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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 226 September Term, 2003

SHASTRI NARAYAN SWAROOP, INC.

v.

JONATHAN D. HART, ET UX.

Davis, Sonner, Kenney, JJ.

Opinion by Davis, J. Dissenting Opinion by Sonner, J.

Filed: July 19, 2004

Firefighter appellee, Jonathan Hart, on appeal, asseverates a belief that there is an undercurrent eroding application of the fireman's rule. Because the trend has been "logically further

extended," he contends, by the recent decision of the Court of Appeals in Tucker v. Shoemake, 354 Md. 413 (1999), and our decision in Rivas v. Oxon Hill Joint Venture, 130 Md. App. 101 (2000), he asks that we affirm the jury award of $454,396.43. The very

decisions, upon which he relies, however, deftly submerge the proposition he espouses on appeal. Appellee1 filed suit against appellant Shastri Nayaran

Swaroop, Inc., owner and operator of the Regal Inn on Pulaski Highway in Baltimore County, for injuries sustained while

responding to a fire at the motel.

Subsequent to discovery,

including extensive depositions of parties and witnesses, appellant filed a motion for summary judgment, asking the lower court to rule that the fireman's rule applies as a matter of law. After appellee

responded, the Circuit Court for Baltimore County conducted a hearing on November 5, 2001 and denied the motion. A trial was then held from March 10 to 12, 2003, during which appellant made a motion for judgment after the conclusion of appellees' case, which was denied, as was appellant's renewed motion for judgment after all of the evidence had been presented.

Suit was filed by Jonathan D. Hart and Sabrina Hart, his wife, who claimed consortium. Reference hereinafter to "appellee" in the singular refers to Jonathan Hart.

1

- 2 The case was subsequently submitted to the jury which returned its verdict on March 12, 2003; judgment was entered on March 13, 2003. The instant appeal followed in which appellant raises the following questions: I. Did the [c]ircuit [c]ourt err or abuse its discretion in denying appellant's motion for summary judgment? Did the [c]ircuit [c]ourt err or abuse its discretion in denying appellant's motions for judgment during the jury trial, thus permitting the matter to be submitted to the jury?

II.

III. Did the [c]ircuit [c]ourt err or abuse its discretion in refusing to instruct the jury with respect to the Maryland law on liability of a premises owner for an injury sustained by one coming onto the premises with regard to the legal status of that individual at the time of the injury and the nature of the cause or event resulting in the injury? IV. Assuming that summary judgment was properly denied, motions for judgment were properly denied, and the jury instructions were appropriate, did the jury verdict conform to the evidence and to the instructions?

Because we hold that the fireman's rule is applicable and the circuit court therefore erred in denying appellant's motion for summary judgment and motions for judgment, we need not reach questions 3 and 4. the circuit court. We shall, accordingly, reverse the judgment of

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FACTUAL BACKGROUND
Summarily, at approximately 4:30 a.m. on January 25, 2000, appellee, after responding to a call for a fire, was injured when he fell several feet down an open stairwell as he attempted to make his way to the second level of appellant's motel where patrons were ostensibly visibility. trapped. Undisputably, he fell because of low

Appellee submitted what he styled as the "material

facts" in his memorandum in support of his response to appellant's motion for summary judgment: II. Material Facts

In January 2000, the Plaintiff, Jonathan Hart, was employed as a Lieutenant with the Baltimore County Fire Department. Jonathan Hart was assigned to the Station Number 15, Eastview. On January 25, 2000, between 4:30 a.m. and 5:00 a.m., Jonathan Hart and other members of the Baltimore County Fire Department responded to a call for a motel fire on Pulaski Highway. Upon arrival at the Regal Inn, the firefighters encountered heavy fire and smoke conditions. The building was not visible upon arrival due to the heavy smoke. Fire was observed on the second floor of the two--story motel. Jonathan Hart was ordered to perform search and rescue on the side of the building. Mr. Hart gathered his equipment, including a thermal imaging device, and proceeded to the side of the building to search for victims. A thermal imaging device or camera detects differences in temperature and is used to search for victims and to determine the location of the fire. The operator of the camera can look through it and see a silhouette with any temperature change within one tenth of a degree. The camera is used in "view and move" fashion. In other words, the

- 4 operator of the device views an area, then lowers the camera and moves in the direction viewed. Mr. Hart, standing in the parking lot on the side of the building, sought access to the second floor of the motel to search for trapped victims. Mr. Hart, as he could not otherwise see because of darkness and smoke, viewed the building through the thermal imaging camera and determined that there was no fire below the second floor. He then looked for a stairway to access the second floor. He saw what he believed to be a stairway and walked towards the building. He did not look into the thermal imaging camera once he began walking. A railing extended along the walkway on the side of the building. Mr. Hart used the railing as a guide into an otherwise blind path as he walked with his equipment. As he walked along the railing, he stepped into space, falling several feet into an open and unguarded stairwell. Mr. Hart sustained severe injuries as a result. (Emphasis added.) During discovery, appellee testified at his deposition on January 11, 2001: Q. A. Q. A. Q. A. Was there, were there flames visible? Yes. Was there smoke visible? It was dark out, but I would say yes. All right. And where was the smoke, to the best of your recollection? Coming from that area. And the smoke that I could see -- I don*t know the answer to that question. Well, was

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