Martin v. Gaither

466 S.E.2d 621, 219 Ga. App. 646, 96 Fulton County D. Rep. 108, 1995 Ga. App. LEXIS 1124
CourtCourt of Appeals of Georgia
DecidedDecember 5, 1995
DocketA95A1246
StatusPublished
Cited by24 cases

This text of 466 S.E.2d 621 (Martin v. Gaither) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martin v. Gaither, 466 S.E.2d 621, 219 Ga. App. 646, 96 Fulton County D. Rep. 108, 1995 Ga. App. LEXIS 1124 (Ga. Ct. App. 1995).

Opinions

Beasley, Chief Judge.

After he was injured as a pedestrian, Georgia State University Police Officer Gaither and his wife sued MARTA, the bus driver, and car operator Martin for negligence and loss of consortium. We permitted Martin’s interlocutory appeal from the denial of her motion for summary judgment. It had rested on the theory that the fireman’s rule applies to police officers.

The evidence construed in a light most favorable to Gaither and his wife shows that on February 3, 1993, Gaither was directing traffic on Gilmer Street in Atlanta. Martin, who is a university student, was traveling down Gilmer Street on her way to one of the school’s park[647]*647ing lots. When she arrived at the lot, it was full, and Gaither motioned for her to continue moving. Martin complied, drove around the block, and returned to Gaither’s location. She stopped her car in the street adjacent to a “No Stopping or Standing” sign. Gaither, who was on the sidewalk at the time, instructed Martin to move her car, but Martin failed to obey. Consequently, Gaither entered the street to talk to her on the driver’s side and again told Martin to move her car. As Martin began to pull away, Gaither straightened up and was struck by a MARTA bus that had changed lanes in an attempt to go around Martin. The bus knocked Gaither into the back of Martin’s car, causing him injury.

The first question in this case is whether the fireman’s rule should be applied to the plaintiff police officer Donald Gaither in this negligence action. He and his wife allege that Martin negligently operated her vehicle, creating a trafile hazard. This, it is alleged, in concert with the negligence of the bus driver, caused the injury-producing collision of Gaither first with the bus and then with Martin’s car.

Generally speaking, the fireman’s rule is that “while a fireman may recover for negligence independent of the fire, a landowner is not liable for negligence in causing the fire. . . . [0]ne ‘cannot complain of negligence in the creation of the very occasion for his engagement.’ ” Ingram v. Peachtree South, 182 Ga. App. 367, 368 (355 SE2d 717) (1987). The trial court was correct in stating that the fireman’s rule has not yet been applied to police officers in Georgia. The court in Bycom Corp. v. White, 187 Ga. App. 759, 762 (1) (371 SE2d 233) (1988), stated that the rule was applicable to “public safety employee [s],” including both firemen and policemen. But this purported holding in Bycom is mere dicta, as that case involves a fireman who was seriously burned by exploding natural gas when firemen were summoned to investigate a gas leak. The issue was whether the fireman’s rule, ordinarily stated in terms of a landowner’s liability, precluded recovery from an off-premises tortfeasor. The court adopted a broader view of the rule than had been stated in Ingram and held that it applied and thus defeated recovery despite the fact that defendant was not a landowner on whose property the injury occurred. Thus, whether the fireman’s rule applies to law enforcement officers is still open.

The fireman’s rule, as such, was introduced into Georgia law less than a decade ago by a federal trial court, in Brown v. Gen. Elec. Corp., 648 FSupp. 470 (M.D. Ga. 1986).1 The diversity case was gov[648]*648erned by Georgia law, and although the court recognized that the Supreme Court of Georgia had not yet addressed the rule, it concluded that the Supreme Court would adopt the rule if it had the opportunity to do so. Reasoning that the doctrine of assumption of the risk is a solid part of Georgia negligence law and that there was widespread adoption of the rule in other states, the court applied it in the case as Georgia law.2 It articulated the rule as “precluding] a fireman injured while fighting a fire from bringing an action against the party whose negligence allegedly caused the fire.” Id. at 471.

The plaintiff was a fireman who was injured when he jumped off a burning building after an explosion. He alleged that the fire was initiated by a defective coffee maker manufactured by defendant. The court awarded summary judgment to the defendant as to both negligence and strict liability because it concluded that the fireman had assumed the risk of the injury as a matter of law: “jumping off a burning building is one of the precise risks a fireman knows he will confront when fighting fires. . . .” Id. at 472.3

The next year, in Ingram, supra, we were faced with the plaintiffs’ contention that “the fireman’s rule is antiquated and should be abolished.” Id. at 368. Finding that under Georgia law, firemen are treated as licensees of the landowner upon whose property they come to fight fires, we acknowledged the validity of the fireman’s rule without referring to it as such and turned to the determination of “what duty is owed the fireman with regard to events extrinsic to the fire’s inception.” Id. at 368. The fire had been started in the vacant building by a vagrant, and the firemen sued the premises owner for negligently maintaining the building. We concluded in effect that there was a lack of proximate cause, that “[plaintiffs’ injuries resulted not from any pitfall [created or allowed by defendant] but from the fire’s sudden intensity,” which led to the firemen falling or jumping to the street. Id. at 369. Moreover, plaintiffs had at least equal knowledge of [649]*649the condition of the premises. These factors precluded recovery, and summary judgment to defendant was affirmed. See, in this connection, 40 Mercer L. Rev. 377, 387-388 (1988).

The Eleventh Circuit Court of Appeals, in a two-to-one decision in White v. Edmond, 971 F2d 681 (11th Cir. 1992), reviewed this beginning history of the fireman’s rule in Georgia, referring to the “equal knowledge” aspect as an application of an assumption of risk rationale, and went on to examine Bycom Corp., supra. It interpreted the Bycom Corp. decision as expanding the fireman’s rule of landowner nonliability to cover the alleged off-premises negligence of a party who was not the landowner. See also 41 Mercer L. Rev. 355, 357-358 (1989). Defendant, manufacturer of an allegedly defective auto, was granted summary judgment because “as a fireman, [plaintiff] White knowingly and voluntarily assumed all risks normally associated with fighting fires, including the explosion of part of the Volvo automobile.” Edmond, supra at 682. The Eleventh Circuit rejected a narrow view of the fireman’s rule as being Georgia’s view and applied the rule to the situation in that case because “[t]he possibility of an unexpected explosion of some object in the Edmonds’ burning house and garage was . . . ‘within the anticipated risks of firefighting.’ ” Id. at 689. This applied to both the negligence and strict liability claims and was based on the two-fold rationale of assumption of risk and public policy found in other states’ cases and accepted as sound in Bycom Corp. The dissent expressed the opinion that “ ‘the issue of whether the Fireman’s Rule will bar recovery for negligence against the manufacturer of a product whose explosion during the course of a fire injures a firefighter’ ” should be certified to the Supreme Court of Georgia. Id. at 689-690.

The strength of the assumption of risk doctrine to persons employed in security is shown in Atlanta Braves v. Leslie, 190 Ga. App. 49 (378 SE2d 133) (1989).

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Bluebook (online)
466 S.E.2d 621, 219 Ga. App. 646, 96 Fulton County D. Rep. 108, 1995 Ga. App. LEXIS 1124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-gaither-gactapp-1995.