Heck v. Robey

• Decision Date: 17 March 1994
• Docket Number: No. 63A01-9309-CV-285,63A01-9309-CV-285
• Citation: 630 N.E.2d 1361
• Parties: Lawrence HECK and Peabody Coal Company, Appellants-Defendants, v. James L. ROBEY and Carol S. Robey, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 1361

630 N.E.2d 1361

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

No. 63A01-9309-CV-285.

Court of Appeals of Indiana First District.

March 17, 1994.

Keith M. Wallace, Wright, Evans & Daly, Evansville, for appellant-defendant Lawrence Heck.

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

Barbara S. Barrett, Gerling Law Offices, P.C., Evansville, for appellees-plaintiffs.

ROBERTSON, Judge.

Lawrence Heck and Peabody Coal Company bring this interlocutory appeal after the trial court denied their motions for summary judgment. The trial court determined that Indiana does not extend the "fireman's rule" to a paramedic such as James L. Robey. We reverse.

Robey was a licensed paramedic who worked for Warrick Emergency Services, a part of Warrick County Hospital, Inc., which was under contract with the Warrick County Commissioners to provide emergency and paramedic medical services in Warrick County, Indiana. On January 16, 1990, Heck, an employee of Peabody Coal, lost control of a company pickup truck on mine property and wrecked the truck upside down in a ditch along side the mine road.

Robey and his partner responded to the 911 call for the incident, as usual, through the fire department. Robey was in charge at the scene and summoned some firefighters to help extricate Heck from the truck. As he helped lift Heck from the ditch, Robey sustained a back injury. Robey had detected the odor of alcohol on Heck, and a subsequent test measured Heck's blood alcohol content above the legal limit for operating a motor vehicle. Robey and his wife filed suit in negligence for the injury to his back.

Heck and Peabody Coal subsequently filed motions for summary judgment based on the "fireman's rule." The trial court denied the motions because public policy rationale "will dictate that Indiana will decline to extend the 'Fireman's Rule' to a paramedic or EMT ..."

A summary judgment is proper only where there is no genuine issue about any 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. Any doubt about the existence of a factual issue should be resolved against the movant, with all properly asserted facts and reasonable inferences construed in favor of the nonmovant. Id. An order denying a motion for summary judgment is generally not an appealable interlocutory order; but, where the parties present no conflict in the operative facts and agree that there is no genuine issue of material fact necessitating resolution and where the defendant raises defenses within its motion for summary judgment which, if applicable, would entitle it to a judgment as a matter of law, the requisites of the rule which allows appeals from interlocutory orders are met. Standard Mutual Ins. Co. v. Boyd (1983), Ind.App., 452 N.E.2d 1074. On review of a ruling on summary judgment, this Court applies the same standard applicable in the trial court. Webb v. Jarvis (1991), Ind., 575 N.E.2d 992, 994. The appellants must persuade this court that the determination below was erroneous. Indiana Dept. of Revenue v. Caylor-Nickel Clinic (1992), Ind., 587 N.E.2d 1311, 1313.

In Indiana, one who has, through his negligence, endangered the safety of another may be held liable for the injuries sustained by a third person in attempting to save such other from injury. Lambert v. Parrish (1986), Ind., 492 N.E.2d 289, 291 (quoting Neal v. Home Builders, Inc. (1953), 232 Ind. 160, 167, 111 N.E.2d 280, 284 (quoting 65 C.J.S., Negligence)). This is known as the "rescue doctrine." See id. The "fireman's rule," however, is said to create an exception to the liability imposed by the rescue doctrine. Koehn v. Devereaux (1986), Ind.App., 495 N.E.2d 211, 215. The fireman's rule rests on three distinct but related theoretical pedestals: the law of premises liability, the defense of incurred risk, and the concerns of public policy. Fox v. Hawkins (1992), Ind.App., 594 N.E.2d 493, 495.

THE ORIGIN AND EXTENSION OF THE RULE

Our supreme court recognized the first ground for the fireman's rule one hundred years ago. See Woodruff v. Bowen (1893), 136 Ind. 431, 34 N.E. 1113. A fireman enters the premises under a license given by law for the purpose of extinguishing a fire therein at the time. Id. In such a situation, the "licensor owes to the mere licensee [the fireman] no duty except that of abstaining from any positive wrongful act which may result in his injury ... and ... the licensee takes all the risks as to the safe condition of the premises upon which he enters." Id. at 442, 34 N.E. at 1117. This Court followed and upheld this basis for the Rule in Pallikan v. Mark (1975), 163 Ind.App. 178, 322 N.E.2d 398.

This Court, however, eventually applied the fireman's rule to a case which did not involve the law of premises liability. Without citation to authority, we stated:

The [fireman's] rule basically provides that professionals, whose occupations by nature expose them to particular risks, may not hold another negligent for creating the situation to which they respond in their professional capacity.

Koehn, 495 N.E.2d at 215. ¹

If this statement of the fireman's rule is only "basically" what the rule provides, then it was not specifically what the rule provides and not all that the rule provides. The terms "particular risks," "the situation," and "professional capacity" were yet to be defined. The decisions in Koehn and subsequent cases have attempted to provide that specificity. ² In the process, this Court has recognized the importance of incurred risk and public policy as reasons for the rule.

In Koehn, the Court examined the principles behind the law of premises liability as it applies to the fireman's rule. Then, along with notions of incurred risk and public policy, the Court analogized and applied those principles to off-premises liability. The court stated:

... because it would create a dichotomy to establish policies which deny recovery to a fireman injured on-premises but allows recovery to a fireman injured off-premises, the fireman's rule must be applied to off-premises injuries sustained by firemen acting in their professional capacity.... [S]o the fireman incurs the risks inherent in the situation when he undertakes an off-premises rescue in his official capacity.

Id.

In Koop v. Bailey (1986), Ind.App., 502 N.E.2d 116, this Court applied the Koehn statement of the fireman's rule to a police officer who had been injured by the owners' son, apparently on the premises. The Court examined whether the police officer's occupation had exposed him to the particular risks and whether he had responded in his professional capacity. The court concluded that both of these elements were met and that the officer could not hold the owners of the premises liable for negligence. The Court concluded that, "the trial court was correct in its finding that [the police officer] was a licensee." Id. at 118. Despite the use of the Koehn statement of the fireman's rule, however, the facts of the case fell squarely within the premises liability rationale of Woodruff. ³ Nevertheless, the fireman's rule applies to police officers. Sports Bench, Inc. v. McPherson (1987), Ind.App., 509 N.E.2d 233, trans. denied.

Despite this somewhat shaky start, the fireman's rule is firmly established in this jurisdiction. Id. at 236. The rule, as noted, has been applied to police officers. Id. Further, this Court has, at various times, stated that the rule applies to "public safety professionals," to "public safety officers" and to "other officers." Fox, 594 N.E.2d at 495, 496; Sports Bench, 509 N.E.2d at 235.

We have stated that, if the rule is to be abolished, that action must come either from the legislature or from our supreme court. Sports Bench, 509 N.E.2d at 236. Nevertheless, the scope of the fireman's rule is a matter of our common law which may be adapted to fit the circumstances of the case. The application of the rule to this area has not been addressed in Indiana; but, in our view, the reasons for the fireman's rule justify an extension of the rule to a paramedic.

The Robeys brought suit in negligence, one element of which is a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff. Webb, 575 N.E.2d 992. Three factors must be balanced to impose a duty at common law: the relationship between the parties, the reasonable foreseeability of harm, and the concerns of public policy. Id. at 995. We will examine these factors in our determination of whether Heck and Peabody Coal indeed owed any duty to Robey.

RELATIONSHIP BETWEEN THE PARTIES

Robey is a paramedic. He works for Warrick Emergency Services, a part of Warrick County Hospital, Inc., which was under contract with the Warrick County Commissioners to provide emergency and paramedic medical services in Warrick County, Indiana. In this manner, Warrick County fulfills its essential purpose to provide emergency medical service. Ind.Code 16-31-1-2.

Under the arrangement, the hospital sends bills to individuals who have used the services but the County reimburses certain expenses if they are not covered by charges collected by the hospital. These expenses include the labor cost of the drivers, attendants, dispatchers, and director and include taxes, insurance, and benefits. Thus, Robey is a professional paramedic who provides emergency rescue services to the public and whose compensation is ultimately the responsibility of the taxpayers. From this, we conclude that he is within the classification of the "public safety professional" mentioned in Fox, 594 N.E.2d at 495.

The Robeys claim that the relationship between James Robey and Peabody Coal was that of rescuer and alleged tortfeasor and that the rescue doctrine applies...