Opinion
No. X10-UWY-CV-05-4010156-S
May 21, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#173)
Introduction
This is a negligence action brought by the Plaintiff Kennard Ray Little, a Greenwich firefighter, against the Defendant Bruce Park Avenue, LLC ("Bruce Park"), the owner of the property at 312 Davis Avenue, that is the subject of this action. Little alleges that on December 5, 2003, he responded to a fire at Bruce Park's property which was caused when the operator of a dump truck with a plow attachment, who was performing plowing services at the property, struck a gas pipe and/or gas pressure regulator on the property. Little claims that he was trapped inside the building with no hope of rescue. As a result, Little alleges that he was forced to jump out of a window, falling thirty-three feet to the ground and thereby sustaining multiple serious and permanent injuries. He asserts that his injuries were caused by the negligence of Bruce Park in that it allowed its property to be and/or remain in an unsafe and dangerous condition; it failed to erect any barriers or other safeguards around the gas meter set to protect it from coming in contact with vehicles; it failed to properly and reasonably inspect the premises; it failed to post signs or warnings to persons in the area of the gas pipes; it failed to properly inspect and maintain the gas set in a safe manner; it allowed the gas meter set to be in an area where it was exposed to traffic and potential damage; and it knew or should have known of all the dangers and did nothing to remedy them.
Bruce Park has filed a Motion for Summary Judgment as to Counts Eleven and Twelve of the Sixth Amended Complaint, the negligence claim by the Plaintiff Kennard Little and the loss of consortium claim by his wife, the Plaintiff Grace Little, citing the so-called "Firefighter's Rule." That rule reduces, for premises liability purposes, an emergency worker's status to that of a licensee. Roberts v. Rosenblatt, 146 Conn. 110, 112 (1959). As such, a property owner is only liable for injuries to an emergency worker resulting from the owner's willful and wanton misconduct. Levandoski v. Cone, 267 Conn. 651, 654 (2004).
Little argues that the gas line is located in an area that is open to the public. Because the gas line is located in or next to the driveway, which is frequently used as a parking area for patrons of the businesses locate on the adjacent property, Little argues that the firefighter's rule does not apply in this case. Bruce Park denies that the driveway is open to the public and claims that no real issue of material fact exists as to the private nature of the driveway.
Discussion
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing . . . that the party is . . . entitled to judgment as a matter of law . . ." (Internal quotation marks and citation omitted.) Hopkins v. O'Connor, 282 Conn. 821, 829 (2007).
In Roberts v. Rosenblatt, 146 Conn. 110, 113 (1959), the court held that the status of a firefighter who had entered upon the Defendant's property in response to a fire alarm, and sustained injury while on the premises because of a defect therein, "was akin to that of a licensee and the defendants owed him no greater duty than that due a licensee." "The common-law `firefighter's rule' provides, in general terms, that a firefighter or police officer who enters private property in the exercise of his duties occupies the status of a licensee and, therefore, is owed a duty of care by the property owner that is less than that owed to an ordinary invitee . . . Thus, under the firefighter's rule, the landowner generally owes the firefighter or police officer injured on his property only the duty not to injure him wilfully or wantonly . . ." (Internal quotation marks and citation omitted.) Levandoski v. Cone, 267 Conn. 651, 653-54 (2004).
An exception to the firefighter's rule does exist where the segment of the property giving rise to an injury is located in an area that is "open to the public." "The exception provides that [t]he liability of a possessor of land to a public officer or employee who enters the land in the performance of his public duty, and suffers harm because of a condition of a part of the land held open to the public, is the same as the liability to an invitee." (Internal quotation marks omitted.) Morin v. Bell Court Condominium Association, 223 Conn. 323, 334 (1992). The Court in Morin noted that: "In situations in which the premises have been considered open to the public, there is generally some sort of public function or traditional business purpose being served." (Footnotes omitted.) Id. 335. The Court cited, as examples of public areas, a railroad right-of-way through a public sidewalk that the railroad was statutorily obligated to keep in good repair for the benefit of all members of the public and a department store during business hours. The rationale of the exception is that landowners should not be held to a lesser standard of care as to public officers than they would owe to the general public. Brady v. Consolidated Rail Corporation, 25 Ohio St. 3d 161, 164 (1988).
Little claims that "the fire started in a commercial parking lot that was open to the public, and the plaintiff was therefore entitled to invitee status under the rule in Morin . . ." (Plaintiffs' Brief in Opposition to Defendant Bruce Park Ave Greenwich LLC's Motion for Summary Judgment, p. 3). Bruce Park denies that the driveway was, in fact, open to the public. However the court does not believe that this factual distinction is determinative of Bruce Park's liability to Little. "Although facts may be in dispute, the disputed facts must be material. That is, the facts must satisfy the elements [of the alleged cause of action]." (Internal quotation marks and citation omitted.) Citibank (South Dakota), N.A. v. Manger, 105 Conn.App. 764, 765-66 (2008). This is because the allegations of negligence made by Little against Bruce Park relate to the same deficiencies that are alleged to have caused the fire itself to which Little, in his role as a fireman, responded. As the court noted in Fursten v. Hill, 218 Conn. 610 (1991), the firefighter's rule regarding premises liability applies where the injury results from alleged negligence unrelated to the cause of the safety officer's presence on the property.
In Furstein v. Hill, 218 Conn. 610, 617-8 (1991), the plaintiff police officer was injured when a deck attached to a house collapsed as he was crossing the deck to inspect access to the house in response to a possible burglary. The Court concluded that the firefighter's rule applied as well to police officers as to firefighters. The Court discussed the history and purpose of the rule and noted that: "Several jurisdictions have explained their adoption of the firefighter's rule by recognizing the inherently hazardous nature of the public safety work performed by firefighters and police officers. Some courts have characterized this recognition as a variant of the doctrine of `assumption of the risk' . . . while others have noted that firefighters and police officers voluntarily choose to enter their professions knowing that they will often confront physically perilous situations created by the negligence of the public they serve . . . According to the courts that have relied on this rationale, the public hires, trains, and compensates firefighters and police officers to deal with dangerous, but inevitable situations, many of which are caused by negligence . . . The very nature of police work and fire fighting is to confront danger. The purpose of these professions is to protect the public . . . [T]he public should not be liable for damages for injuries occurring in the performance of the very function police officers and firefighters are intended to fulfill . . . This rationale has been extended to situations, such as the one presented in this case, in which an injury results from alleged negligence that is unrelated to the cause of the safety officer's presence on the property." (Internal quotation marks and citations omitted.)
In Kaminski v. Fairfield, 216 Conn. 29, 38-9 (1990), the defendant police officer sought, by counterclaim against the plaintiffs, to recover for injuries he sustained when he accompanied mental health workers to the home of the plaintiffs pursuant to their request for assistance in controlling the behavior of their adult son. The court held that "the plaintiffs cannot be held liable to the defendant for risks that inhered in his presence, as a police officer acting as a trained escort for a mental health team on a visit to a disturbed patient known to be agitated and to have access to axes . . . [F]undamental concepts of justice prohibit a police officer from complaining of negligence in the creation of the very occasion for his engagement . . . This fundamental concept rests on the assumption that governmental entities employ firefighters and police officers, at least in part, to deal with the hazards that may result from their taxpayers' own future acts of negligence. Exposing the negligent taxpayer to liability for having summoned the police would impose upon him multiple burdens for that protection. Berko v. Freda, 93 N.J. 81, 87, 459 A.2d 663 (1983) (a police officer injured in the pursuit of a stolen car cannot sue the car owner for negligence in leaving the car with keys in the ignition). In accordance with this principle, a police officer has been precluded from suing parents for negligence when he was assaulted by intoxicated guests at a party after having been summoned to quell the disturbance. Walters v. Sloan, 20 Cal.3d 199, 202-05, 571 P.2d 609, 142 Cal.Rptr. 152 (1977). Similarly, a police officer struck by another car while assisting a truck driver to gather fallen cargo was not allowed to sue the truck driver for having negligently secured his freight. Steelman v. Lind, 97 Nev. 425, 427-28, 634 P.2d 666 (1981); see also Flowers v. Rock Creek Terrace Limited Partnership, 308 Md. 432, 447, 520 A.2d 361 (1987); Turner v. Northwest General Hospital, 97 Mich.App. 1, 3-4, 293 N.W.2d 713 (1980) . . ." (Footnotes omitted.)
In Morin v. Bell Court Condominium Association, 223 Conn. 323 (1992), the plaintiff police officer responded to a warning of a fire at the defendant condominium complex. While evacuating the apartments there he fell while descending a common stairway because of a stairway defect. The Court held that the officer's status was that of a licensee on the premises and that the common areas of the condominium complex are not, as a matter of law, open to the public. The Court approved the result reached in Flowers v. Rock Creek Terrace, 308 Md. 432 (1987). There the plaintiff fireman sued the building owners, among others, for damages for injuries he received when he fell twelve stories down an open elevator shaft while responding to a fire at an apartment building. The court found that "the use of a premises liability rationale would not seem to be entirely appropriate for resolving the issues in cases like this." Id., 444. The court conclude that "it is an analysis of the relationship between firemen and the public whom they serve which best explains the fireman's rule." Id. "We agree that the fireman's rule is best explained by public policy . . . 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 attributable to the negligence that requires their assistance. This public policy is based on a relationship between firemen and policemen and the public that calls on these safety officers specifically to confront certain hazards on behalf of the public. A fireman or police officer may not recover if injured by the negligently created risk that was the very reason for his presence on the scene in his occupational capacity. Someone who negligently creates the need for a public safety officer will not be liable to a fireman or policeman for injuries caused by this negligence." (Internal citation omitted.) Id., 447-48. See also, Washington v. Atlantic Richfield Co., 66 Ill.2d 103, 108 (1976), in which the Supreme Court of Illinois held that "[s]ince most fires occur because of negligence, to hold a landowner liable to a fireman would impose a heavy and unreasonable burden upon the owner . . . We therefore hold that while a landowner owes a duty of reasonable care to maintain his property so as to prevent injury occurring to a fireman from a cause independent of the fire he is not liable for negligence in causing the fire itself." (Internal citations omitted.)
In Lodge v. Arett Sales Corporation, 246 Conn. 563 (1998), the issue was whether the defendants, who negligently caused the transmission of a false fire alarm, were liable to firefighters injured during an accident precipitated by the negligent maintenance and failure of the brakes on the responding fire engine. The Court held that they were not so liable and noted that: "In Furstein, we analyzed the firefighter rule, which gives a firefighter the status of a licensee in a personal injury action against a landowner for harm sustained during the course of duty . . . The firefighter rule is not directly applicable in this case because this is not an issue of landowner liability, and we decline to extend the rule to the present situation. Its rationale is, however, instructive for understanding the policy issues relevant to compensation of firefighters injured in the line of duty. We concluded that limited liability was appropriate in Furstein v. Hill, [ 218 Conn. 610], 615, and Roberts v. Rosenblatt, 146 Conn. 110, 112-13, 148 A.2d 142 (1959), because (1) the nature of a firefighter's work is inherently hazardous and the choice of that occupation is akin to assumption of the risk, and (2) firefighters are adequately compensated for the job they perform and are able to recover workers' compensation for injuries sustained in the course of their employment. Furstein v. Hill, supra, 617-20. Both of these public policy considerations are equally relevant to the question of whether, as a matter of policy, the defendants should be liable for the unforeseen consequences of their negligent transmission of a false alarm."
Thus the policy considerations which underlie the firefighter's rule, as recognized by our Supreme Court in Kaminski, contrary to Little's claim, apply to allegations of negligent conduct by the landowning public whose property a firefighter is bound to protect. Those considerations prohibit a firefighter from complaining of negligence in the creation of the very occasion for his engagement whether on public or private property.
A similar result was reached in Jainchill v. Friends of Keney Park, Superior Court, Judicial District of Hartford at Hartford, Docket No. CV 00 0800130S (Peck, J., Feb. 28, 2001) [29 Conn. L. Rptr. 139]. There the plaintiff police officer sought damages for injuries he sustained while working at an event in Keney Park sponsored by the defendant. The plaintiff claimed that his injuries were the result of the negligence of the defendant in leaving the keys in a rented golf cart unattended and he tried to stop a young child from driving off on it. There the court granted the defendant's motion to strike the complaint. Although the court agreed that the firefighter rule did not apply because the property where the plaintiff was working was not owned by the defendant, the court held that: "The policy considerations which gave rise to the adoption of the firefighter rule in Connecticut and which were applied in Kaminski and Lodge, where the firefighter rule was not invoked, however, apply with equal force to the facts alleged in the complaint before the court. The plaintiff was `working on the property as a Hartford police officer at an event in Keney Park sponsored by the Defendants.' Complaint, ¶ 1. He was injured when `a minor child took an unattended golf cart in which the key had been left in the ignition and which had been rented by the Defendant which caused injury to the Plaintiff when he tried to stop it.' (Emphasis added.) Complaint, ¶ 2. The public nature of the property notwithstanding, the primary consideration is whether the alleged acts of negligence were either created by or intimately connected with the `very occasion for which' the plaintiff was on the property. While the defendant did not own the property, a necessary implication from the claimed negligent act is that it was responsible for the plaintiff's presence and the plaintiff was injured while acting in the performance of his duty as a police officer."
Although the Court in Levandoski v. Cone, 267 Conn. 651 (2004), reiterated that the firefighter's rule is essentially a rule of premises liability and did not extend it to claims of ordinary negligence against non-landowners, that case does not require a different result here. First, the claim here is made against the landowner and is framed as a premises liability claim while in Levandoski the claim was made against a suspected criminal fleeing from the police for injuries sustained on property not owned by him. Second, the rationale for the rule the Court cited there is clearly applicable here. There the Court stated that "our principal rationale was consistent with the limitation of the rule to premises liability cases, namely, the risk of double taxation. Thus, we stated: Exposing the negligent taxpayer to liability for having summoned the police would impose upon him multiple burdens for that protection . . ." Id., 664.
Conclusion
The injuries claimed by Little here were not caused by some alleged defect on the premises in a public area unrelated to the negligence of Bruce Park which is alleged to have caused the fire to which Little responded. In such a situation his claim is barred by the same policy considerations that underlie the firefighter's rule.
Therefore, the court agrees with Bruce Park's statement that "the firefighter's rule prohibits Kennard Ray Little `from complaining of negligence in the creation of the very occasion for his engagement.'" (Defendant Bruce Park Avenue Greenwich, LLC's Reply to Plaintiffs' Response to its Reply to their Objection to Motion for Summary Judgment, p. 8). The Motion for Summary Judgment is granted.