Calvert v. Garvey Elevators, Inc.

• Decision Date: 26 January 1985
• Docket Number: No. 56630,56630
• Citation: 236 Kan. 570,694 P.2d 433
• Parties: Donald L. CALVERT, Appellant, v. GARVEY ELEVATORS, INC. a/k/a Garvey Elevators, Inc.--Wallingford Division, a corporation; and Chevron Chemical Company, a corporation, Appellees.
• Court: Kansas Supreme Court

Page 433

694 P.2d 433

236 Kan. 570

Donald L. CALVERT, Appellant, v. GARVEY ELEVATORS, INC. a/k/a Garvey Elevators Inc.--Wallingford Division, a corporation; and Chevron Chemical Company, a corporation Appellees.

No. 56630.

Supreme Court of Kansas.

Jan. 26, 1985.

Syllabus by the Court

1. It is a public policy of the State of Kansas that a fire fighter cannot recover for injuries caused by the very situation that initially required his presence in an official capacity and subjected the fire fighter to harm.

2. It is not the public policy to bar a fire fighter from recovery for negligence or intentional acts of misconduct by a third party, nor is the fire fighter barred from recovery if the individual responsible for the fire fighter's presence engages in subsequent acts of negligence or misconduct upon the arrival of the fire fighter at the scene.

3. Public policy would not bar a fire fighter from recovery if an individual fails to warn of known, hidden dangers on his premises or for misrepresenting the nature of the hazard where such misconduct causes the injury to the fire fighter.

4. A fire fighter only assumes hazards which are known and can be reasonably anticipated at the site of the fire and are a part of fire fighting.

Frank McMaster, of McMaster & McMaster, Wichita, argued the cause, and D. Lee McMaster and M. Duane Coyle, Wichita, of the same firm, were on the brief for appellant.

Richard L. Honeyman, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause, and Forrect James Robinson, Jr., Wichita, of the same firm, was with him on the brief for appellee Garvey Elevators, Inc.

Ron Campbell, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause and was on the brief for appellee Chevron Chemical Company.

LOCKETT, Justice:

Donald L. Calvert, a fire fighter, filed a petition in Sedgwick County District Court seeking damages for injuries he suffered while responding to the scene of an anhydrous ammonia leak. Defendants Chevron Chemical Company and Garvey Elevators, Inc. moved for summary judgment, which the district court granted. Calvert appeals.

On August 1, 1980, Calvert, a captain with the Great Bend Fire Department (Department), whose responsibilities included both fire fighting and rescue work, was on duty. The Department received a call asking for assistance with an ammonia leak. The leak occurred at the Garvey Elevator complex in Seward. A hose on a Garvey applicator tank became disengaged while the tank was being filled with anhydrous ammonia from a storage tank owned by Chevron. By virtue of an agreement to provide "mutual aid" assistance to Seward, the Department responded.

Calvert was in charge of the ambulance dispatched to the scene. Calvert, a licensed emergency medical technician, had attended numerous seminars at which the dangers of anhydrous ammonia were explained. Prior to departing to the scene at Seward, Calvert had been provided with special protective equipment. When the Department ambulance arrived at the complex, vapors were surrounding the area around the leak. The fire fighters could see a man down in the area. There was little chance that the individual was alive since he had been in the area of the vapors for a period of 30 to 45 minutes. Calvert and a fellow fire fighter, Shelby Jones, put on Scott Airpacks and protective clothing and proceeded into the "vapor" area to retrieve the downed man.

After retrieving the victim from the vapor area, Calvert removed his mask to get a deep breath. He immediately experienced a strong smell of ammonia. Later Calvert was placed in the ambulance when he became hot and sweaty. Calvert was taken to the Great Bend Hospital and examined by a doctor. He was released from the Emergency Room and returned home, but later was required to check into the hospital and was diagnosed as having suffered a heart attack. The plaintiff filed for and obtained workers' compensation benefits as a result of his injuries on the job.

The district court determined that the Fireman's Rule applied, and that plaintiff was discharging his duties as a professional fire fighter at the time of his injury. Based upon the Fireman's Rule, the defendants were not liable to the plaintiff. In addition, the district court also found that Calvert, as a fire fighter, was a licensee at the time of the accident and, therefore, defendants owed Calvert only the duty to refrain from willfully and wantonly injuring him.

Since there is no controversy as to the facts in this case, we are limited to considering questions of law. The appeal in the present case involves an issue of first impression in Kansas. The question is whether Kansas should adopt the "Fireman's Rule" which provides that a fire fighter who enters upon the premises of another in the discharge of his duty may not maintain a cause of action against the individual for negligence in creating a risk which necessitated a fire fighter's presence and resulted in injury to the fire fighter. The Fireman's Rule holds that an owner or occupier of land owes no duty to a fire fighter to keep the premises in a reasonably safe condition. The courts have justified this rule on the basis of public policy, that the fire fighter cannot complain of negligence in the creation of the very occasion for his employment. He assumes the risks normally associated with the fire fighting when he enters that employment. We must decide whether Kansas will join the general trend and adopt the Fireman's Rule limiting the liability for negligent acts or wrongful conduct resulting in on-the-job injuries to fire fighters.

The term "Fireman's Rule" is a common-law doctrine and a product of various legal theories resulting in several different rules. Almost all jurisdictions, when confronted with this issue, have adopted some form of the Fireman's Rule. The majority of jurisdictions limit, in one way or another, the extent of a negligent actor's liability to a fire fighter injured while performing his official duties.

Negligence is the theory of recovery most frequently asserted by fire fighters in actions against owners and occupants of premises for injuries received while discharging their duties. Normally it has been held that, apart from active negligence, i.e., the failure to warn of hidden dangers and statutory violations, the owner or occupant of premises owes to a fire fighter either no duty of care to keep the premises safe or only the duty to refrain from inflicting willful or wanton injuries upon him.

A number of jurisdictions take the view that a fire fighter who enters upon the premises in the line of duty has the status of a licensee. Annot., 11 A.L.R.4th 597. See also Price v. Morgan, 436 So.2d 1116 (Fla.Dist.App.1983); Buchanan v. Prickett & Son, Inc., 203 Neb. 684, 279 N.W.2d 855 (1979); Baxley v. Williams Construction Co., 98 Ga.App. 662, 106 S.E.2d 799 (1958). As a licensee there is no duty upon the owner or occupant except to refrain from injuring the licensee willfully or wantonly. In Kansas, a licensee is one who enters or remains on the premises of another by virtue of either the express or implied consent of the possessor of the premises, and, therefore, is not a trespasser thereon. The possessor of the premises on which a licensee intrudes owes the licensee the duty to refrain from willfully or wantonly injuring him. Britt v. Allen County Community Jr. College, 230 Kan. 502, 638 P.2d 914 (1982).

Other jurisdictions have expressly rejected the licensee concept. Some of the jurisdictions have determined that fire fighters should not be treated as licensees but as invitees. See Fancil v. Q.S.E. Foods, Inc., 60 Ill.2d 552, 328 N.E.2d 538 (1975); Walsh, et al. v. Madison Park Properties, Ltd., 102 N.J.Super. 134, 245 A.2d 512 (1968). An invitee is one who enters or remains on the premises for the benefit of the inviter, or for the mutual benefit and advantage of both the inviter and invitee. The possessor of the premises on which an invitee enters owes a higher degree of care to the invitee, that of reasonable or ordinary care for the invitee's safety. A possessor has the duty to protect and warn an invitee of a danger that may be reasonably anticipated.

Other jurisdictions take the view that a fire fighter entering upon premises in the discharge of his duties is not classified either as a licensee or invitee but occupies the status of sui generis. See Krauth v. Israel Geller and Buckingham Homes, Inc., 31 N.J. 270, 157 A.2d 129 (1960) (Krauth ); Beedenbender v. Midtown Properties, 164 N.Y.S.2d 276, 4 A.D.2d 276 (1957). When classified as sui generis, one of that class is privileged to enter the land for a public purpose irrespective of consent. The occupier of the premises owes a similar duty to one so...