Buchanan v. Prickett & Son, Inc.

• Decision Date: 12 June 1979
• Docket Number: No. 42246,42246
• Citation: 279 N.W.2d 855,203 Neb. 684
• Parties: William G. BUCHANAN, Appellant, v. PRICKETT & SON, INC. et al., Appellees.
• Court: Nebraska Supreme Court

Page 855

279 N.W.2d 855

203 Neb. 684

William G. BUCHANAN, Appellant, v. PRICKETT & SON, INC. et al., Appellees.

No. 42246.

Supreme Court of Nebraska.

June 12, 1979.

Syllabus by the Court

1. Firemen: Negligence. The fireman's role negates liability to firemen by one whose negligence causes or contributes to a fire which in turn causes injury or death of a fireman.

2. Rescue Doctrine: Negligence. The rescue doctrine contemplates a voluntary act by one who, in an emergency and prompted by spontaneous human motives to save human life, attempts a rescue which he had no duty to attempt by virtue of the legal obligation or duty fastened on him by his employment. It is not contributory negligence for a volunteer to expose himself to danger in a reasonable effort to save a third person or the property of a third person from harm. The extent of the risk which the volunteer is justified in assuming under the circumstances increases in proportion to the imminence of the danger and the value of the advantage to be realized from meeting the danger and attempting to remove or eliminate the hazard, i. e., the less the danger to the third party, the less risk the volunteer is justified in taking.

3. Firemen: Negligence. The underlying basis of the fireman's rule is that the ordinary risks which a fireman encounters in the performance of his duty in fighting fires and protecting life and property are those which he has assumed a duty to perform and to which he has assumed the risk in a "primary" sense; that is, the risk is one which the fireman has engaged to encounter by virtue of his employment and one which it is his duty to perform and thus the person who negligently caused the fire has not breached a duty owed the fireman. In the absence of any statute or ordinance prescribing a duty on the part of the owner or possessor of the property to members of a public fire department, the owner is not liable for such injuries to firemen except those proximately resulting from willful or wanton negligence or a designed injury, except in certain cases where there may be the duty to warn of hidden danger or peril known to the owner or occupant but unknown to or unobservable by the fireman in the exercise of ordinary care.

William J. Ross of Ross, Schroeder & Fritzler, Kearney, for appellant.

Knudsen, Berkheimer, Endacott & Beam, Lincoln, for appellees.

Heard before BOSLAUGH, McCOWN, CLINTON, and WHITE, JJ., and TESAR, District Judge.

CLINTON, Justice.

This is an action for personal injuries suffered by the plaintiff, a member of the Elm Creek volunteer fire department, when he, along with other members of the department, responded to a call to the scene of a collision between two motor vehicles, one of which was a gasoline tanker. After plaintiff arrived at the scene and while he was in the process of trying to extricate the transport driver from the tractor cab in which he was pinned, an explosion and fire occurred and the plaintiff was badly burned. The defendants are the persons owners, operators, or lessees of the second vehicle whose negligence was allegedly the cause of the collision. The primary legal question involved in this case is whether the plaintiff's claimed right of recovery is barred by the operation of the so-called "fireman's rule," or whether the "rescue doctrine" should apply and the plaintiff be permitted to recover if there be proof that the negligence of all or some of the defendants was a proximate cause of the collision, the fire, and the plaintiff's injuries. The defendants filed a motion for summary judgment which was granted and the plaintiff has appealed to this court. We affirm.

The alleged facts of the collision as set forth in the petition of the plaintiff are these. On July 8, 1974, the defendants' truck was traveling westward on Interstate Highway No. 80 and entered the exit ramp on the northeast quadrant of the Elm Creek interchange and stopped for a stop sign at the west end of the ramp where it intersects U. S. Highway No. 183 which runs north and south over the interstate highway. At the time the defendants' truck was stopped at the traffic sign, the loaded tanker, operated by Dale L. Damon, was moving north on highway 183 toward the junction of the ramp and the highway. As the tanker neared the junction, the defendants' truck drove onto highway 183 and made a left turn to go south on that highway. Damon was unable to avoid a collision with defendants' truck and went down the embankment on the east side of highway 183, and the tanker overturned.

The following facts are established by the deposition of the plaintiff and are undisputed. The plaintiff was, at all times here involved, a duly elected and appointed member of the Elm Creek volunteer fire department. The job of the department and its members was to fight fires and do rescue work. The plaintiff received no compensation for his services as a volunteer fireman. When, on the occasion here involved, he and the other volunteer firemen, together with firefighting equipment, arrived at the scene of the collision, the plaintiff observed that Damon was pinned in the tractor with one leg trapped between the seat and the floor. At the time, gasoline was leaking from the tanker and running through the cab and onto the ground where it was forming pools of gasoline. As the day was hot, the gasoline was vaporizing in considerable volume and, when the plaintiff reached Damon, he found it difficult to breathe. He was acutely concerned about the danger of fire. Because of the fumes, he occasionally had to leave briefly and then renew his attempts to free Damon. During his second or third effort, the explosion and fire occurred. Damon was burned to death and the plaintiff was severely burned. The plaintiff has received and perhaps is still receiving workmen's compensation benefits as provided by section 48-115, R.R.S.1943, as amended. He has suffered additional damages by reason of pain and suffering and time lost from his regular employment as an electrical lineman and a moonlighting job in a feed mill. To this latter employment he has been unable to return.

The fireman's rule, although not referred to by that name in this jurisdiction, has been applied in Wax v. Co-Operative Refinery Assn., 154 Neb. 805, 49 N.W.2d 707; and Fentress v. Co-Operative Refinery Assn., 149 Neb. 355, 31 N.W.2d 225. The fireman's rule negates liability to firemen by one whose negligence causes or contributes to the fire which in turn causes injury or death of the fireman. Giorgi v. Pacific Gas & Elec. Co., 266 Cal.App.2d 355, 72 Cal.Rptr. 119. The rescue rule as applied in Nebraska has been stated thus: It is not contributory negligence for a plaintiff to expose himself to danger in a reasonable effort to save a third person or the property of a third person from harm. The extent of the risk which the volunteer is justified in assuming under the circumstances increases in proportion to the imminence of the danger and the value of the advantage to be realized from meeting the danger and attempting to remove or eliminate the hazard; that is, the less the danger to the third party, the less the risk the volunteer is justified in taking. Wolfinger v. Shaw, 138 Neb. 229, 292 N.W. 731. The rescue doctrine contemplates a voluntary act by one who, in an emergency and prompted by spontaneous human motives to save human life, attempts a rescue which he had no duty to attempt by virtue of a legal obligation or duty fastened on him by his employment. Nastasio v. Cinnamon, 295 S.W.2d 117 (Mo., 1956).

The principal point which the plaintiff urges is that, because a volunteer fireman is unpaid and because in this instance the plaintiff was not fighting a fire but attempting to save a human life, the rescue rule should apply to the exclusion of the fireman's rule.

The rationale of the fireman's rule varies somewhat from jurisdiction to jurisdiction. In Nebraska the rule has been stated at least twice. In Fentress v. Co-Operative Refinery Assn., supra,...