therefore, primary assumption of risk is still viable in Michigan.
The Kansas Supreme Court declined to premise its adoption of a fireman's rule on an assumption of risk theory, for the same argument that plaintiff advances. Calvert v Garvey Elevators, Inc, 236 Kan. 570, 574-575; 694 P.2d 433 (1985). "We would be required to adopt the legal theory that an individual taxpayer, as occupant of the premises, is the employer of the fire fighter employee. We do not believe that assumption of the risk can be carried to that extent."
On the other hand, several states base their fireman's rule on assumption of risk, despite having abolished the doctrine in the secondary sense.
While we find that primary assumption of a risk is still viable in Michigan, we decline to adopt the fireman's rule on the basis of the doctrine. However, we do not do so for the reason argued by plaintiff — the lack of direct employment relationship between taxpayers and fire fighters. The public policy rationales advanced in favor of the rule are more than sufficient to support it. Thus, it is unnecessary to determine whether a direct employment relationship between plaintiff and defendant is required to support a defense of primary assumption of risk.
The policy arguments for adopting a fireman's rule stem from the nature of the service provided by fire fighters and police officers, as well as the relationship between these safety officers and the public they are employed to protect.
The public hires, trains, and compensates fire fighters and police officers to deal with dangerous, but inevitable situations. Usually, especially with fires, negligence causes the occasion for the safety officer's presence.
In the same vein, the Iowa Supreme Court stated:
The Court of Appeals in Kreski rejected this policy argument, agreeing with plaintiff and the dissent in Walters that "this argument proves too much." Kreski, supra, 385-386. See Walters, supra, 20 Cal.3d 207 (Tobriner, J., dissenting). Other occupations involve risk, but no court has adopted a rule of nonliability for injuries arising out of the inherent dangers of those occupations. The Court of Appeals stated, therefore, that "adoption of the fireman's rule would make firefighters second-class citizens with fewer rights than those enjoyed by other employees." Kreski, supra, 387.
What this argument fails to take into account is the fundamental difference between the function of safety officers and that of other occupations peripherally involving danger. The very nature of police work and fire fighting is to confront danger. The purpose of these professions is to protect the public. It is this relationship between police officers, fire fighters, and society which distinguishes safety officers from other employees. Thus, safety
Several other policy arguments are cited by courts to support the fireman's rule.
Fire fighters and police officers often arrive at unpredictable times and may enter portions of the premises not open to the public. Prosser & Keeton, supra, § 61, p 431. Generally, the occasion for their presence is an emergency. Id. While it is true that situations arise in which the need for fire fighters or police officers are predictable, their appearance at a specific time or place is not. Pearson v Canada Contracting Co, Inc, 232 Va. 177, ___; 349 S.E.2d 106, 111 (1986). Thus, it is an unreasonable burden on landowners to require them to prepare their premises for the arrival of police officers or fire fighters.
Accord 5 Harper, James & Gray, Torts (2d ed),
Additionally, workers' compensation benefits are available to police officers and fire fighters injured in the course of their employment. This fairly spreads the cost of these injuries to the public as a whole rather than individual property owners. Giorgi v Pacific Gas & Electric Co, 266 Cal.App.2d 355; 72 Cal.Rptr. 119 (1968); Pottebaum, supra, 645-646; Calvert, supra, 574-575; Phillips v Hallmark Cards, 722 S.W.2d 86 (Mo, 1986); Pearson, supra, 111. See also Krauth, supra (risk placed on public body employing fire fighter).
It has been argued that liability insurance is a better way to spread the risk of loss.
Putting aside the question whether the availability of liability insurance is a proper basis for a rule of law, we reject this argument, as have all the courts discussing it. See Giorgi, supra, 360 ("the reach of the tax collector is both broader and more persuasive than that of the premium taker"); Pottebaum, supra, 645-646 ("although we are aware of the widespread existence of liability insurance, we believe these risks are more effectively and fairly spread by passing them onto the public through the government entities that employ firefighters and police officers"); Berko v Freda, 93 N.J. 81, 83-84; 459 A.2d 663 (1983) (rejecting the argument that prevalence of insurance required reexamination of Krauth, supra).
The costs and risks of injuries are most fairly borne by the intended beneficiaries of the services of safety officers. Further, while many fires may arise on business premises, the obverse is also true. Many fires arise on nonbusiness premises, with the owner or occupant having no avenue to pass along the cost of liability insurance as a cost of doing business.
As a result of examining the policy rationales supporting the fireman's rule, we are persuaded that considerations of fairness and public policy compel us to adopt the rule for Michigan. However, we must clarify that we are not attempting to delineate the precise parameters of the rule in this opinion. Several exceptions involving factual situations not presented here have developed in the states employing a fireman's rule.
Next, the building owners or occupiers were not on the premises at the time of the incidents, or even alleged to have known of plaintiffs' presence. Thus, there are no allegations that the owners misled plaintiffs regarding the condition of the buildings or the nature of the activities carried on inside. Similarly, there is no allegation that defendants had a present ability to warn of danger on the premises. Neither are there allegations that the fire in Kreski was intentionally set or was the product of illegal activities.
All of these scenarios have been faced by courts in fine tuning their fireman's rules to best balance the underlying rationales with the interest of allowing recovery when those rationales are not implicated.
In sum, fire fighters and police officers are different than other employees whose occupations may peripherally involve hazards. Safety officers are employed, specially trained, and paid to confront dangerous situations for the protection of society. They enter their professions with the certain
KRESKI v MODERN WHOLESALE
Plaintiff maintains that adopting a fireman's rule does not necessarily bar her claim against either defendant. The counts against Modern and Weinstein allege negligence in the repair and maintenance of the premises, which resulted in the roof collapsing. Plaintiff argues that she has not alleged negligence in causing the fire, but, rather, in the maintenance of the premises. Plaintiff also argues that, since the alleged negligence is unrelated to the cause of the fire, it was unforeseeable and, thus, not inherent in fire fighting.
We disagree. The scope of the rule adopted today includes negligence in causing the incident requiring a safety officer's presence and those risks inherent in fulfilling the police or fire fighting duties. Of course, this does not include all risks encountered by the safety officer. The fireman's rule is not a license to act with impunity, without regard for the safety officer's well-being. The fireman's
We agree with plaintiff that the acts alleged, for the most part, do not pertain to the cause of the fire. However, several courts addressing cases in which the plaintiff alleged negligence relating to the condition of the premises have held that the risk was inherent in the safety professions, and, thus, within the fireman's rule.
For instance, in Flowers, supra, the plaintiff fell down an open elevator shaft while attempting to evacuate tenants from a smoke-filled lobby on the twelfth floor of an apartment building. The plaintiff brought suit alleging, inter alia, negligence in the installation of the elevator and failure to warn of the open elevator shaft.
The court held that the fireman's rule precluded the plaintiff's action stating:
See Williams v Levitt, 213 N.J.Super. 604; 517 A.2d 1242 (1986) (police officer investigating activation of burglar alarm was injured when he tripped in a hole in defendant's yard; policy reasons of fireman's rule preclude suit); cf. Buren v Midwest Industries, Inc, 380 S.W.2d 96, 98-99 (Ky, 1964) (condition of premises causing fire to spread rapidly not actionable).
Several courts have included the potential for structural collapse as an inherent risk of fire fighting. See Lipson, supra, 371 ("[s]moke, flames, and the collapse of a burning wall, ceiling, or floor are typical risks normally associated with a fireman's occupation"); Romedy v Johnston, 193 So.2d 487, 491 (Fla App, 1967) (["fire fighters] face the risk of injury from exposure to fire, smoke, and collapsing structures"); Aravanis v Eisenberg, 237 Md. 242, 252, n 2; 206 A.2d 148 (1965) ("`There are certain risks inherent in fire fighting: smoke, flame, and the like. The collapse of a floor, ceiling or wall of a burning building, without more, is a hazard a fireman must ordinarily anticipate.'") (quoting Jackson v Velveray Corp, 82 N.J.Super. 469, 475; 198 A.2d 115 ).
We agree that the potential for structural collapse is an inherent risk of fire fighting, and one which fire fighters are trained to anticipate. Like the open elevator shaft in Flowers, it is common knowledge that burning buildings collapse, and the risk of that occurrence cannot be termed hidden or unanticipated. Thus, plaintiff has no cause of action for the collapse of the roof.
Plaintiff also argues that a fireman's rule would not preclude suit against Edison, since it was not
It is true that a few states have limited application of their fireman's rule to the context of landowners and occupiers. See Grzelinski, supra; Hawkins v Sunmark Industries, Inc, 727 S.W.2d 397, 400 (Ky, 1986). The Hawkins court explained:
Other courts, however, have declined to limit the fireman's rule to landowners or occupiers. See Pottebaum, supra (fireman's rule not based on premises liability theory because it would be unfairly limited to landowners or occupants but not to others whose actions injure safety officers elsewhere); Flowers, supra (rule adopted for reasons of public policy because premises liability theory would not encompass injuries caused by nonowners or occupants).
We agree that the fireman's rule should not be limited to a landowner/occupier context.
REETZ v TIPIT, INC
The parties in Reetz argued, and the Court of Appeals decided the case, on the basis of premises liability. As the fireman's rule adopted today is based on public policy, the analysis to be employed is not determined by status, but by whether the underlying rationales of the fireman's rule require preclusion of plaintiff's claim.
The negligence complained of was an open trap door, located directly behind two swinging doors, through which plaintiff fell. Clearly this was not the reason for plaintiff's presence on the premises, as she was investigating a burglary. There is no allegation that negligence created the need for plaintiff's services. Thus, this case is slightly different than most fireman's rule cases. Generally, the occasion requiring assistance from a safety officer is caused by negligence.
Plaintiff here could make essentially the same argument that the plaintiff in Kreski made: that the fireman's rule does not preclude her suit since the negligence complained of was not the reason for her presence on the premises. However, again, we reject this argument because plaintiff's injury falls within those risks inherent to police work.
This case is similar to Williams, supra, in which a police officer was investigating a suspected burglary call on the defendant's property. The plaintiff stepped in a hole in the defendant's yard,
In Pearson, supra, the court held that a fireman injured in a fall through a hole in the floor in the defendant's building could not recover damages. The court was persuaded by two of the policy rationales underlying the rule adopted today. First, that the plaintiff would be able to collect workers' compensation benefits, thereby spreading the cost of the injury to the public. Second, that safety officers enter the premises at unforeseeable times and locations, and that not applying the fireman's rule would require the owner or occupant to fulfill an unreasonable burden of care.
The policy rationales for the fireman's rule adopted today preclude plaintiff's action. As noted in Williams, supra, police officers cannot be certain what dangers surround them when investigating a burglary. They have been trained to expect a variety of contingencies and to deal with those contingencies as they arise. It was plaintiff's duty to investigate the burglary, despite the inherent dangers. In performance of her duty, plaintiff took the premises as she found them, with no representations being made regarding their safety. Thus,
Plaintiff further appealed the denial of her motion to amend her complaint. Since we have determined that plaintiff's claim is precluded by the fireman's rule, amendment would be futile. Therefore, we affirm the denial of plaintiff's motion to amend the complaint.
For the public policy reasons stated above, we adopt for Michigan a fireman's rule. The claims of both plaintiffs fall within the ambit of the rule and are thus precluded.
Therefore, the decision of the Court of Appeals in Kreski is reversed as to all defendants. The decision of the Court of Appeals in Reetz is affirmed. As both actions were precluded by the rule adopted today, it is unnecessary to determine the degree of care owed safety officers on the premises in the line of duty.
LEVIN, BRICKLEY, ARCHER, and GRIFFIN, JJ., concurred with RILEY, C.J.
ARCHER, J. (concurring).
I signed the majority opinion and concur because it does not foreclose fire fighters and police officers from bringing a cause of action which includes but is not limited to
BOYLE, J. (concurring in part and dissenting in part).
I agree with the rationale and result in Kreski v Modern Wholesale Electric. I do not agree, however, that a concealed trap door is, as a matter of law, a "normal, inherent, and foreseeable risk of the chosen profession." (Ante, p 372.) Nor can I agree, as a matter of law, that in these circumstances, the defendant owed no duty to the plaintiff. The questions of defendant's knowledge of the danger and opportunity to warn, Clark v Corby, 75 Wis.2d 292; 249 N.W.2d 567 (1977), are essentially factual matters. Because I am not convinced on this record that amendment of the complaint would be futile, Ben P Fyke & Sons v Gunter Co, 390 Mich. 649, 213 N.W.2d 134 (1973), I would remand to the trial court for further proceedings.
CAVANAGH, J. (concurring in part and dissenting in part).
I join in the majority opinion for the reasons expressed in Justice ARCHER'S concurrence, but only to the extent that the adoption of the fireman's rule in Michigan applies to owners and occupiers of the premises in question. I dissent
We agree with the above authorities, and hold that the fireman's rule applies equally to police officers as well as firemen.