Farmer v. B & G FOOD ENTERPRISES, INC.

• Decision Date: 06 June 2002
• Docket Number: No. 2000-CA-00722-SCT.,2000-CA-00722-SCT.
• Citation: 818 So.2d 1154
• Court: Mississippi Supreme Court
• Parties: Shelton W. FARMER v. B & G FOOD ENTERPRISES, INC. d/b/a Taco Bell # 15326 and Clayton S. Brunson, individually, as the natural father and for and on behalf of Clayton S. Brunson, II, A Minor.

818 So.2d 1154

Shelton W. FARMER v. B & G FOOD ENTERPRISES, INC. d/b/a Taco Bell # 15326 and Clayton S. Brunson, individually, as the natural father and for and on behalf of Clayton S. Brunson, II, A Minor.

No. 2000-CA-00722-SCT.

Supreme Court of Mississippi.

June 6, 2002.

Sheila Havard Smallwood, Glenn Louis White, Attorneys for Appellant.

Richard B. Tubertini, Jeffrey G. Pierce, Attorneys for Appellees.

EN BANC.

WALLER, J., for the Court.

¶ 1. This appeal is brought by Shelton W. Farmer, a Picayune, Mississippi, police officer, from the M.R.C.P.12(b)(6) dismissal by the Pearl River County Circuit Court of the complaint for personal injuries he filed against B & G Enterprises, Inc. d/b/a Taco Bell # 15326 (Taco Bell), located in Picayune, Mississippi, and Clayton S. Brunson, individually and on behalf of Clayton S. Brunson, II,¹ a minor. On May 28, 1996, Officer Farmer responded to a disturbance call at the Taco Bell in Picayune, Mississippi. Upon entering the restaurant, Farmer saw Clayton S. Brunson II, a visitor, and Daniel T. Magee, a Taco Bell employee, wrestling with each other. In attempting to break up the fight, Farmer was kicked in the knee by Brunson. Farmer suffered a severe knee injury requiring knee surgery and numerous follow up treatments. Subsequently, Farmer filed suit, and the circuit court dismissed, granting Taco Bell's M.R.C.P. 12(b)(6) motion to dismiss. The dismissal was based upon a doctrine not yet adopted by Mississippi courts, the police officer and firefighter's rule. The circuit court certified its dismissal as final pursuant to M.R.C.P. 54(b). Farmer appeals, contending that the circuit court erred in dismissing his complaint and in adopting the police officer and firefighter's rule. We affirm the dismissal of the complaint.

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN DISMISSING THE COMPLAINT UNDER M.R.C.P. 12(b)(6).

¶ 2. A motion to dismiss under M.R.C.P. 12(b)(6) raises an issue of law. L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1138 (Miss.1999) (collecting authorities). We conduct a de novo review of questions of law. Id. (citing UHS-Qualicare, Inc. v. Gulf Coast Cmty. Hosp., Inc., 525 So.2d 746, 754 (Miss.1987)). When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of his claim. T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss.1995).

¶ 3. The circuit court adopted the "firefighter's rule," which prohibits recovery by a firefighter, or, in this case, a police officer, injured as a result of "a risk inherent in, and foreseeable as a part of their duties as police officers." 62 Am.Jur.2d Premises Liability § 431 (1990). The circuit court determined that Farmer did not allege that Taco Bell failed to warn him of any risk not reasonably expected under the circumstances.

¶ 4. The firefighter's rule is an issue of first impression in Mississippi. While it appears most jurisdictions still follow some version of the firefighter's rule, Minnesota, Florida, and New Jersey have abrogated the rule by statute, and Pennsylvania, Oregon, and Colorado have abolished the rule by decision. See Hopkins v. Medeiros, 48 Mass.App.Ct. 600, 724 N.E.2d 336, 341-43 (2000)

. While Michigan seems to have abandoned the rule by statute (see Mich. Comp. Laws Ann. § 6000.2965), it appears other Michigan statutes retain the traditional common law doctrine of the firefighter's rule. See Harris-Fields v. Syze, 461 Mich. 188, 600 N.W.2d 611, 616-17 (1999).

A. Firefighter's Rule Under Traditional Landlord Liability

¶ 5. The firefighter's rule originated over one hundred years ago and classified a firefighter as a licensee, with the property owner owing a duty to refrain from engaging in wilful, wanton or intentional conduct:

In Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182 (1892), as well as most of the early cases involving fire fighters, the court analyzed the issue of liability on the basis of the traditional status categories of entrants upon the property of another—invitee, licensee, or trespasser. The Gibson court determined that the plaintiff fireman was a licensee, and, therefore, the property owner only owed him a duty to avoid inflicting wilful, wanton, or intentional injuries.

Kreski v. Modern Wholesale Elec. Supply Co., 429 Mich. 347, 415 N.W.2d 178, 183 (1987) (citing Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182 (1892)).

¶ 6. The Restatement (Second) of Torts treats a public officer entering a part of the land open to the public in the performance of public duty to hold the status of an invitee. Restatement (Second) of Torts § 345 & comments (1965). (Note that § 345(2) would be applicable to the instant case, because the policeman suffered harm "because of a condition of a part of the land held open to the public.") Thus, Farmer, under the Restatement (Second) of Torts, would enjoy invitee status, which under Mississippi premises law raises the duty of Taco Bell to Farmer to that of reasonable care. Clark v. Moore Mem. United Methodist Church, 538 So.2d 760, 764 (Miss.1989) ("The duty owed by an invitor to an invitee is to exercise reasonable care to keep the premises in a reasonably safe condition and, if the invitor knows of, or by the exercise of reasonable care should have known of, a dangerous condition, which is not readily apparent to the invitee, the invitor is under a duty to warn the invitee of such condition.").

¶ 7. Twenty years after the Restatement was written, Professor Prosser stated that Restatement § 345(2) is followed only "by a small number of courts." Regardless, Prosser expressed some approval for it. See Prosser & Keeton, The Law of Torts § 61, at 432 (1984). Most states that have addressed the issue continue to treat police officers and firefighters as licensees either expressly or as a practical effect by basing the doctrine on public policy.

B. Firefighter's Rule as Public Policy

¶ 8. The inherent limitations in accurately fitting firefighters into the traditional landowner liability context have caused courts to look beyond the concept of the entrant's status as a rationale for the firefighter's rule, and instead adopt the rule on the basis of assumption of risk and public policy. See Kreski, 415 N.W.2d at 184

. Many states, including Mississippi,² have abandoned or merged the doctrine of assumption of risk into other negligence schemes. Despite this trend, nearly all of those states choosing to abandon the assumption of risk doctrine retained the firefighter's rule, instead relying on public policy as the sole basis for reaffirming the utility and viability of the rule. See Carson v. Headrick, 900 S.W.2d 685, 689-90 (Tenn.1995) (citing decisions in California, Florida, Hawaii, Idaho, Kansas, Kentucky, Nevada, New Hampshire, New Jersey, Rhode Island, Wisconsin, Arizona, Georgia, Indiana, and New Mexico).

¶ 9. The rationale for adopting the firefighter's rule as public policy is tied to the nature of the public service police officers and firefighters provide as public servants.

The policy arguments for adopting a fireman's rule stem from the nature of the service provided by firefighters and police officers, as well as the relationship between these safety officers and the public they are employed to protect.

It is beyond peradventure that the maintenance of organized society requires the presence and protection of firefighters and police officers. The fact is that situations requiring their presence are as inevitable as anything in life can be. It is apparent that these officers are employed for the benefit of society in general, and for people involved in circumstances requiring their presence in particular. The court in Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 694 P.2d 433 (1985) noted that "[f]irefighters enter on the premises to discharge their duties. Fire fighters are present upon the premises, not because of any private duty owed the occupant, but because of the duty owed to the public as a whole." Calvert, supra, 236 Kan. 570,694 P.2d 433.

The public hires, trains, and compensates firefighters and police officers to deal with dangerous, but inevitable situations. Usually, especially with fires, negligence causes the occasion for the safety officer's presence.

Kreski, 415 N.W.2d at 186-87. See also Carson, 900 S.W.2d at 690

.

¶ 10. Rescue personnel are uniquely situated and thus call for a special rule. As noted by one commentator,

A firefighter may not decline to enter onto premises to fight a fire because a porch which he must cross appears rickety. A police officer may not decline to enter an office building to apprehend a suspected thief, simply because the approach to the office building may be slippery with snow and ice. On the contrary, police officers and firefighters simply act differently from ordinary citizens in encountering the obligations of their occupations and the manner in which they do so must be considered when assessing the applicability of the fireman's rule. Ordinary citizens do not, for instance, alight from their cars and attempt to traverse unknown premises, in the pitch dark of night, without some effort to illuminate their path. These are actions which no landowner should reasonably anticipate or foresee that a citizen will take. These are actions which the firefighter or police officer must take, at his sole judgment and discretion, without any notice or warning to the landowner of the unusual use which will be made of the property.

Margaret Fonshell Ward, Clearing the Smoke Around the Fireman's Rule, 34 M.B.J. 48, 53 (June 2001).

¶ 11. Minnesota and Oregon, two jurisdictions that have refused to recognize the firefighter's rule, would ignore premises liability standards and public policy and frame the issue on the basis of negligence and reasonable necessity. In Christensen v. Murphy, 296 Or. 610,...