Gray v. Russell, 75449

• Decision Date: 25 May 1993
• Docket Number: No. 75449,75449
• Citation: 853 S.W.2d 928
• Parties: Roy G. GRAY and Martha Gray, Appellants, v. Kenneth RUSSELL and Helen Russell, d/b/a Russell's Variety Store, Respondents.
• Court: Missouri Supreme Court

Page 928

853 S.W.2d 928

Roy G. GRAY and Martha Gray, Appellants, v. Kenneth RUSSELL and Helen Russell, d/b/a Russell's Variety Store, Respondents.

No. 75449.

Supreme Court of Missouri En Banc.

May 25, 1993.

Robert B. Reeser, Jr., Sedalia, for appellants.

Joseph A. Sherman, Steven F. Coronado, Kansas City, for respondents.

Jeffrey P. Ray, Kansas City, for amicus curiae MODL.

P. Kevin Blackwell, Independence, for amicus curiae MATA.

PRICE, Judge.

In this case we revisit the "firefighter's rule," which, under certain circumstances, precludes tort recovery by public safety officers who are injured in the line of duty. Because the firefighter's rule is an exception to the rescue doctrine, it does not bar an action for injuries suffered by a police officer while performing routine duties in a nonemergency situation when those injuries are caused by a landowner's ordinary negligence. We reverse the judgment in favor of respondents and remand.

I.

On review of a defendant's motion for summary judgment, this Court views the record in the light most favorable to the plaintiff, according to plaintiff all reasonable inferences that may be drawn from the evidence. Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed in connection with the motion, demonstrate that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Rule 74.04(c).

The facts are not in dispute. Appellant Roy Gray was a police officer employed by the City of Windsor, Missouri. His duties included checking the buildings in the city's business district pursuant to department procedures. On the evening of September 30, 1988, Gray performed a routine inspection of the building owned by respondents. After checking the loading dock behind the building, he started to descend the wooden steps at the dock's west end. The stairs collapsed and he was badly hurt. At no time pertinent to the suit are facts alleged that would constitute an emergency or rescue situation.

Appellants Roy Gray and his wife sued respondents for negligence and loss of consortium, alleging that the stairs were not reasonably safe, that respondents knew or should have known of this condition, and that their failure to properly maintain the stairs led to Roy Gray's injuries. Respondents' motion for summary judgment was granted on the grounds that the firefighter's rule bars this suit.

II.

The firefighter's rule has been discussed in a number of decisions by this Court. Its initial appearance was in the companion cases of Anderson v. Cinnamon, 365 Mo. 304, 282 S.W.2d 445 (1955), and Nastasio v. Cinnamon, 295 S.W.2d 117 (Mo.1956). These decisions involved an incident in which a firefighter and a volunteer firefighter, respectively, fell through a third-floor porch while battling a blaze. The owner of the building did not warn the firefighters that the porch was unsafe although he had knowledge of the danger and an opportunity to warn them.

Anderson analyzed the owner's duty to the firefighters in the context of the traditional rules of premises liability. The Court decided that firefighters have the same status as licensees, even though they do not need the possessor's permission in order to enter the property. 282 S.W.2d at 446-7. This classification was fatal to the suit, as the Court noted that "a possessor owes no duty to licensees as to maintenance". Id. at 447. Consequently, the owner was absolved of liability for his failure to warn the firefighters to leave the porch after he knew of their presence there. Id. at 451. Nastasio extended the Anderson rule to the volunteer firefighter. 295 S.W.2d at 121.

On their face, Anderson and Nastasio appear dispositive of appellants' cause of action. But the Anderson definition of a possessor's duty to licensees was discarded in Wells v. Goforth, 443 S.W.2d 155 (Mo. banc 1969). There, the Court "concluded that the existing law is outmoded and should be changed." Id. at 158. In its place, the Court adopted the rule set forth in Restatement, Law of Torts, First § 342 (1934). That section holds a possessor of land liable for bodily harm caused to licensees by a nonobvious natural or artificial condition on the land, if the possessor knows of the condition, realizes it poses an unreasonable risk of harm, and fails to either remedy the condition or warn licensees of the risk. ¹ Accordingly, the law no longer holds the safety of gratuitous licensees in disregard. ²

Subsequent opinions of this Court have dealt with the firefighter's rule from a more general perspective. In Phillips v. Hallmark Cards, Inc., 722 S.W.2d 86 (Mo. banc 1986), the Court discussed the rule's development and noted arguments advanced by other courts as support for its continued viability, such as assumption of the risk and public policy considerations. ³ Id. at 88. The Court declined the plaintiff's invitation to abandon the rule, id. at 89, but no statement of the rule itself appears in the opinion. The rule was restated, however, in Krause v. U.S. Truck Co., Inc., 787 S.W.2d 708, 711 (Mo. banc 1990), as follows:

The rule provides that a fireman brought in contact with an emergency situation solely by reason of his status as a fireman who is injured while performing fireman's duties may not recover against the person whose ordinary negligence created the emergency.

A careful reading of this statement shows why the conclusion that appellants' petition is barred by the rule is erroneous. Quite simply, the firefighter's rule applies only in emergencies. ⁴ Thus, appellants' claims fall outside the scope of the rule because Roy Gray was injured during a routine building check and not while responding to any emergency. The reason for this particular limitation is that the firefighter's rule originated as an exception to the "rescue doctrine," as noted in Nastasio, 295 S.W.2d at 120.

Krause discusses the policy considerations behind the development of the rescue doctrine as a "legal shorthand" for proximate cause, and of the firefighter's rule as an exception thereto, most of which need not be repeated here. Essentially, the rescue doctrine embodies a policy choice by courts to deem rescue attempts to be foreseeable for purposes of tort recovery because, in Cardozo's memorable phrase, "Danger invites rescue." Krause, 787 S.W.2d at 710-1, citing Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437, 437 (1921). The doctrine ensures that the issue of proximate cause will not hinder an injured rescuer's attempt to recover from the original tortfeasor. Thus, "the same negligence which imperils a victim is also proximate negligence as to the nonwanton rescuer." Nastasio, 295 S.W.2d at 120.

The benefits of the rescue doctrine, however, are withheld from public safety officers who are injured in the line of duty while performing a rescue, again on grounds of public policy. ⁵ Such "professional rescuers" cannot recover for injuries attributable to the negligence that required their assistance, because their position specifically requires them to confront these hazards on behalf of the public. ⁶ As stated in Krause:

Policemen and firemen have exceptional responsibilities. At the...