Christensen v. Murphy

• Citation: 644 P.2d 627,57 Or.App. 330
• Decision Date: 12 May 1982
• Docket Number: No. 14561,14561
• Parties: Wendy CHRISTENSEN, Personal Representative of the Estate of John Paul Christensen, Appellant, v. Sherrie MURPHY, Respondent. ; CA A20590.
• Court: Court of Appeals of Oregon

Page 627

644 P.2d 627

57 Or.App. 330

Wendy CHRISTENSEN, Personal Representative of the Estate of John Paul Christensen, Appellant, v. Sherrie MURPHY, Respondent.

No. 14561; CA A20590.

Court of Appeals of Oregon.

Argued and Submitted Nov. 18, 1981.

Decided May 12, 1982.

W. Eugene Hallman, Pendleton, argued the cause for appellant. With him on the briefs were Mautz & Hallman, Pendleton, and Pippin & Bocci, Portland.

Douglass M. Hamilton, Portland, argued the cause for respondent. With him on the brief were I. Franklin Hunsaker, and Bullivant, Wright, Leedy, Johnson, Pendergrass & Hoffman, Portland.

Before GILLETTE, P. J., JOSEPH, C. J., and ROBERTS, J. Pro Tem.

GILLETTE, Presiding Judge.

Plaintiff, Wendy Christensen, acting as personal representative of the estate of her deceased husband, John Christensen, appeals from a trial court's decision granting summary judgment in favor of defendant, Sherrie Murphy, in this wrongful death action. The issue is whether the trial court was correct in granting defendant's motion for summary judgment on the ground that the "fireman's rule" bars recovery by the plaintiff. We affirm.

The unfortunate facts giving rise to this case may be briefly summarized. On February 16, 1976, Daryl Thompson induced defendant, the night matron at the Northwest Regional Youth Center in Pendleton, Oregon, to let him into the facility. He then struck her and caused her to release Jeanne Nobel, a minor in custody in the detention center. Thompson and Nobel fled to a car a short distance away.

Thompson had difficulty starting the car, and Pendleton Police Officer John Christensen stopped to assist. Christensen asked Nobel to get into his police car, presumably because it was cold, and prepared to "jump start" Thompson's car. Either immediately before or after she entered the police car, Nobel began to flee, shouting to Thompson to "run." Christensen ran after Nobel and tackled her at a point about 20 yards from the car. Thompson then ran after Christensen and stabbed him. Christensen died from the wound. ¹

The so-called "fireman's rule" was first adopted in Oregon in Spencer v. B. P. John Furniture Corp., 255 Or. 359, 467 P.2d 429 (1970). There the plaintiff's decedent, a fireman, was killed while fighting a fire in defendant's furniture factory. The plaintiff brought a wrongful death action alleging that the defendant negligently started the fire and had allowed dust to accumulate on the premises, which resulted in an explosion during the fire, causing the decedent's death. The defendant successfully demurred to the plaintiff's complaint. The Supreme Court affirmed, adopting the "fireman's rule."

The court held that a fireman injured in firefighting does not have a cause of action against a property owner whose negligence caused the fire, unless the danger that caused the injury was an "unusual, serious, hidden danger of a totally unexpected kind." 255 Or. at 365, 467 P.2d 429. The court justified adoption of the rule as follows:

"Whatever choice a fireman makes about those dangers to which he will submit himself, such choice is necessarily made at the time he becomes a fireman. When he appears upon the scene of a fire and realizes that the owner or possessor has created or permitted a situation which has enhanced the normal risks to be expected in fighting a fire of the kind involved, he does not have the privilege of refusing to fight the fire. He has to fight it anyway. When he becomes a fireman, he does not undertake to fight only ordinarily dangerous fires which have not been started nor been made more dangerous by someone's lack of care. He undertakes to fight all fires. As a result, for the purpose of deciding if any duty is owed to him by a property owner or possessor, it is impossible to distinguish situations solely on the basis of their being more than normally dangerous or their being made that way by someone's lack of care."

Recently, this court held that the "fireman's rule" applies to police officers. In Cullivan v. Leston, 43 Or.App. 361, 602 P.2d 1121 (1980), the plaintiff, an on-duty police officer, was injured while attempting to break up a fight in a tavern when he was assaulted by friends of one of the parties involved. He sued the proprietor of the tavern and the persons who assaulted him, claiming that the proprietor was liable on a common law negligence theory for allegedly serving alcohol to the persons who assaulted him when they were visibly intoxicated. The tavern owner's motion for summary judgment was granted on the basis of the "fireman's rule." We stated:

"Here, plaintiff was told to investigate the fight in a tavern, and knew that a normal risk of carrying out his official duties was that he would walk into a tavern where a fight was in progress and that he might be injured by the participants. There was no 'unusual, serious, hidden danger of a totally unexpected kind.' " 43 Or.App. 364, 602 P.2d 1121.

Both Oregon cases applying the rule have involved the potential liability of a landowner for an injury that occurred on his premises. ² The trial court here expanded the rule to bar an action for wrongful death of a police officer whose claim was not based upon any premises liability. Considering the rationale for the rule-that police officers, employed to encounter situations frequently caused by someone's negligence, should not be entitled to seek recovery for resulting injuries unless the danger involved is totally unexpected-we conclude that the trial court's application of the rule to a situation not involving "premises" was entirely appropriate.

Appellant further argues that, even if the rule is...