Christensen v. Murphy

• Decision Date: 01 May 1984
• Docket Number: No. TC,TC
• Citation: 296 Or. 610,678 P.2d 1210
• Parties: Wendy CHRISTENSEN, Personal Representative of the Estate of John Paul Christensen, Petitioner on Review, v. Sherrie MURPHY, Respondent on Review. 14561; CA A20590; SC 28701.
• Court: Oregon Supreme Court

Page 1210

678 P.2d 1210

296 Or. 610

Wendy CHRISTENSEN, Personal Representative of the Estate of John Paul Christensen, Petitioner on Review, v. Sherrie MURPHY, Respondent on Review.

No. TC 14561; CA A20590; SC 28701.

Supreme Court of Oregon.

Argued and Submitted Oct. 4, 1982.

Decided March 20, 1984.

Rehearing Denied May 1, 1984.

W. Eugene Hallman, Pendleton, argued the cause for petitioner on review. With him on the briefs were Mautz, Hallman & Teicher, Pendleton, and Pippin & Bocci, Portland.

Douglass M. Hamilton, Portland, argued the cause for respondent on review. With him on the response and brief were I. Franklin Hunsaker and Bullivant, Wright, Leedy, Johnson, Pendergrass & Hoffman, Portland.

Darrell E. Bewley, Salem, filed a brief of amicus curiae in the Court of Appeals in behalf of State Acc. Ins. Fund.

Will Aitchison of Aitchison & Sherwood, Portland, filed a brief of amicus curiae in the Supreme Court in behalf of Or. Council of Police Associations.

Before LINDE, PETERSON ^*, TANZER ^**, CAMPBELL and CARSON, JJ.

CARSON, Justice.

Plaintiff's decedent, a police officer, was killed in the course of his duties allegedly as the direct result of defendant's negligence. The trial court, however, held that plaintiff's wrongful death claim against defendant was barred by the "fireman's rule". ¹ In so doing the trial court applied the "fireman's rule" to a police officer (see Cullivan v. Leston, 43 Or.App. 361, 602 P.2d 1121 (1979), rev. den. 288 Or. 527 (1980)) and extended it to bar recovery for injuries suffered away from the premises where the negligence allegedly occurred. ² The Court of Appeals affirmed. Christensen v. Murphy, 57 Or.App. 330, 644 P.2d 627 (1982).

We accepted review to determine whether the "fireman's rule" should be extended to off-premises injuries suffered by a police officer who encounters a situation allegedly created by defendant's negligence. As a general rule, parties to an appeal are restricted to the questions raised and preserved in the trial court. Travelers Indemn. v. American Ins., 278 Or. 193, 199, 563 P.2d 684 (1977). However, having granted review on the issue of the extension of the "fireman's rule", we are compelled to examine any extension of the rule in light of the law as it existed at the time it was argued in the trial court, including legislative changes and caselaw interpreting the changes. The effect of the statutory change on the rule was discussed in the petition to this court and the response thereto and argued to this court by both parties. Upon examining the basis of the "fireman's rule", we conclude that an extension is inappropriate and the rule, itself, is not supportable as a rule of Oregon tort law. Thus, we hold that plaintiff's claim is not barred on these facts.

The judgment appealed from is based on an order granting defendant's motion for summary judgment. The entry of summary judgment is proper only where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. ORCP 47 C. Where plaintiff has cited the granting of the motion as error, the record must be viewed in the light most favorable to her. Yartzoff v. Democrat-Herald Publishing Co., 281 Or. 651, 655, 576 P.2d 356 (1978).

On February 16, 1976, defendant, a night matron at the Northwest Regional Youth Center in Pendleton, permitted Daryl Thompson to enter the facility. Once inside, Thompson forced defendant to release Jeanne Nobel, a minor in custody there. Thompson and Nobel then fled to an automobile a short distance away. Thompson, however, had difficulty getting the automobile started. By coincidence, Pendleton Police Officer John Christensen, plaintiff's decedent, drove by while on duty. Without knowing of the recent escape, Christensen stopped and began to assist Thompson in starting the automobile. Nobel became nervous and fled, yelling to Thompson to "run." Christensen ran after Nobel and tackled her about 20 yards from the car. Thompson followed after the pair and, in his struggle to free Nobel, fatally stabbed Christensen.

Plaintiff alleges that defendant was negligent in several particulars ³ and that such negligence was the cause of her decedent's death. In an earlier decision by this court the threshold question of whether plaintiff's complaint stated a claim for negligence against defendant was decided. In Christensen v. Epley (hereinafter, "Christensen I"), 287 Or. 539, 601 P.2d 1216 (1979), this court, by an evenly divided vote, ⁴ affirmed that part of the Court of Appeals decision which held that the trial court erred in entering judgment on demurrer for defendant because plaintiff's complaint did state a claim for negligence against defendant. Christensen v. Epley, 36 Or.App. 535, 585 P.2d 416 (1978). In Christensen I, the Court of Appeals held that plaintiff's complaint alleged sufficient facts to establish a legal duty owed Christensen by Murphy to take reasonable care to prevent escape and, upon escape, to alert the police. The Court of Appeals further held that the causal link between defendant's allegedly negligent conduct and Christensen's death was sufficiently alleged to survive demurrer and also that the intervening criminal act of Thompson was not a superseding cause of Christensen's death. The Court of Appeals then held that the issue of foreseeability presented a jury question. Because the question of legal duty has been decided in Christensen I, 36 Or.App. 535, 585 P.2d 416 (1978), aff'd in part by an evenly divided court, rev'd in part, 287 Or. 539, 601 P.2d 1216 (1979), we will not reconsider it here.

The question this case presents is whether, notwithstanding any negligence on defendant's part which may have caused Christensen's death, plaintiff is barred from recovery because Christensen was a police officer acting within the scope of his duties when his death occurred.

Before deciding the present case, it is helpful to review the history of the "fireman's rule" in Oregon. Spencer v. B.P. John Furniture Corp., 255 Or. 359, 467 P.2d 429 (1970), was the first and, until now, the only case in which this court decided the application of the "fireman's rule". ⁵ The facts there presented the issue in its prototypical form: The decedent was a paid member of a public fire department who was called to fight a fire on the defendant's premises that had allegedly been caused by the defendant's negligence. The decedent was fatally injured while fighting that fire by an explosion caused by an accumulation of dust in the premises. The explosion was found to be a risk naturally inherent in such a fire, and the court observed, as a statement of the "fireman's rule", that:

"[t]he authorities are almost unanimous to the effect that an owner or occupier is not liable to a paid fireman for negligence with respect to creating a fire." 255 Or. at 362, 467 P.2d 429.

The result in Spencer --the plaintiff's claim in negligence against the owner of the premises was barred--was consistent with the weight of authority. In Spencer, this court dismissed traditional premises liability analysis, which early decisions in other jurisdictions had employed, and stated that a fire fighter enters a premises as a matter of right pursuant to his public employment. "Therefore, such classifications as trespasser, licensee, or invitee are irrelevant to owners' or possessors' duty to firemen." Spencer v. B.P. John Furniture Corp., supra, 255 Or. at 362, 467 P.2d 429. The opinion quoted with approval from Krauth v. Geller, 31 N.J. 270, 157 A.2d 129, 130-31 (1960), wherein Weintraub, C.J., explained the basis of the "fireman's rule" as assumption of risk and as a policy decision:

" * * * The rationale for the prevailing rule is sometimes stated in terms of 'assumption of risk,' used doubtless in the so-called 'primary' sense of the term and meaning that the defendant did not breach a duty owed, rather than that the fireman was guilty of contributory fault in responding to his public duty. [Citation omitted.] Stated affirmatively, what is meant is that it is the fireman's business to deal with that very hazard and hence, perhaps by analogy to the contractor engaged as an expert to remedy dangerous situations, he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid. Probably most fires are attributable to negligence, and in the final analysis the policy decision is that it would be too burdensome to charge all who carelessly cause or fail to prevent fires with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created, occurrences. Hence, for that risk, the fireman should receive appropriate compensation from the public he serves, both in pay which reflects the hazard and in workmen's compensation benefits for the consequences of the inherent risks of the calling [citing cases]." 255 Or. at 362-63, 467 P.2d 429.

This court in Spencer then held:

" * * * We agree for the reasons set forth in the quotation from Krauth that there should be no liability on the part of a possessor or owner of the premises to paid firemen for injuries from negligently caused fires." 255 Or. at 364, 467 P.2d 429.

We further held, however, that a fire fighter does not assume all risks encountered in fighting fires. He or she has a right to expect that the owner or possessor of premises will not imprudently permit an unusual, serious hidden danger of a totally unexpected kind. Id. at 365, 467 P.2d 429.

"A measure of protection resulting from training and experience can be taken against apparent, known, or to-be-anticipated risks. However, a fireman is completely vulnerable to such a hidden danger as described above, and we see nothing in the lack-of-duty concept of assumption of risk or in public...