Summary
upholding summary judgment under Rule for manufacturers of propane gas tank that leaked and exploded
Summary of this case from White v. EdmondOpinion
January 31, 1992
Appeal from the Supreme Court, Erie County, Doyle, J.
Present — Boomer, J.P., Pine, Balio, Lawton and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: This appeal and the companion appeals arise from a tragic incident in the City of Buffalo that resulted in the injury or death of a number of firefighters. The firefighters responded to a call that propane gas was escaping from a tank at a warehouse in the City. Before they entered the building, the propane gas exploded, killing or injuring fifteen of the firefighters. The injured firefighters and the estates of the deceased firefighters commenced actions against the City of Buffalo, the owners and occupants of the warehouse, the manufacturers of the propane tank and its components, and others. The various defendants moved for summary judgment dismissing the complaint based on the Fireman's Rule. "It is a long standing common-law rule that firefighters injured while extinguishing fires generally cannot recover against the property owners or occupants whose negligence in maintaining the premises occasioned the fires" (Santangelo v State of New York, 71 N.Y.2d 393, 396; see also, Kenavan v. City of New York, 70 N.Y.2d 558, 566). The initial rationale, since rejected, for the Fireman's Rule was that firefighters entering upon premises took the property as they found it. Later cases have "cast the general denial of liability in terms of assumption of risk: persons who choose to become firefighters assume the risks of fire-related injuries, including the risk of negligence of property owners and occupants in maintaining their premises" (Santangelo v. State of New York, supra, at 397). "[M]unicipalities employ firefighters precisely because special skills and expertise are required to confront certain hazards — usually of an emergency nature — that expose the public to danger, these hazards often arise from negligence, and as a matter of public policy firefighters trained and compensated to confront such dangers must be precluded from recovering damages for the very situations that create a need for their services" (Santangelo v. State of New York, supra, at 397).
The Fireman's Rule does not bar recovery when the negligence that caused the injury is separate and apart from the negligent acts which occasioned the firefighters' presence (Furch v. General Elec. Co., 142 A.D.2d 8, 12; Dawes v. Ballard, 133 A.D.2d 662, 664). Thus, in Furch v. General Elec. Co. (supra), the defendant was not protected by the Fireman's Rule where it installed materials which, during the fire, released toxic substances that injured responding firemen. The Fireman's Rule was inapplicable to that case because the installation of the toxic substance was "sufficiently separate and apart from the negligence which occasioned the emergency for which plaintiffs were summoned" (Furch v. General Elec. Co., supra, at 12). "To be contrasted is the situation where the emergency itself patently involves the risk of exposure to toxic substances" (Furch v. General Elec. Co., supra, at 12).
Applying those rules to the facts in this case, we conclude that the Fireman's Rule precludes recovery by the plaintiffs against any of the defendants, except those liable under General Municipal Law § 205-a. The negligence of the defendants in storing the propane tank in the warehouse and in causing it to leak was not separate and apart from the negligence which occasioned the emergency for which plaintiffs were summoned. The propane leak was the very reason why the firefighters were summoned. That fact distinguishes this case from cases where the firefighters were summoned to put out a fire and were unaware of a hidden hazard (see, e.g., Furch v. General Elec. Co., supra; Dawes v. Ballard, supra).
The Fireman's Rule affords protection not only to the owners and occupants of the premises where the injuries occurred but "to any person whose negligence creates the occasion for the firefighter's services and thereby exposes him to the hazards normally associated with the performance of firemanic duties" (Furch v. General Elec. Co., supra, at 11-12). It is applicable not only to contractors who perform work on the building (Furch v. General Elec. Co., supra), but also to manufacturers who would otherwise be liable under the principles of products liability. In view of the rationale for the Fireman's Rule, there is no justification for excluding manufacturers from the exemption afforded by the rule (Mahoney v. Carus Chem. Co., 102 N.J. 564, 510 A.2d 4). The particular risk created by the manufacturer is often, as here, one which the firefighter is held to have assumed (see, Brown v. General Elec. Corp., 648 F. Supp. 470; Armstrong v Mailand, 284 N.W.2d 343 [Minn]; Mahoney v. Carus Chem. Co., supra).
The actions by the firefighters and their estates against the City of Buffalo should have been dismissed. Although a municipality may be held liable for injuries suffered by a firefighter caused by the negligence of a fellow firefighter, liability cannot be imposed if the firefighters' conduct "involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions that, in retrospect show poor judgment, but judgment nonetheless" (Kenavan v. City of New York, supra, at 569). We reject plaintiffs' contention that the City was liable for the alleged negligence of the fire dispatcher who reported that a "large" propane tank was leaking when the telephone call to the dispatcher described the tank's size as 100 to 500 gallons. The characterization of the tank as "large", in our opinion, is not negligence, but even if it were, that was no more than an exercise of judgment and not a violation of any "immutable procedures" established by the City (Kenavan v. City of New York, supra, at 569).
In addition to the application of the Fireman's Rule, there is another reason why summary judgment should have been granted to the defendant Fedders Corporation. Fedders entered into a contract with defendant Chimera Radiator Company whereby Chimera was to manufacture radiators for Fedders. The proof on the motion for summary judgment establishes that Chimera was an independent contractor of Fedders, that Fedders exercised no control over the manufacturing process and that, in any event, the manufacturing process was unrelated to the storage of the tank on the premises. The employer of an independent contractor is not liable for injury caused to a third party by an act or omission by the independent contractor or its employees (Wright v. Esplanade Gardens, 150 A.D.2d 197, 198). Mere inspection for quality control does not make Fedders liable for any negligent act of Chimera or its employees. The fact that defendant agreed to pay Chimera $1,000 per month for the storage of the radiators manufactured by Chimera does not establish that Fedders had control of any space at the warehouse. Thus, there is no question of fact concerning Fedders' status as a tenant in control of the premises.
Accordingly, except with respect to defendants George D. Wilson, Jr. (also sued as George D. Wilson, Sr.) individually and doing business as Chimera Radiator Company, and doing business as Chimera Hamburg Radiator Manufacturing Company, and doing business as Hamburg Radiator Sales Service Company, George Wilson Son, Inc., Division Enterprises, Inc., Amherst Radiator Co., and LBG Radiator Company, Inc. (the Wilson defendants), the order appealed from is modified by reversing those parts of the order that denied summary judgment to defendants and by granting their motions for summary judgment. As to the excepted defendants (the Wilson defendants), the order is modified by dismissing all causes of action against them, except the causes of action pursuant to General Municipal Law § 205-a. Factual questions exist whether those defendants violated ordinances, statutes or codes designed for the benefit of firefighters (see, Kenavan v. City of New York, 70 N.Y.2d 558, 568, supra).