Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
A former Fort Wayne firefighter who was injured responding to a warehouse fire can bring a claim for damages against an electric scooter company that leased the building for storage, the Indiana Supreme Court ruled Tuesday in reversing a lower court’s summary judgment order.
The case involves Richard Dolsen, a former captain with the Fort Wayne Fire Department who was injured inside a building owned by Sweet Real Estate-City Center, LLC, which leased the warehouse to VeoRide, Inc., a company which stored electric scooters and other parts and equipment on the premises.
The warehouse caught fire in June 2020 and Dolsen arrived on the scene.
According to court records, as he moved through the building, Dolsen pressed his hands along the outer-wall perimeter to look for a ventilation opening or an electrical breaker box.
Next to a stairwell, he extended his arm to press against the wall “but contacted nothing but air.” He fell through an opening above a basement stairwell, dropped about six feet, and injured his neck and right arm.
Before he entered the warehouse, Dolsen did not know the inside was unfinished.
From Dolsen’s experience fighting fires at other commercial buildings, he expected a building’s owner or tenant to warn him of any dangers inside.
Even before the fire, Sweet and VeoRide knew of the opening in the wall above the stairwell. VeoRide’s employees worked daily around the wall opening with no incident.
Both companies also knew the building was dark when the lights were off. Yet when they learned of the fire, no one from Sweet or VeoRide warned the fire department or dispatch about potential hazards in the warehouse.
Thus, when Dolsen entered the building, he did not know he would find only air when he reached for a wall above the stairwell. Dolsen required treatment for his injuries, including surgery to his neck and right arm.
He was unable to return to full duty because of “permanent deficits.”
Dolsen sued VeoRide and Sweet and alleged, as relevant here, they were negligent in failing to fix a portion of the wall and in failing to warn the fire department of the wall opening.
Both defendants moved for summary judgment, arguing that Dolsen’s claims are barred under the firefighter’s rule. Sweet also argued it was not liable because its tenant, VeoRide, had full possession and control of the building.
The Allen Superior Court granted both motions and held that the firefighter’s rule bars Dolsen’s claims.
The court found that the defendants owed no duty to Dolsen because they did not violate a statute meant to protect firefighters; they did not act willfully or wantonly; and they did not know the wall opening was dangerous.
Dolsen appealed but challenged the trial court’s ruling only as to VeoRide, thus leaving intact the judgment for Sweet. The Indiana Court of Appeals reversed and remanded for further proceedings.
It held that the firefighter’s rule does not bar Dolsen’s claim against VeoRide because failing to warn of the wall opening “is separate from and independent of the negligence that caused the situation necessitating Dolsen’s presence in VeoRide’s building.”
VeoRide then sought transfer, which the Indiana Supreme Court granted, thus vacating the appellate opinion.
In its opinion, the high court held that the firefighter’s rule from Woodruff v. Bowen, 34 N.E. 1113 (Ind. 1893) and the expanded first-responder’s rule from Babes Showclub, Jaba, Inc. v. Lair, 918 N.E.2d 308 (Ind. 2009) are two separate doctrines: the former applies only to firefighters and prescribes the duty owed for a premises-liability claim arising when a firefighter enters premises to extinguish a fire; the latter limits the duty owed to all first responders during an emergency.
“Under Woodruff, VeoRide owed Dolsen a duty as a licensee, but issues of fact remain on whether VeoRide breached this duty,” Justice Geoffrey Slaughter, writing for the high court, said in reversing the lower court’s order and remanding the case for further proceedings.
The case is Richard Dolsen, Jr. v. VeoRide, Inc., and Sweet Real Estate-City Center, LLC, 24S-CT-225.
Please enable JavaScript to view this content.