Torchik v. Boyce , 121 Ohio St. 3d 440 ( 2009 )

[Cite as Torchik v. Boyce, 121 Ohio St.3d 440, 2009-Ohio-1248.]
TORCHIK, APPELLANT, v. BOYCE; HESKETT, APPELLEE.
[Cite as Torchik v. Boyce, 121 Ohio St.3d 440, 2009-Ohio-1248.]
Torts — Premises liability — Fireman’s rule inapplicable to protect independent
contractor.
(No. 2008-0534 ─ Submitted December 16, 2008 ─ Decided March 25, 2009.)
APPEAL from the Court of Appeals for Ross County,
No. 06CA2921, 2008-Ohio-399.
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SYLLABUS
An independent contractor whose negligence is alleged to have caused
injury to police officers or firefighters acting in the scope of their
official duties is not relieved of potential liability under the
fireman’s rule.
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LANZINGER, J.
{¶ 1} In this case, we are asked to determine whether the “fireman’s
rule” should be extended to protect independent contractors from liability toward
firefighters and police officers for injuries they sustain while in the scope of their
employment.
I. Case Background
{¶ 2} Appellant, Ricky Torchik, had been a deputy sheriff for Ross
County for over ten years on February 4, 2003. That afternoon while on road
patrol, he was dispatched to investigate a sounding home burglar alarm at a
residence he had been called to several times before. After finding the front door
locked, he went to the back of the house and climbed the steps of a wooden deck
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to check the rear windows and doors. As Torchik walked down a second set of
deck steps, the steps collapsed, and he sustained injury.
{¶ 3} Torchik filed a complaint against the owner of the property, Jeffrey
Boyce, and the contractor who had built the house, deck, and stairs, appellee,
Daniel Heskett. Boyce and Heskett filed motions for summary judgment, arguing
that Torchik’s claims were barred by the fireman’s rule. In granting Heskett’s
motion, the trial court observed that although it was unable to find any authority
extending the fireman’s rule to a contractor, “it would seem anomalous to apply
the fireman’s rule only to the owner or occupier of property and thus restrict the
owner or occupier’s liability while the contractor’s liability would be governed by
traditional concepts of negligence * * *.” The trial court also granted Boyce’s
motion for summary judgment.
{¶ 4} Torchik appealed the order granting summary judgment to the
independent contractor, Heskett.1 The Fourth District Court of Appeals affirmed
the trial court’s judgment, noting that the homeowner rather than the independent
contractor had complete control over the property, that police officers and
firefighters are trained to expect the unexpected, and that Torchik’s injuries are
better compensated through the workers’ compensation system. Torchik v. Boyce,
4th Dist. No. 06CA2921, 2008-Ohio-399, ¶ 17.
{¶ 5} We accepted Torchik’s discretionary appeal on the issue of
whether the fireman’s rule should be extended to independent contractors to bar
negligence claims for injuries that firefighters and police officers sustain while in
the scope of their employment. 118 Ohio St.3d 1461, 2008-Ohio-2823, 888
N.E.2d 1113.
II. Legal Analysis
1. Torchik also appealed the decision granting summary judgment to the homeowner, Boyce. In
his appellate brief, however, Torchik withdrew that assignment of error. Boyce filed a motion to
dismiss, which the court granted. Torchik v. Boyce, 4th Dist. No. 06CA2921, 2008-Ohio-399, ¶ 1,
fn. 1.
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A. The Fireman’s Rule
{¶ 6} The fireman’s rule is a principle that limits a landowner’s duty to
police officers and firefighters in certain circumstances. It provides that “[a]n
owner or occupier of private property can be liable to a firefighter 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.” Hack v. Gillespie (1996), 74 Ohio
St.3d 362, 658 N.E.2d 1046, syllabus. If none of the four conditions applies, a
landowner or occupier owes no duty to a firefighter or police officer who is
injured while performing official duties on the landowner’s or occupier’s
premises.
{¶ 7} We discussed the origins of the fireman’s rule in Hack. Initially,
its basis was that firefighters and police officers were classified as licensees. Id.
at 364, 658 N.E.2d 1046; see also Gibson v. Leonard (1892), 143 Ill. 182, 32 N.E.
182, overruled, Dini v. Naiditch (1960), 20 Ill.2d 406, 170 N.E.2d 881; Scheurer
v. Trustees of the Open Bible Church (1963), 175 Ohio St. 163, 23 O.O.2d 453,
192 N.E.2d 38. This meant that landowners owed no duty to them as long as “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 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.” Id.at paragraph two of the syllabus. In Scheurer, this court stated, “Policemen and
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firemen do not come upon private property in the performance of their official
duties by invitation, express or implied, nor by the consent or acquiescence of the
owner, nor are they trespassers. Policemen and firemen enter upon premises in
the performance of a public duty under a permission created by law and their
status is that of licensees, and the owner of the premises owes them no greater
duty than that due a licensee. Their status in no sense depends upon who calls
them or turns in the alarm.” Id. at 169, 23 O.O.2d 453, 192 N.E.2d 38.
{¶ 8} We created an exception to this licensee classification by looking
to where the injury occurred in Brady v. Consol. Rail Corp. (1988), 35 Ohio St.3d
161, 519 N.E.2d 387. In that case, a police officer was injured while chasing a
robbery suspect over property owned by a railroad in the area where the railroad
right-of-way intersected with the public right-of-way. Because the land was open
for use by the general public, and because it was reasonable for a landowner to
expect police presence and prepare for it, we determined that a police officer
stands in the same position as others do. Id. at 163. Thus, we held that “[a] police
officer who enters upon privately owned land in the performance of his official
duty, and suffers harm due to a condition of a part of the land held open to the
public, is an invitee in the same manner as other private citizens lawfully using
such land.” Id. at paragraph one of syllabus.
B. Policy Justifications for the Rule
{¶ 9} We changed the focus of the rule altogether in Hack, 74 Ohio St.3d
362, 658 N.E.2d 1046. “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.” (Emphasis sic.) Id. at 365-366.
{¶ 10} Instead, Hack offered several policy considerations that justify
limiting a landowner’s duty to firefighters and police officers: (1) “fire fighters
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and police officers can enter the premises of a private property owner or occupant
under authority of law”; (2) landowners or occupiers cannot anticipate the
presence of safety officers on the premises and would be too burdened if they
owed them a duty of reasonable care; (3) all citizens share the benefits provided
by firefighters and police officers and, therefore, should share in the cost of
workers’ compensation provided to police officers and firefighters injured on the
job; and (4) firefighters and police officers assume the risk of injury by the very
nature of their chosen profession and are trained to expect the unexpected. Id. at
367, 658 N.E.2d 1046.
{¶ 11} The question now before us is whether these reasons apply with
equal force to insulate independent contractors from liability. We have already
held that an independent contractor’s lack of a property interest in the premises
negates the contractor’s ability to rely on defenses traditionally created for
property owners. In Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642,
597 N.E.2d 504, we held that “[a]n independent contractor who creates a
dangerous condition on real property is not relieved of liability under the doctrine
which exonerates an owner or occupier of land from the duty to warn those
entering the property concerning open and obvious dangers on the property.” Id.at syllabus. Instead, we determined that the contractor’s duty to the plaintiff
depended upon the relationship between the parties and the foreseeability of
injury to someone in the plaintiff’s position. Id. at 645.
{¶ 12} A landowner’s or occupier’s liability in tort to persons injured
upon their premises is based on the owner’s or occupier’s power and right to
admit people to the premises and to exclude people from it. Wills v. Frank
Hoover Supply (1986), 26 Ohio St.3d 186, 188, 26 OBR 160, 497 N.E.2d 1118.
Because police officers and firefighters may enter premises under authority of
law, however, a landowner’s or occupier’s right to control who enters the property
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is compromised. On the other hand, an independent contractor has no property
interest in the premises and no right to exclude others from the land.
{¶ 13} Coupled with the owner’s lack of control over the presence of
police or firefighters on the property, the unexpected presence of these safety
forces underpins the fireman’s rule. In Brady, we reasoned that because a police
officer or firefighter is just as likely as anyone else to be on property held open for
public use, a police officer’s or firefighter’s presence was not unforeseeable, and
the landowner did owe a duty of care. Id. 35 Ohio St.3d at 163-164, 519 N.E.2d
387. But in both Scheurer and Hack, the owners of private property owed no
duty because they could not reasonably anticipate the presence of police officers
or firefighters.
{¶ 14} In contrast, an independent contractor’s duty of care does not
depend on whether the presence of a police officer or firefighter is expected.
Once the independent contractor has completed a project on property, the
contractor’s duty is set with respect to all who may be foreseeably injured due to
the contractor’s negligence. See Jackson v. Franklin (1988), 51 Ohio App.3d 51,
53, 554 N.E.2d 932. An injury is foreseeable if the independent contractor knew
or should have known that its breach of duty was likely to result in harm to
someone. Simmers, 64 Ohio St.3d at 645, 597 N.E.2d 504.
{¶ 15} Finally, assumption of the risk is also inapplicable to a situation
involving an independent contractor. Firefighters and police do not assume a
special risk of injury from the work of independent contractors when the risk of
being injured by the contractor’s negligence applies equally to all. It would be
illogical to insulate an independent contractor from a negligence claim simply
because the person injured happened to be a police officer or firefighter acting in
the scope of his or her official duties.
III. Conclusion
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{¶ 16} Accordingly, we hold that an independent contractor whose
negligence is alleged to have caused injury to police officers or firefighters acting
in the scope of their official duties is not relieved of potential liability under the
fireman’s rule. Because the rule does not apply to appellee, Daniel Heskett, to
relieve him of any duty as a matter of law, this case must be analyzed under the
ordinary principles of negligence. The judgment of the Ross County Court of
Appeals is reversed, and the cause is remanded to the trial court.
Judgment reversed
and cause remanded.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, and CUPP, JJ., concur.
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Todaro & Wagoner Co., L.P.A., Frank E. Todaro, and Robert J. Wagoner,
for appellant.
John C. Nemeth & Associates, David A. Herd, and John C. Nemeth, for
appellee.
Livorno & Arnett Co., L.P.A., and Henry A. Arnett, urging reversal for
amicus curiae Ohio Association of Professional Fire Fighters.
Robert W. Kerpsack Co., L.P.A., and Robert W. Kerpsack, urging reversal
for amicus curiae Ohio Association for Justice.
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