[This opinion has been published in Ohio Official Reports at
74 Ohio St.3d 362.]
HACK ET AL., APPELLANTS, v. GILLESPIE, APPELLEE, ET AL.
[Cite as Hack v. Gillespie, 1996-Ohio-167.]
Torts—Negligence—Real property—Owner or occupier of private property can
be liable to a fire fighter or police officer who enters premises and is
injured in the performance of his or her official job duties, when.
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An owner or occupier of private property can be liable to a fire fighter or police
officer who enters premises and is injured in the performance of his or her
official job duties if (1) the injury was caused by the owner’s or occupier’s
willful or wanton misconduct or affirmative act of negligence; (2) the injury
was a result of a hidden trap on the premises; (3) the injury was caused by
the owner’s or occupier’s violation of a duty imposed by statute or
ordinance enacted for the benefit of fire fighters or police officers; or (4) the
owner or occupier was aware of the fire fighter’s or police officer’s presence
on the premises, but failed to warn them of any known, hidden danger
thereon. (Scheurer v. Trustees of Open Bible Church [1963], 175 Ohio St.
163,
23 O.O.2d 453,
192 N.E.2d 38, paragraph two of the syllabus,
followed.)
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(No. 94-1780—Submitted November 8, 1995—Decided January 24, 1996.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 65673.
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{¶ 1} Appellant Stephen Hack was a fire fighter for the city of Lakewood,
Ohio. On March 1, 1989, Hack responded to a fire at 1589 Larchmont Avenue. He
gained access to the residence by entering a porch located on the second floor.
While on the porch, Hack leaned over a decorative railing to retrieve some
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equipment. The railing, however, gave way, causing Hack to fall to the ground.
As a result, Hack suffered a broken hip and elbow.
{¶ 2} At the time of the fire, it appears that there were no occupants in the
house. On December 2, 1988, the owner of the premises, Kevin Gillespie, appellee,
had entered into an agreement with Patrick T. Cullen and Thom Rodgers III,
whereby Cullen and Rodgers were given an option to purchase the property. It
appears that Cullen and Rodgers entered into the agreement for the purpose of
renovating the residence and, pursuant to the agreement, they were to have
exclusive possession and control of the premises for the term of the option.
However, Gillespie remained the owner of the premises. He retained a key to the
house and, additionally, furniture and other items apparently owned by Gillespie
were kept on the premises.
{¶ 3} Following the accident, Jack L. Henderson, Fire Marshal for the
Lakewood Fire Department, investigated the cause of Hack’s fall. Henderson
determined that the railing on the porch had not been properly secured to the roof
of the house. Henderson informed the city building inspector about the railing and,
according to Henderson, the inspector cited Gillespie for violating the Lakewood
Building Code.
{¶ 4} On October 13, 1992, Hack and his wife, Melanie Hack, also an
appellant herein, filed suit against Gillespie, Cullen, and Rodgers. In the complaint,
which included Melanie’s claim for loss of services and consortium, appellants
sought damages against the defendants for constructing and/or maintaining the
railing in a defective condition, for failing to warn Hack of the loose railing, and
for violating the building code.
{¶ 5} Thereafter, Gillespie filed a motion for summary judgment. In his
affidavit in support of his motion, Gillespie testified that he had not been aware of
the condition of the railing, that he had not installed it, and that from winter 1978
until Cullen and Rodgers retained possession and control of the premises, the doors
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leading from inside the house to the porch from which Hack fell had been nailed
shut and plastic sheeting had been secured over the inside of the doorways.
{¶ 6} Cullen and Rodgers also moved for summary judgment. In their
motion, Cullen and Rodgers claimed that they were not at the residence at the time
of the fire, that they were not aware of the alleged defective condition of the
decorative railing, and that the porch where Hack fell had been used infrequently
or not at all.
{¶ 7} On May 19, 1993, the trial court granted the defendants’ motions for
summary judgment. Specifically, the trial court stated that its decision was based
on the reasoning and holdings in Herdman v. Weiss (1988), 55 Ohio App.3d 150,
563 N.E.2d 40, and Scheurer v. Trustees of Open Bible Church (1963),
175 Ohio
St. 163,
23 O.O.2d 453,
192 N.E.2d 38.
{¶ 8} On appeal, the Court of Appeals for Cuyahoga County affirmed the
judgment of the trial court. The court of appeals, also relying on Scheurer and
Herdman, supra, held (1) that the porch railing was not a hidden trap, (2) that
Gillespie, Cullen, and Rodgers were not aware of Hack’s presence on the premises
and did not have the opportunity to warn him, (3) that there was no evidence of any
willful or wanton misconduct or affirmative act of negligence on the part of
Gillespie, Cullen or Rodgers, and (4) that Lakewood Building Code 1305.29(e),
providing that porches be constructed and maintained in a safe condition, was not
“intended to include firefighters in the class of protected individuals when it
prescribed the safe installation and ongoing maintenance of residential
appurtenances.”
{¶ 9} The cause is now before this court pursuant to the allowance of a
discretionary appeal.1
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1. Gillespie is the only appearing appellee in this case.
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Donald E. Caravona & Associates and Mark J. Obral, for appellants.
Rhoa, Follen & Rawlin Co., L.P.A., and Ronald V. Rawlin, for appellee.
Scanlon & Henretta Co., L.P.A., Lawrence J. Scanlon and Ann Marie
O’Brien, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.
Joseph W. Diemert, Jr. & Associates Co., L.P.A., Joseph W. Diemert, Jr.
and Bradric T. Bryan, urging reversal for amicus curiae, the Northern Ohio Fire
Fighters Association.
Arter & Hadden and Kristen L. Mayer, urging affirmance for amicus curiae,
Ohio Association of Civil Trial Attorneys.
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DOUGLAS, J.
{¶ 10} The issue presented for our consideration concerns the liability of an
owner of private property to a fire fighter who enters the premises and, while
performing his official duties, suffers harm as a result of the condition of the
premises. Specifically, we are asked to reexamine the rule in Ohio regarding a
landowner’s liability to police officers and fire fighters, set forth in Scheurer, supra,
and generally referred to as Ohio’s “Fireman’s Rule.”
{¶ 11} The term “Fireman’s Rule,” which is used to include fire fighters
and police officers, refers to a common-law doctrine originally formulated in
Gibson v. Leonard (1892), 143 Ill. 182,
32 N.E. 182. See Strauss, Where There’s
Smoke, There’s The Firefighter’s Rule: Containing The Conflagration After One
Hundred Years 1992 Wis.L.Rev. 2031. Gibson classified fire fighters as licensees
entering upon property for their own purposes and with the consent of the property
owner or occupant.2 Id. at 2034. Thus, the landowner or occupant owed no duty
2. Gibson v. Leonard (1892),
143 Ill. 182,
32 N.E. 182, is no longer the law in Illinois. In Dini v.
Naiditch (1960),
20 Ill.2d 406, 416,
170 N.E.2d 881, 885, the Illinois Supreme Court determined
that “the common-law rule labelling firemen as licensees is but an illogical anachronism, originating
in a vastly different social order, and pock-marked by judicial refinements, it should not be
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to the fire fighter unless the fire fighter’s injury was caused by the owner’s or
occupier’s willful or wanton misconduct. Id. at 2031, fn. 2.
{¶ 12} The rule was originally created to apply to fire fighters, but it has
evolved and has been extended to include police officers. Id. at 2032. See, also,
Brady v. Consol. Rail Corp. (1988), 35 Ohio St.3d 161, 163,
519 N.E.2d 387, 388-
389, citing Scheurer, supra. It appears that a vast majority of our sister states have
adopted or have retained some form of the Fireman’s Rule. The rule, however, is
by no means a uniform rule. Rather, those jurisdictions which have adopted or
retained some vestige of the rule have done so by applying various legal theories
and principles, resulting in several different versions. See, generally, Strauss,
supra, 1992 Wis.L.Rev. 2031. See, also, Pottebaum v. Hinds (Iowa 1984),
347
N.W.2d 642, 643; and Calvert v. Garvey Elevators, Inc. (1985),
236 Kan. 570, 572,
694 P.2d 433, 436.
{¶ 13} The rule in Ohio, like many of our sister jurisdictions, contains
exceptions to the “no duty” approach as originally established in Gibson, supra. In
Scheurer, supra, paragraphs one and two of the syllabus, this court held:
“1. A policeman entering upon privately owned premises in the
performance of his official duty without an express or implied invitation enters
under authority of law and is a licensee.
“2. Where a policeman enters upon private premises in the performance of
his official duties under authority of law and is injured, there is no liability, where
the owner of the premises was not guilty of any willful or wanton misconduct or
affirmative act of negligence; there was no hidden trap or violation of a duty
prescribed by statute or ordinance (for the benefit of the policeman) concerning the
perpetuated in the name of ‘stare decisis.’” See, also, Stern, Firemen’s Recovery from Negligent
Landowners (1967), 16 Cleve. Mar.L.Rev. 231, 248.
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condition of the premises; and the owner did not know of the policeman’s presence
on the premises and had no opportunity to warn him of the danger.”
{¶ 14} In the case at bar, appellants ask this court to reexamine and,
specifically, overrule Scheurer and hold that a landowner owes a duty of reasonable
care, in all instances, to fire fighters who enter upon the private premises in the
exercise of their official duties. In this regard, appellants suggest that fire fighters
who enter upon private premises should be classified as invitees and, accordingly,
may recover for personal injuries suffered as a result of the possessor’s ordinary
acts of negligence. Alternatively, appellants contend that Scheurer should be
limited so that a fire fighter can recover against a negligent landowner where, as
here, the dangerous condition that caused the injury was in no way associated with
the emergency to which the fire fighter responded.
{¶ 15} The contentions posed by appellants, however, miss the fundamental
purpose upon which the holding in Scheurer is based. We concede that this court
has, previously, determined that the duty of care owed by a landowner to a fire
fighter (or police officer) stems from common-law entrant classifications, i.e.,
licensees or invitees.3 However, Ohio’s Fireman’s Rule is more properly grounded
on policy considerations, not artificially imputed common-law entrant
classifications. Indeed, persons such as fire fighters or police officers who enter
land pursuant to a legal privilege or in the performance of their public duty do not
fit neatly, if ever, into common-law entrant classifications.4 See, e.g., Note, Equal
3. In Brady v. Consol. Rail Corp. (1988), 35 Ohio St.3d 161,
519 N.E.2d 387, we held that the
Fireman’s Rule does not encompass injuries to police officers and fire fighters in areas that are held
open to the general public. Police officers and fire fighters who are injured in areas held open to the
general public are, according to Brady, classified as invitees and not licensees.
Id., paragraph one
of the syllabus. The accident in the case at bar did not occur in an area that was “held open to the
public.” Thus, Brady is not applicable to the situation here. Further, although we perpetuated
common-law entrant classifications in Brady, we decline, at this juncture, to comment on the
propriety of classifying the police officer in that case as an invitee.
4. For a scholarly discussion contrasting the various common-law entrant classifications, see
Ferrell, Emerging Trends in Premises Liability Law: Ohio’s Latest Modification Continues to Chip
Away at Bedrock Principles (1995), 21 Ohio N.U.L.Rev. 1121.
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Protection and the Fireman’s Rule in Ohio (1987-1988), 38 Case W.Res.L.Rev.
123, 124 (“Because firemen and policemen acquire the right to enter property by
virtue of authority granted by the state, they ought to fall between the classifications
of licensee and invitee.”); Strauss, supra, 1992 Wis.L.Rev. at 2034-2035; Pearson
v. Canada Contracting Co., Inc. (1986), 232 Va. 177, 183,
349 S.E.2d 106, 110
(“Policemen and firemen, however, do not fit into any of these categories; they
enter premises as of right, under a privilege based on a public purpose. They clearly
are not trespassers. Nor can they be classified as licensees or invitees, who enter
with consent or invitation of the occupant, as consent and invitation are irrelevant
to a policeman’s or fireman’s privileged entry.”); and Buren v. Midwest Industries,
Inc. (Ky. 1964),
380 S.W.2d 96, 98.
{¶ 16} In Scheurer, supra, a police officer responded to investigate that
“kids” were attempting to break into a church. After arriving at the church, the
officer proceeded, on foot, down the church’s driveway toward the church’s side
entrance. While proceeding down the driveway in absolute darkness, the officer
fell into a large unguarded excavation site, sustaining serious injuries. The side
entrance light of the church was not working and there was nothing in the area to
alert the officer to the excavation. In determining that the injured police officer
could not recover against the church, we concluded that:
“Policemen and firemen come on the premises at any hour of the day or
night and usually because of an emergency, and they go to parts of the premises
where people ordinarily would not go. Their presence can not reasonably be
anticipated by the owner, since there is no regularity as to their appearance and in
most instances their appearance is highly improbable.
“Reasoning and experience support the public policy that the duty of an
owner of private premises toward policemen and firemen who come upon his
premises by authority of law in the performance of their official duties and suffer
injury should be only that duty owed to a licensee, and that the owner should only
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be liable where such injury is inflicted by willful or wanton misconduct, or an active
act of negligence, or by a violation of a duty created by statute or ordinance (for the
benefit of policemen or firemen), or where a hidden trap caused the injury or where
the owner had knowledge of the presence of the policeman or fireman on the
premises and the opportunity to warn him of the danger and failed to do so.”
(Emphasis added.) Id., 175 Ohio St. at 171-172, 23 O.O.2d at 458, 192 N.E.2d at
43.
{¶ 17} As can be gleaned, this court’s holding in Scheurer is based on
certain legal theories and various public policy concerns. First, fire fighters and
police officers can enter the premises of a private property owner or occupant under
authority of law. Hence, fire fighters and police officers can be distinguished from
ordinary invitees. Id., 175 Ohio St. at 168-169, 23 O.O.2d at 456, 192 N.E.2d at
41-42. Second, because a landowner or occupier can rarely anticipate the presence
of safety officers on the premises, the burdens placed on possessors of property
would be too great if fire fighters and police officers were classified, in all
instances, as invitees to whom a duty of reasonable care was owed. Id., 175 Ohio
St. at 170, 23 O.O.2d at 457-458, 192 N.E.2d at 43. Third, the rule has been deemed
to be justified based on a cost-spreading rationale through Ohio’s workers’
compensation laws. In this regard, this court has recognized that all citizens share
the benefits provided by fire fighters and police officers and, therefore, citizens
should also share the burden if a fire fighter or police officer is injured on the job.
Id., 175 Ohio St. at 170-171, 23 O.O.2d at 457, 192 N.E.2d at 43.
{¶ 18} We believe that many of the reasons supporting the rule in Scheurer
are well founded and are still sound and valid in our society today. Fire fighters
and police officers assume risks by the very nature of their chosen profession. The
risks encountered are not always directly connected with arresting criminals or
fighting fires. Members of our safety forces are trained to expect the unexpected.
Such is the nature of their business.
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{¶ 19} The risks they encounter are of various types. A fire fighter, fighting
a fire, might be attacked by the family dog. He or she might slip on an object in
the middle of a yard or on a living room floor. An unguarded excavation may lie
on the other side of a closed doorway, or the fire fighter might be required to climb
upon a roof not realizing that it has been weakened by a fire in the attic.
Fortunately, Ohio has statutory compensation schemes which can temper the
admittedly harsh reality if one of our public servants is injured in the line of duty.
{¶ 20} Further, appellants argue that fire fighters and police officers are
treated unfairly in Ohio because they are not entitled to the same protection as other
individuals/employees who enter a landowner’s or occupier’s premises.5 However,
unlike water, electric and gas meter readers, postal workers and others, fire fighters
can enter a homeowner’s or occupier’s premises at any time, day or night. They
respond to emergencies, and emergencies are virtually impossible to predict. They
enter locations where entry could not be reasonably anticipated, and fire fighters
often enter premises when the owner or occupier is not present. We believe that
under these circumstances abrogation of Ohio’s Fireman’s Rule, as suggested by
appellants, would impose too great a burden on Ohio landowners and occupiers and
their insurers.
{¶ 21} Moreover, Scheurer does not stand for the proposition that a
possessor of land owes no duty to a fire fighter or police officer. Rather, this court
in Scheurer has cogently set forth several exceptions to the “no duty” rule.
{¶ 22} We are aware that a few jurisdictions have abolished or modified
their original rule. See, e.g., Mounsey v. Ellard (1973), 363 Mass. 693,
297 N.E.2d
43; Dini v. Naiditch (1960),
20 Ill.2d 406,
170 N.E.2d 881; and Christensen v.
Murphy (1984),
296 Ore. 610,
678 P.2d 1210. We are also cognizant that the
5. Appellants and amicus Ohio Academy of Trial Lawyers also raise a number of constitutional
challenges to Ohio’s Fireman’s Rule. However, these issues were not raised in the trial court and,
accordingly, have been waived. In any event, appellants’ contentions lack merit.
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Fireman’s Rule has been the subject of considerable commentary. See, e.g.,
Annotation, Liability of Owner or Occupant of Premises to Fireman Coming
Thereon in Discharge of His Duty (1982), 11 A.L.R.4d 597, 601-602; Prosser &
Keeton, Law of Torts (5 Ed. 1984) 430-432, Section 61; Strauss, supra, 1992
Wis.L.Rev. 2031; Note, supra, 38 Case W.Res.L.Rev. 123; Stern, Firemen’s
Recovery from Negligent Landowners (1967), 16 Cleve. Mar.L.Rev. 231; Riley,
The Fireman’s Rule: Defining its Scope Using the Cost-Spreading Rationale
(1983), 71 Cal.L.Rev. 218; and Note, Assumption of the Risk and the Fireman’s
Rule (1981), 7 Wm. MitchellL.Rev. 749. However, we believe that the principles
set forth in Scheurer, supra, strike an appropriate balance between the interests of
a possessor of land and the right of a fire fighter or police officer to avoid exposure
to unlimited or unreasonable risks of injury.
{¶ 23} Accordingly, we hold that an owner or occupier of private property
can be liable to a fire fighter or police officer who enters premises and is injured in
the performance of his or her official job duties if (1) the injury was caused by the
owner’s or occupier’s willful or wanton misconduct or affirmative act of
negligence; (2) the injury was the result of a hidden trap on the premises; (3) the
injury was caused by the owner’s or occupier’s violation of a duty imposed by
statute or ordinance enacted for the benefit of fire fighters or police officers; or (4)
the owner or occupier was aware of the fire fighter’s or police officer’s presence on
the premises, but failed to warn them of any known, hidden danger thereon.
{¶ 24} Applying these principles, we find that summary judgment was
properly granted in favor of Gillespie. The court of appeals held, and we agree,
that the record does not contain any evidence of willful or wanton misconduct or
affirmative act of negligence on the part of Gillespie. Moreover, there is no
evidence in the record supporting appellants’ allegation that the unsecured railing
was a hidden trap. Further, even assuming that Gillespie had actual knowledge of
the condition of the railing, Gillespie apparently was not at the residence at the time
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of the fire and was not aware of Hack’s presence on the premises and, thus, did not
breach a duty to warn Hack of the loose railing.
{¶ 25} In addition, we also agree with the court of appeals that appellants
have failed to show that Lakewood Building Code 1305.29(e) was intended to
include fire fighters “in the class of protected individuals when it prescribed the
safe installation and ongoing maintenance of residential appurtenances.” Section
1305.29(e) provides that:
“No owner, operator or agent shall occupy, maintain or lease or offer for
rental or lease any dwelling or dwelling unit or any part thereof which does not
comply with the following minimum requirements:
“…
“(e) Every inside and outside stair and every porch and every appurtenance
thereto shall be so constructed as to be safe to use and capable of supporting the
load that normal use may cause to be placed thereon and shall be maintained in
sound condition and good repair.”
{¶ 26} Clearly, the ordinance at issue was designed for the protection of the
general public and was not enacted specifically for the benefit of fire fighters or
police officers. Section 1305.29(e) is only incidentally beneficial to fire fighters or
police officers. See, generally, Held v. Rocky River (1986), 34 Ohio App.3d 35,
37,
516 N.E.2d 1272, 1275.
{¶ 27} Based on the foregoing, we hold that summary judgment was
properly granted in favor of Gillespie. We affirm the judgment of the court of
appeals.
Judgment affirmed.
MOYER, C.J., WRIGHT, RESNICK, PFEIFER and COOK, JJ., concur.
F.E. SWEENEY, not participating.
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