dissenting.
Respectfully, I dissent.
This case shatters our rule of longstanding that a “petition for rehearing will be denied where nothing is presented that was not considered at the original hearing.” Bertelsman & Philipps, Ky. Prac., 4th ed., Civil Rule 76.32, p. 621. Petitioners, Sun-mark Industries, Inc. and Sun Oil of Pennsylvania (“Sunmark”) did not, and could not, point to any reason to grant their petition for rehearing consistent with our rule. On the contrary, Sunmark claims only that our opinion “is incorrect” and “that the Court should rectify that portion of its opinion which is erroneous.” In case after case we have held that the original opinion will not be disturbed simply because the petitioner believes that the issue has been erroneously decided.
All matters pertaining to Sunmark’s claim of error were considered and addressed in the original briefs, in oral argument, in conference, and in our opinion. The decision to withdraw that opinion transforms a petition for rehearing into a motion for reconsideration. This abandons longstanding precedent and policy in our Court. Henceforth, we can expect a petition for rehearing in every case. Almost without exception the losing party believes the case has been erroneously decided.
As one might expect when policy is changed in midstream, our new decision creates a potentially serious injustice for another party, Tokheim, Inc. The grounds for deciding that the Fireman’s Rule enunciated in Buren v. Midwest Industries, Inc., Ky., 380 S.W.2d 96 (1964) did not extend to Sunmark were substantially the same as the grounds for deciding that the Fireman’s Rule did not apply to Tokheim, Inc. We have now decided to punish Tok-heim, Inc. for abiding by our decision and refraining from a groundless petition for rehearing by trapping this party into the position of the only remaining defendant in the case. No doubt Tokheim would have also filed a petition for rehearing had it occurred to its attorney that there was any likelihood that this Court would change its mind, as it has done, even though nothing is presented that was not considered originally.
*402The “guts” of our original opinion, now withdrawn, was its interpretation of how Burén should be applied to the present fact situation. We held that the Fireman’s Rule did not extend “protection to Sun Oil in its capacity as a builder or designer in the original construction or installation of the pumping station,” or “to Tokheim, Inc., whose liability, if any, is premised on defective manufacturer of a gasoline dispenser.” In both instances liability is predicated on the decision, squarely faced, that negligence in the original design or construction of the pump and pumping station should not be granted immunity.
The reasoning behind our decision was: “This [the Fireman’s Rule] is a rule of necessity. It does not provide a defense to negligent actors beyond the parameters of those who need to be, and have a right to expect to be, protected in the interest of fire protection.”
We stated that the fireman “has made no contract agreeing not to sue those who may negligently injure him”; that the rule is strictly limited “as a defense for those who are in possession and control of the premises, and to others similarly situated who would be expected to call on the fire department for protection when the fire initiates”; “to those who are indeed the ‘object of [the] fire prevention and control’ [quoting Burén ] which brings him to the scene.”
Sunmark is an absentee commercial landowner as to whom the reasons behind the Fireman’s Rule are not viable. No wrongdoer should be granted immunity unless there are underlying reasons of public policy so compelling as to require relieving the wrongdoer from responsibility for the wrong. The reason behind the Fireman’s Rule is that public policy must encourage a owner in possession, or an occupier or user of the premises, or others in the vicinity of the fire, to call the fire department, uninhibited by any concern for potential liability to a fireman injured by negligence in connection with the cause or the spread of the fire. The reason behind the rule is completely lost where Sunmark is concerned. Essentially, in our original opinion, we held that the Fireman’s Rule does not protect a wrongdoer where the reason for the rule does not apply.
Nineteenth century mechanical jurisprudence was exposed, discredited and discarded by the vast majority of legal scholars and leading jurists years ago, starting with Oliver Wendell Holmes and Roscoe Pound. See for example, Roscoe Pound, Mechanical Jurisprudence, 8 Colum.L.Rev. 605, 620 (1908):
“The nadir of mechanical jurisprudence is reached when conceptions are used, not as premises from which to reason, but as ultimate solutions. So used, they cease to be conceptions and become empty words.”
There is a difference between applying the law judiciously and conservatively and applying the law in a harsh and regressive manner. We lose sight of this difference in our new opinion.
The new opinion has adopted the rationale of the former opinion, which is that the protection of the Fireman’s Rule is not absolute but dependent on the relationship of the defendant to the fire. But the new opinion has abandoned the results that follow logically from that reasoning. If Sun-mark were an owner in possession, or even an owner temporarily absent, there would be reason to consider extending the rule of non-liability to it. But it is none of these. It simply built the gas station and then turned the premises over to a lessee. Initially, after construction and for about seven years, it utilized an intermediary, South Central Oil Company. Its primary interest in the property consisted of seeing that the gas station owner used its products.
As to both Tokheim, Inc. and Sunmark, this is essentially a products liability case based on defective design of the pump and the pumping station upon which it sets. The fact that the pumping station is attached to the realty is a distinction without a difference. As stated in Court v. Grzelinski, 72 Ill.2d 141, 19 Ill.Dec. 617, 620, 379 N.E.2d 281, 284 (Ill.1978):
“The rule cannot be expanded to a free-floating proposition that a fireman cannot recover for injuries resulting from *403risks inherently involved in fire fight-ing_ In negligence actions, assumption of risk is confined to those situations involving persons who have a contractual or employment relationship with the defendant. ... [Assumption of risk is an affirmative defense interposed against a plaintiff who voluntarily exposes himself to a specific, known risk, not a preclusion of recovery against a plaintiff whose occupation inherently involves general risks of injury.”
Tokheim, Inc. can complain, with much justification, that our new opinion applies the Fireman’s Rule so as to deny it, as the manufacturer of the gasoline dispenser, equal protection of the law. If its dispenser was defective it may be liable, but Sun-mark, charged with negligence in its capacity as a builder or designer of the pumping station, is immune. Arguably, this is an arbitrary and unreasonable classification in violation of the Kentucky Constitution § 59. Tabler v. Wallace, Ky., 704 S.W.2d 179 (1985) and In re Beverly Hills Fire Litigation, Ky., 672 S.W.2d 922 (1984).