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There were genuine issues of material fact concerning a Fort Wayne firefighter’s complaint against an electric scooter company for failing to warn him about a gap in a wall, the Court of Appeals of Indiana ruled Monday in reversing a trial court’s granting of summary judgment to the company.
Fort Wayne Fire Department Captain Richard Dolsen Jr. was injured while responding to a fire in a building leased by VeoRide Inc., according to court records.
VeoRide is a company that rents electric scooters and bicycles that are powered by lithium batteries.
In 2019, the company leased a building in Fort Wayne from Sweet Real Estate-City Center LLC.
VeoRide Regional General Manager Benjamin Thomas and Sweet real estate broker Tiffany Fries did a walk-through of the building.
Because the building had no electricity, light fixtures and only one window on the second floor, they had to use big flashlights to see.
Thomas asked Sweet to install electricity, light fixtures and outlets to charge batteries, which was done after VeoRide and Sweet entered into a commercial lease agreement.
VeoRide used the building to store scooters, scooter parts, batteries, battery racks, and battery recharging equipment.
In June 2020, one of the batteries ignited and started a fire in the building. No one was in the building at the time.
Fries received a call from her company’s security chief about the fire and she called the fire department on her way toward the building.
She also called VeoRide Manager Eric Xayarath, who had already been notified and was on his way to the building. He called Thomas to let him know about the fire.
Dolsen’s unit was dispatched to the fire, and he was equipped with a radio so he could get any warning sent by Sweet or VeoRide quickly and easily.
Dolsen entered the building through a door and could not see due to lack of light and smoke.
He moved around the perimeter of the inside of the building to look for a ventilation opening and electrical breaker box by touching and pressing the inside wall to guide him.
Just after he passed a closed door, he extended his arm to press the wall as he had been doing but felt nothing and fell through an opening in the wall down into a stairwell.
The wall was composed of bare wooden studs, with a gap left by a missing stud. The fall injured Dolsen.
Fries and Xayarath arrived at the building after the fire was extinguished.
In March 2022, Dolsen filed a complaint against VeoRide and Sweet alleging that the fire was caused by the mishandling of the batteries and that he should have been warned about the opening in the wall.
VeoRide filed a motion for summary judgment asserting Dolsen’s claims were barred by Indiana’s firefighter’s rule.
VeoRide claimed that its employees walked around and in the area of the missing stud on a day-to-day basis without sustaining injuries and that the wall was in the same condition it had been when it started leasing the building.
Sweet filed a motion claiming it was entitled to summary judgment because it passed full control of the building to VeoRide.
In March 2023, the Allen Superior Court issued an order granting both summary judgment motions and found that Dolsen’s claims were barred by Indiana’s firefighter’s rule.
On appeal, Dolsen argued that the trial court erred in granting summary judgment in favor of VeoRide.
The appellate court agreed with Dolsen and found that the gap in the wall next to the stairwell was not something he would have had a reason to know.
“Assuming arguendo that such a duty existed, we further conclude that genuine issues of material fact exist regarding whether VeoRide’s failure to warn Dolsen of the condition and the risk involved was a breach of that duty, that is, a failure to exercise reasonable care under the circumstances pursuant to Restatement Section 342(b); among the factors to be considered are whether VeoRide had a reasonable opportunity to alert fire department personnel,” Judge Terry Crone wrote for the appellate court.
The court also found additional issues of material fact exist regarding whether any breach of a duty to warn proximately caused Dolsen’s injuries and the extent to which Dolsen might have contributed to his injuries for purposes of the Comparative Fault Act.
Addressing the Indiana firefighter’s rule, which was established in 1893, the court found Dolsen didn’t have a claim for VeoRide’s allegedly negligent handling of the scooter batteries.
The appellate court reversed the trial court’s entry of summary judgment in VeoRide’s favor and remanded for further proceedings.
The case is Richard Dolsen Jr. v. VeoRide Inc., 23A-CT-945.
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