Bath Excavating & Const. Co. v. Wills, No. 91SC522

• Docket Nº: No. 91SC522
• Citation: 847 P.2d 1141
• Case Date: March 15, 1993
• Court: Supreme Court of Colorado

Page 1141

847 P.2d 1141 BATH EXCAVATING & CONSTRUCTION CO., and Hahn Plumbing &
Heating, Inc., Petitioners,
v.
Norman WILLS and Jeanie Wills, Respondents. No. 91SC522. Supreme Court of Colorado,
En Banc. March 15, 1993.

Page 1142

Clifton, Hook & Bovarnick, P.C., James R. Clifton, Diane M. Carmen, Denver, for petitioner Bath Excavating & Const. Co.

Rothgerber, Appel, Powers & Johnson, Franklin D. O'Loughlin, Patrick Q. Hustead, Denver, for petitioner Hahn Plumbing & Heating, Inc.

Williams & Trine, P.C., J. Conard Metcalf, Boulder, for respondents.

Justice ERICKSON delivered the Opinion of the Court.

In Wills v. Bath Excavating & Construction Co., 829 P.2d 405 (Colo.App.1991), the court of appeals reversed the trial court's order granting summary judgment in favor of the petitioners, Bath Excavating and Construction Company (Bath) and Hahn Plumbing and Heating, Inc. (Hahn), and remanded for trial. The court of appeals found that the trial court erred in concluding that the petitioners owed no common-law duty of care to Norman Wills, the respondent in this personal injury action, and in finding that a "fireman's rule" barred Wills from recovery. We granted certiorari and now affirm, and return this case to the court of appeals with directions to remand for further proceedings consistent with this opinion.

I

On November 4, 1986, Bath was searching for underground water pipes pursuant to the direction of Hahn, who had been employed to reroute a water service line on a vacant lot. While using heavy equipment, Bath ruptured a water main line owned by the City of Fort Collins. The rupture released a stream of high-pressure water that enlarged and filled the excavation.

Bath called the Fort Collins Water Department to shut off or repair the ruptured water main. A water department crew arrived, and after taking charge of the repair operation, increased the size of the excavation. Wills, a member of the crew, attempted to plug the leak. While standing

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in the excavation, Wills was injured when he was struck by sliding mud.

Wills filed an action against the petitioners, alleging that the negligence of the petitioners in severing the water main resulted in his injuries. ¹ The petitioners moved for summary judgment, asserting that they owed no legal duty to Wills in his capacity as a city employee. ² The trial court granted the motion based on its separate conclusions that a fireman's rule barred recovery by Wills and that the petitioners owed no common-law duty to Wills. The court of appeals reversed the trial court on both issues and remanded for trial. We granted certiorari and now affirm.

II

The petitioners claim that the trial court properly entered summary judgment because a fireman's rule is viable in Colorado and encompasses a city public works employee. Based on such a rule, the petitioners assert that they owed no legal duty to Wills. While we hold that Lunt v. Post Printing & Publishing Co., 48 Colo. 316, 110 P. 203 (1910), and subsequent Colorado case law do not foreclose recovery in this case, we decline to determine whether Colorado should judicially adopt a no-duty fireman's rule in this case.

A

In the early cases involving fire fighters who were injured on a landowner's premises while discharging their duty, courts typically analyzed the issue of liability based on the common-law status categories of entrants upon the property of another--invitee, licensee, or trespasser. See Kreski v. Modern Wholesale Elec. Supply Co., 429 Mich. 347, 415 N.W.2d at 178, 183 (1987); Krause v. United States Truck Co., 787 S.W.2d 708, 711 (Mo.1990). Courts generally held that fire fighters who entered onto premises in the discharge of their duties were licensees to whom the owner or occupant owed only a duty to refrain from willfully and wantonly injuring them. Kreski, 415 N.W.2d at 183; see generally Larry D. Scheafer, Annotation, Liability of Owner or Occupant of Premises to Fireman Coming Thereon in Discharge of His Duty, 11 A.L.R.4th 597, 601-02 (1982 & 1992 Supp.).

Later courts recognized, however, that fire fighters do not fit precisely within the common-law categories of invitee or licensee. See Krause, 787 S.W.2d 708; Krauth v. Geller, 31 N.J. 270, 157 A.2d 129, 131 (1960). ³ Because of the inherent limitations of accurately fitting fire fighters into traditional concepts of landowner liability, courts began to adopt a no-duty "fireman's rule." Krauth, 157 A.2d at 131. ⁴ Courts recognized that because fire fighters are trained and paid to provide services, the law imposes no duty on the landowner to exercise reasonable care to prevent the

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event or actions that creates the need for the fire fighter's services. See Krauth, 157 A.2d at 131 (stating that "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"); see, e.g., Farmer v. Union Oil Co., 75 Cal.App.3d 42, 141 Cal.Rptr. 848 (1977); Kreski, 415 N.W.2d at 178; Krause, 787 S.W.2d at 711-12.

In fact, the modern-day fireman's rule is misnamed. Although the "no-duty" fireman's rule originally barred tort claims by fire fighters who were injured while fighting a fire against persons whose negligence caused the fire, it has been expanded to include police officers. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 61, at 430-31 (5th ed. 1984); see, e.g., Furstein v. Hill, 218 Conn. 610, 590 A.2d 939, 945 (1991) (adopting fireman's rule that encompasses police officers); Berko v. Freda, 93 N.J. 81, 459 A.2d 663 (1983) (extending fireman's rule to police officers). ⁵ The fireman's rule only applies to bar suit by a fire fighter or a police officer injured in the performance of his or her duty. Rosa v. Dunkin' Donuts, 122 N.J. 66, 583 A.2d 1129, 1134 (1991).

In adopting a fireman's rule, courts have occasionally used the language "safety officers," while simultaneously indicating that the term only applies to fire fighters and police officers. See, e.g., Furstein, 590 A.2d at 943-45; Pottebaum v. Hinds, 347 N.W.2d 642, 645 (Iowa 1984); Kreski, 415 N.W.2d at 189. However, to date, no jurisdiction has adopted a "public safety worker rule." ⁶

The no-duty fireman's rule is grounded in primary assumption of the risk, public policy considerations, or a combination of both factors. See, e.g., Carpenter v. O'Day, 562 A.2d 595 (Del.Super.), aff'd, 553 A.2d 638 (Del.1988); Winn v. Frasher, 116 Idaho 500, 777 P.2d 722 (1989); Kreski, 415 N.W.2d at 183; Krause, 787 S.W.2d at 711-12. One rationale offered to support the fireman's rule suggests that no duty is owed because safety officers are employed, trained, and paid to confront dangerous situations in order to protect the public and undertake their profession with the knowledge that their personal safety is at risk. Banyai v. Arruda, 799 P.2d 441, 443 (Colo.App.1990) (citing Kreski, 415 N.W.2d at 178).

The court of appeals concluded that Colorado adopted a fireman's rule in Lunt, 48 Colo. 316, 110 P. 203, but that we effectively rejected the fireman's rule in Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971). See Wills, 829 P.2d at 408-09. To determine whether recovery by Wills is foreclosed in this case, we review Lunt and Mile High Fence Co.

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B

In Lunt, a fire fighter, answering an alarm to extinguish what mistakenly appeared to be a fire, inhaled nitric acid fumes and subsequently died. Lunt, 48 Colo. at 318-19, 110 P. at 203-04. The wife of the deceased fire fighter brought a negligence action against the landowner, alleging that by calling the fire department, the landowner invited the fire fighter onto the premises and was liable for not warning the fire fighter of the unsafe condition that existed thereon. Id. at 322, 110 P. at 205. The question presented for our review in Lunt concerned the common-law status of a fire fighter who entered onto a landowner's premises in the discharge of his duty. Id. at 323, 110 P. at 205.

Lunt addressed the common-law classifications of licensees and invitees and the respective duties owed by a landowner. Following contemporary commentators and the decisions of a number of other jurisdictions, Lunt classified a fire fighter as a licensee. Id. at 323-24, 110 P. at 205-06. Accordingly, Lunt resolved the issue by concluding that the duty owed by a landowner to a licensee did not include warning of hidden dangers. Id. at 329-30, 110 P. at 207 (citing Watson v. Manitou & Pikes Peak Ry. Co., 41 Colo. 138, 92 P. 17 (1907)). Lunt did not adopt a per se rule that landowners owed no duty to a fire fighter but merely held that a landowner owed a fire fighter the duty owed to a licensee. ⁷

Until 1971, a landowner's liability in Colorado continued to be based exclusively on whether the injured party was classified as an invitee, licensee, or trespasser, and on the corresponding duties owed to each. However, the common-law scheme governing landowner's liability was abolished by Mile High Fence Co., 175 Colo. 537, 489 P.2d 308.

In Mile High Fence Co., a police officer brought a negligence action against a fence company. While on patrol, the police officer was injured when he stepped into a post hole that the fence company had dug on private property. Mile High Fence Co. held that classification of an injured party as a trespasser, licensee or invitee was not determinative of the degree of care owed by a landowner or occupant. Id. at 548, 489 P.2d at 314. In specifically overruling Lunt, Mile High Fence Co. concluded that while the facts giving rise to a person's status were relevant to the issue of liability, they were only one factor. Id. at 548, 489 P.2d at 314-15. Accordingly, Mile High Fence Co. affirmed the trial court's judgment in favor of the police officer.

In 1986, the General Assembly enacted section 13-21-115, 6A C.R.S. (1986), to statutorily govern premises liability and to resurrect the common-law...