Heck v. Robey

• Decision Date: 22 December 1995
• Docket Number: No. 63S01-9503-CV-294,63S01-9503-CV-294
• Parties: Lawrence HECK and Peabody Coal Company, Appellants, v. James L. ROBEY and Carol S. Robey, Appellees.
• Court: Indiana Supreme Court

Page 498

659 N.E.2d 498

Lawrence HECK and Peabody Coal Company, Appellants, v. James L. ROBEY and Carol S. Robey, Appellees.

No. 63S01-9503-CV-294.

Supreme Court of Indiana.

Dec. 22, 1995.

Keith M. Wallace, Wright, Evans & Daly, Evansville, for Appellant Lawrence Heck.

William P. Wooden, Kevin C. Tyra, Wooden McLaughlin & Sterner, Indianapolis, for Appellant Peabody Coal Co.

Barbara S. Barrett, Barrett Law Office, P.C., Evansville, for Appellees.

ON PETITION TO TRANSFER

SELBY, Justice.

The question in this interlocutory appeal is whether Robey, a paramedic, may recover against Heck and Peabody Coal for injuries incurred during Robey's rescue of Heck. Heck and Peabody Coal moved for summary judgment, arguing among other things that the fireman's rule bars Robey from recovering. The trial court denied the motions for summary judgment, holding that genuine issues of material fact exist and that the fireman's rule does not extend to paramedics. The Court of Appeals accepted jurisdiction over this interlocutory appeal and reversed the trial court, holding that the fireman's rule applies and that Robey's claim was barred. We disagree and conclude that the fireman's rule does not, as a matter of law, bar Robey's recovery. Under the rescue doctrine Heck and Peabody Coal owed no duty to Robey except to abstain from positive wrongful acts. The trial court properly found that a genuine issue of material fact exists as to whether Heck engaged in positive wrongful acts, and thus did not err in rejecting Heck and Peabody Coal's argument that the fireman's rule bars Robey from recovering.

I. FACTS

James L. Robey (Robey) was a licensed paramedic and emergency medical technician employed by Warrick Emergency Medical Service. On January 16, 1990, Robey and his partner, Tracy Kavanaugh (Kavanaugh), responded to a "911" call to extricate Heck from a ditched vehicle at the Squaw Creek Mine and to provide emergency medical services. The Squaw Creek Mine is a joint venture owned in part by Peabody Coal. Lawrence Heck (Heck), a Squaw Creek Mine employee weighing nearly 200 pounds, had driven a company vehicle into a large, steep ditch while on the job. According to Robey, "[t]he truck fit upside down in the ditch. Not a whole lot of it was above the ditch." Robey alleges that Heck was intoxicated at the time of the accident, which Heck and Peabody Coal do not dispute for purposes of their motions and this appeal.

Robey was in charge of the rescue operation. When Robey and Kavanaugh could not get into Heck's vehicle, they summoned firefighters who removed the vehicle door with hydraulic tools to aid in Heck's rescue. Robey and Kavanaugh then removed Heck, placed him on a spine board, and carried him out of the ditch, up to the road. Heck allegedly flailed and kicked in a combative manner during the rescue, requiring Kavanaugh to hold Heck's arms and forcing Robey to do most of the pulling necessary to extricate Heck. Because of the position of the truck, both Robey and Kavanaugh were on their knees while trying to lift Heck. Heck was so combative that Robey called for a back-up ambulance and requested Valium from the hospital to calm Heck. Robey sustained back injuries for which he now brings this negligence action. Carol S. Robey, Robey's spouse, brings her negligence action for loss of Robey's services, society and consortium.

II. STANDARD OF REVIEW

Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. City of Evansville v. Moore (1990), Ind., 563 N.E.2d 113, 114. "[T]he contents of all pleadings, affidavits and testimony are liberally construed in the light most favorable to the non-moving party." Ayres v. Indian Heights Vol. Fire Dep't (1986), Ind., 493 N.E.2d 1229, 1234.

III. DISCUSSION

A. Overview

The fireman's rule provides that firemen responding in emergencies are owed only the duty of abstaining from positive wrongful acts. The Court of Appeals characterizes the fireman's rule as an exception to the rescue doctrine, which is discussed below. See generally Fox v. Hawkins (1992), Ind.App., 594 N.E.2d 493, 495-96. We first recognized the fireman's rule in 1893. Woodruff v. Bowen (1893), Ind., 136 Ind. 431, 34 N.E. 1113. In Woodruff, we held that a landowner owed no duty to a firefighter responding to a fire on the landowner's property except to abstain from positive wrongful acts. Woodruff, 136 Ind. at 442, 34 N.E. 1113. We established this narrow, limited duty to firefighters because of the impracticability and expense of keeping one's property in the safest of conditions at all times on the off-chance that a firefighter might be required to enter the property in an emergency. Thus, as in other jurisdictions, Indiana's fireman's rule was based originally upon premises liability and concerned only the legal question of duty. Since adopting Woodruff, we have not addressed the propriety of its application in cases not involving premises liability.

We now take the opportunity to examine how the fireman's rule has developed since we last addressed the rule over 100 years ago. Since that time, the Court of Appeals has expanded the fireman's rule, holding that the rule acts as a complete bar to recovery by public safety officers except in limited situations. In this case, the Court of Appeals did not address the applicability of the rescue doctrine, holding instead that the fireman's rule extends to paramedics and bars their recovery. This case presents the question of the duty owed to a professional rescuer, such as a paramedic, under the rescue doctrine, rather than the question of a property owner's duty to a professional rescuer injured by a defect in the property. We discuss the rescue doctrine and the fireman's rule in turn.

B. The Rescue Doctrine

Robey alleges that Heck and Peabody Coal owed him a duty based upon the rescue doctrine. ¹ This Court first recognized the rescue doctrine in Neal v. Home Builders, Inc. (1953), 232 Ind. 160, 111 N.E.2d 280, holding that " '[o]ne who has, through his negligence, endangered the safety of another may be held liable for injuries sustained by a third person in attempting to save such other from injury.' " ² Id. at 167, 111 N.E.2d 280 (quoting 65 C.J.S. Negligence § 63); see also Lambert v. Parrish (1986), Ind., 492 N.E.2d 289, 291. As Justice Cardozo eloquently explains

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and the probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer.

Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437 (1921).

Heck counters that he cannot be liable because Neal suggests that the rescue doctrine applies only when there are three parties: a tortfeasor, a party injured as a result of the tortfeasor's negligence, and a rescuer of the party injured. We agree with the Supreme Court of Missouri that [t]here is no logical basis for distinguishing between the situation in which recovery is sought against a defendant whose negligence imperiled some third party, and the situation in which recovery is sought against a defendant who negligently imperiled himself. A person with reasonable foresight who negligently imperils another or who negligently imperils himself will normally contemplate the probability of an attempted rescue, in the course of which the rescuer may sustain injury. Under the rescue doctrine, "the right of action depends ... upon the wrongfulness of the defendant's conduct in its tendency ... to cause the rescuer to take the risk involved in the attempted rescue. And ... a person who carelessly exposes himself to danger or who attempts to take his life in a place where others may be expected to be, does commit a wrongful act towards them in that it exposes them to a recognizable risk of injury."

Lowrey v. Horvath, 689 S.W.2d 625, 628 (Mo.1985) (quoting F. Bohlen, Studies in the Law of Torts, 569 n. 33 (1926)) (alterations in original); see also Usry v. Small, 103 Ga.App. 144, 118 S.E.2d 719, 720 (1961); Brugh v. Bigelow, 310 Mich. 74, 16 N.W.2d 668, 671 (1944); Provenzo v. Sam, 23 N.Y.2d 256, 296 N.Y.S.2d 322, 325, 244 N.E.2d 26, 28 (1968). Thus, a person who injures himself while acting in a careless or reckless manner may owe a duty to his or her own rescuer; the duty stems from an implied invitation to rescue.

We further agree with the Supreme Court of Missouri that

the 'rescue doctrine' under any conception of it contemplates a voluntary act by a rescuer who in an emergency attempts a 'rescue' prompted by a spontaneous, humane motive to save human life, and which 'rescue' the rescuer had no duty to attempt in the sense of a legal obligation or in the sense of a duty fastened on him by virtue of his employment.

Nastasio v. Cinnamon, 295 S.W.2d 117, 120 (Mo.1956); see also Ryder Truck Rental, Inc. v. Korte, 357 So.2d 228, 230 (Fla.App.1978); Buchanan v. Prickett & Son, Inc., 203 Neb. 684, 279 N.W.2d 855, 858 (1979). The rescue doctrine is designed to encourage and reward humanitarian acts.

It is undisputed that Robey responded to the accident in his capacity as a paramedic pursuant to a "911" call. Robey concedes that his actions were not voluntary, since he was "acting under a duty imposed on him as an employee...." (R. at 67-68). Both lack-of-voluntariness and the existence of this duty of employment would ordinarily suffice to defeat Robey's argument that Heck and Peabody Coal owed him a duty under the rescue doctrine. While we commend professional rescuers for their contributions to society, a professional rescue attempt stemming from a "911" call simply lacks the spontaneous and impulsive character that the rescue doctrine was designed to protect. ³

Moreover, we have held...