Apodaca v. Willmore

• Decision Date: 15 May 2015
• Docket Number: 111,987.
• Citation: 51 Kan.App.2d 534,349 P.3d 481
• Parties: Juan A. APODACA, Appellant, v. Mark WILLMORE, Matthew Willmore, and Oak River Insurance Company, Appellees.
• Court: Kansas Court of Appeals

51 Kan.App.2d 534

349 P.3d 481

Juan A. APODACA, Appellant

v.Mark WILLMORE, Matthew Willmore, and Oak River Insurance Company, Appellees.

111,987.

Court of Appeals of Kansas.

May 15, 2015.

Roger D. Fincher, of Bryan, Lykins, Hejtmanek and Fincher, P.A., of Topeka, for appellant.

Joel W. Riggs and Craig C. Blumreich, of Larson & Blumreich Chartered, of Topeka, for appellees.

Before SCHROEDER, P.J., ATCHESON and BRUNS, JJ.

Opinion

BRUNS, J.

This case presents an issue of first impression in Kansas. We are asked to decide whether the judicially created firefighter's rule (previously referred to as the “fireman's rule”) applies to law enforcement officers. We find that the public policy expressed by the Kansas Supreme Court in Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 694 P.2d 433 (1985), applies equally to firefighters and law enforcement officers. Accordingly, we conclude that the firefighter's rule bars law enforcement officers from recovering in negligence actions for injuries they receive in handling public safety calls—such as automobile accidents—as part of their official duties. Moreover, we conclude that the exceptions to the firefighter's rule recognized in Calvert are not applicable to this case. Thus, we affirm the district court's decision.

Facts

At about 3:30 a.m. on October 18, 2009, in Riley County, Matthew Willmore was driving his father's 1998 Ford F–150 pickup north on K–177, which is a four-lane highway separated by a grassy median. Less than a mile north of Interstate 70, Willmore fell asleep at the wheel and rolled the pickup across the median. The truck eventually came to a stop on its wheels, blocking the southbound lanes of the highway. Willmore—who was 18 years old at the time of the accident—had drunk several beers at a friend's house earlier that night.

David McGillis, who was also driving north, witnessed the accident and stopped to assist Willmore. After Willmore exited the pickup truck, he walked to the median where he spoke with McGillis. Willmore then attempted to move the truck but found that it would not start. Although it was dark outside and there were no lights illuminating the highway, Willmore turned off the truck's headlights. He called his parents to inform them of the accident and then began picking up debris from the highway.

In response to a 911 call from McGillis, a dispatcher for the Riley County Police Department (RCPD) advised officers Juan Apodaca and Jonathan Dulaney—who were patrolling together—about the traffic accident. The dispatcher told the officers that the location of the accident was north of Interstate 70 on K–177 and that the vehicle involved in the accident was in the southbound lanes of the highway. Officer Apodaca acknowledged to the dispatcher that the accident was north of Interstate 70. The dispatcher also informed the officers that nobody was injured in the accident.

Officer Apodaca drove to the accident scene—with Officer Dulaney in the passenger seat—at a high rate of speed with his emergency lights and sirens activated. Officer Apodaca saw the headlights and flashers from McGillis' vehicle—that was parked on the center-edge of the northbound lanes—from over a mile away, and he believed it was the scene of the accident. Officer Apodaca did not see the disabled pickup in the southbound lanes and struck it while travelling 104 mph. The second accident occurred at 3:42 a.m.

Around 6 a.m., an evidentiary breath test revealed that Willmore's breath alcohol content was .103. During an interview conducted by a RCPD investigator about 5 months after the accident, Officer Apodaca acknowledged that the dispatcher had told him that the accident was north of Interstate 70 and that the truck was blocking the southbound lanes. But the officer stated that for some reason he envisioned the accident scene being south of Interstate 70. Officer Apodaca did not recall the dispatcher telling him that no one was injured in the accident. Instead, Officer Apodaca stated that he was driving at a high rate of speed because he believed someone may have been injured.

As a result of the accident, both Officer Apodaca and Officer Dulaney suffered serious injuries. They applied for and received workers' compensation benefits. On October 17, 2011, the officers filed a joint petition in Shawnee County District Court, alleging that Willmore's negligence caused them to suffer personal injuries and related damages. The officers also asserted a claim of negligent entrustment against Willmore's father. A few months later, Oak River Insurance Company —the liability carrier for the RCPD—intervened as a party to the lawsuit.

On March 22, 2013, Officer Apodaca, Officer Dulaney, and Oak River Insurance Company filed a motion for partial summary judgment concerning the Willmores' claims of comparative fault. One week later, the Willmores also filed a motion for summary judgment. Among other things, the Willmores argued that the firefighter's rule barred all the officers' claims. Shortly thereafter, Officer Dulaney dismissed his claims against the Willmores.

On March 13, 2014, the district court entered a memorandum decision and order denying the motion for partial summary judgment filed by Officer Apodaca and Oak River Insurance Company but granting summary judgment in favor of the Willmores. In its decision, the district court found that the “fire fighters rule should be and is extended to law enforcement officers.” Accordingly, it concluded that the firefighter's rule barred Officer Apodaca from recovering in this negligence action because he was acting within the scope of his duties as a law enforcement officer at the time of the accident.

Officer Apodaca filed a motion for reconsideration and, for the first time, asserted that Willmore's actions in causing the initial accident were willful, wanton, reckless, or intentional. In an order entered on May 27, 2014, the district court denied Officer Apodaca's motion, concluding “that the grounds for judgment under K.S.A. 60–259(f) are not presented” and that there “has been no intervening change in the controlling law, no new evidence which was previously unavailable and there is no manifest injustice to correct.” Moreover, the district court found that the arguments presented in the motion were either “an attempt to revisit issues already addressed or advance arguments that could have been raised in prior briefing.” Thereafter, Officer Apodaca timely appealed to this court.

Analysis

Standard of Review

When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The district court is required to resolve all facts and inferences that may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules as the district court. Stanley Bank v. Parish, 298 Kan. 755, 759, 317 P.3d 750 (2014).

In negligence actions, summary judgment should be granted with caution. See Fettke v. City of Wichita, 264 Kan. 629, 632, 957 P.2d 409 (1998). Nevertheless, summary judgment is generally proper in a negligence action if the only questions presented are questions of law. Here, the parties recognize that the issue presented involves a question of law. Thus, our review in this case is unlimited. See Martin v. Naik, 297 Kan. 241, 245, 300 P.3d 625 (2013) (citing Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 220–21, 262 P.3d 336 [2011] ).

Development of the Firefighter's Rule

The primary issue presented in this negligence action is whether the firefighter's rule should be extended to law enforcement officers. The rule provides that a firefighter cannot recover for injuries caused by the wrong that initially required his or her presence at the scene in an official capacity. Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 576, 694 P.2d 433 (1985). The rule, then, prohibits firefighters from suing the person who was negligently responsible for causing the fire or other hazard for injuries they suffer in responding to and quelling that hazard, subject to several exceptions. Although the Kansas Supreme Court has addressed the firefighter's rule on two occasions, no appellate cases in this state have previously addressed this particular question.

Accordingly, we are faced with an issue of first impression in Kansas.

The firefighter's rule is rooted in the law of premises liability and was originally recognized by the Illinois Supreme Court in Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182 (1892), overruled by Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881 (1960). In Gibson, as well as most other early cases adopting the rule, firefighters were considered to be licensees to whom landowners or occupiers owed no duty other than to warn of known, hidden dangers and to refrain from inflicting intentional or willful harm.

The case of Krauth v. Geller, 31 N.J. 270, 157 A.2d 129 (1960), marked a change in rationale from basing the firefighter's rule on premises liability to assumption of risk. In Krauth, the New Jersey Supreme Court found that “it is the fireman's business to deal with that very hazard and hence ... he cannot complain of negligence in the creation of the very occasion for his engagement.” 31 N.J. at 273–74, 157 A.2d 129 ; see also Fletcher v. Illinois Central Gulf Railroad Co., 679 S.W.2d 240, 243 (Ky.App.1984) (A firefighter “must be deemed to have assumed the personal risk inherent in dealing with the emergency which necessitated his presence.”). Consequently, the Krauth court found that “for that risk, the fireman should...