Krause v. U.S. Truck Co., Inc., 72119

• Decision Date: 13 March 1990
• Docket Number: No. 72119,72119
• Citation: 787 S.W.2d 708
• Parties: , 58 USLW 2568 Shirley KRAUSE, etc., et al., Appellants, v. U.S. TRUCK COMPANY, INC., et al., Respondents, and Darryl A. James, Defendant, and American Family Mutual Insurance Co., Intervenor-Defendant.
• Court: Missouri Supreme Court

Page 708

787 S.W.2d 708

89 A.L.R.4th 1067, 58 USLW 2568

Shirley KRAUSE, etc., et al., Appellants, v. U.S. TRUCK COMPANY, INC., et al., Respondents and Darryl A. James, Defendant and American Family Mutual Insurance Co., Intervenor-Defendant.

No. 72119.

Supreme Court of Missouri En Banc.

March 13, 1990.

Rehearing Denied April 17, 1990.

Gary R. Bradley, Robert L. Langdon, N.R. Bradley, Lexington, for appellants.

Sylvester James, Sr., Robert A. Horn, James P. Barton, W. James Foland, Joseph J. Roper, Thomas A. Sheehan, Paul Hasty, Jr., Bradley S. Russell, Kansas City, for respondents.

John B. Reddoch, Scott J. Sullivan, Liberty, for intervenor-defendant.

HOLSTEIN, Judge.

Plaintiffs are the surviving widow and children of Dennis Krause. Krause died after being struck by a vehicle on Interstate 70 in Lafayette County on January 18, 1988. Plaintiffs brought a wrongful death action against six defendants. Defendant Darryl James was uninsured, and American Family Mutual Insurance Company was permitted to intervene and defend as an uninsured motorist insurer. Summary judgment was entered in favor of all defendants except James and American Family. The trial court, pursuant to Rule 74.01, ¹ designated the judgment final for purposes of appeal. Plaintiffs appealed to the Missouri Court of Appeals, Western District. Transfer was granted to this Court pursuant to Rule 83.03.

A summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits filed in support of the motion, show there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law. Rule 74.04(c). The facts are viewed in a light most favorable to plaintiffs. Tatum v. General Motors Acceptance Corp., 732 S.W.2d 591, 592 (Mo.App.1987). None of the parties dispute the accuracy of the trial court's factual findings.

In the early morning hours of January 18, 1988, a series of vehicle collisions occurred in the eastbound lanes of Interstate 70 near Emma, Missouri. Visibility was poor due to dense fog, and moisture had frozen on the pavement. Stanley Smith, an employee of U.S. Truck Company, Inc., lost control of his truck. The truck came to rest with the trailer partially blocking the highway. Immediately thereafter, vehicles operated by Jammie Bell and William Kruger collided with Smith's trailer or each other. At that point, the two eastbound lanes of the highway were blocked. In rapid succession Ernest Letterman's vehicle collided with the Kruger vehicle, and Ralph Mettlar's vehicle collided with Letterman's vehicle. The various collisions resulted in injuries.

The Concordia Fire District received word of the collisions a few minutes later. The fire district is manned by two part-time employees and twenty-seven "volunteer" members trained as firemen and ambulance attendants. The term "volunteer" is somewhat of a misnomer because those who respond to a call are paid an hourly wage; however, when summoned to an emergency, members have no obligation to respond. Dennis Krause was a member of the fire district and had training in advanced first aid. His only duties for the fire district were those of an ambulance attendant. Decedent's regular occupation was as a service station operator and mechanic.

On January 18, 1988, Krause chose to answer when summoned. Following standard procedures, he reported to the firehouse. Krause and two other attendants then proceeded to the scene of the accident, arriving fifteen to twenty minutes after the Mettlar vehicle collided with Letterman's vehicle. Firemen who arrived before Krause were attempting to control traffic. Both lanes of eastbound Interstate 70 remained blocked.

Krause and another ambulance attendant, Arch Wood, began efforts to attend the injured. Krause was leaning through the window of the Kruger vehicle. Defendant Darryl James, approaching from the west, apparently did not respond to a fireman who attempted to give a warning. Krause was struck and killed by the James vehicle. The incident occurred about thirty seconds after Krause arrived on the scene.

The trial court, in granting summary judgment, found that the negligence of U.S. Truck, Bell, Kruger, Letterman and Mettlar (hereafter defendants), was not the proximate cause of Krause's death, and that the "rescue doctrine" was not applicable in this case because of the "fireman's rule."

I.

In any action for negligence, the plaintiff must establish the existence of a duty on the part of the defendant to protect plaintiff from injury, failure of the defendant to perform that duty and, that plaintiff's injury was proximately caused by defendant's failure. Virginia D. v. Madesco Inv. Corp., 648 S.W.2d 881, 886 (Mo. banc 1983); Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976); Consumers Co-op Ass'n. v. McMahan, 393 S.W.2d 552, 555 (Mo.1965). The duty owed is generally measured by whether or not a reasonably prudent person would have anticipated danger and provided against it. Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc./ Special Products, Inc., 700 S.W.2d 426, 431 (Mo. banc 1985); Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253 (1928). No duty is owed to persons outside "the orbit of the danger as disclosed to the eye of reasonable vigilance." Palsgraf, 162 N.E. at 100.

Foreseeability also plays a prominent role in determining proximate cause. If two or more persons are guilty of consecutive acts of negligence closely related in time, there is a question as to whether the initial act of negligence was the proximate cause of the injury or whether there was an "efficient, intervening cause." Strake v. R.J. Reynolds Tobacco Co., 539 S.W.2d 715, 718 (Mo.App.1976). The practical test of proximate cause is generally considered to be whether the negligence of the defendant is that cause or act of which the injury was the natural and probable consequence. Id. Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820, 824 (banc 1956), adds, "Thus, from the essential meaning of proximate cause arises the principle that in order for an act to constitute the proximate cause of an injury, some injury, if not the precise one in question, must have been reasonably foreseeable." The cases discussing proximate cause contain the exasperating caveat that in deciding questions of proximate cause and efficient, intervening cause, each case must be decided on its own facts, and it is seldom that one decision controls another. Duke v. Missouri Pac. R. Co., 303 S.W.2d 613, 618 (Mo.1957); Dickerson, 286 S.W.2d at 824; Smith v. Secrist, 590 S.W.2d 386, 389 (Mo.App.1979); Strake, 539 S.W.2d at 718. Identifying those within the range of foreseeability who may be injured by an act of negligence is somewhat an exercise in subjectivity.

II.

The "rescue doctrine" is an attempt to find a bright line rule. The rescue doctrine is legal shorthand for a particular factual situation in which courts find the foreseeability requirement is satisfied. In those factual circumstances where one is injured while attempting a rescue, the negligence creating the peril requiring rescue is held to be the proximate cause of the rescuer's injury. More succinctly, danger invites rescue, and the wrong that imperils the victim is a wrong to the rescuer. Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437, 19 A.L.R. 1 (1921). "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." Lowrey v. Horvath, 689 S.W.2d 625, 628 (Mo. banc 1985).

III.

The crucial question remaining is whether the "firemen's rule" prohibits plaintiffs' recovery. 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. Phillips v. Hallmark Cards, Inc., 722 S.W.2d 86, 87 (Mo. banc 1986); Nastasio v. Cinnamon, 295 S.W.2d 117, 121 (Mo.1956). The rule excludes firemen from the benefit of the rescue doctrine in most cases.

Unlike the Phillips case, the question for decision here is not whether to abrogate the fireman's rule, but whether the fireman's rule is to be extended to an ambulance attendant. The observant reader will have noted that Krause was not trained or employed as a fireman or policeman. He was an ambulance attendant. Section 190.100(3), RSMo (Supp.1988), defines an ambulance attendant as: "[A] trained and qualified individual responsible for the operation of an ambulance and the care of the patients transported thereby whether or not the attendant also serves as driver." (Emphasis added.) To be a licensed ambulance attendant one must have completed an advanced first aid course, as well as meeting age, literacy, health and character requirements. § 190.145.2, RSMo 1986.

No Missouri case has applied the fireman's rule to ambulance attendants. Defendants argue that the rule applies to all persons who are "professional rescuers." They would include within that class anyone having public duties that may take them to the scene of an emergency. The plaintiffs argue that the fireman's rule should only apply to firemen, and only when firemen are performing their duties on the premises of another person. Neither extreme is supported by the case law.

The fireman's rule is a misnomer. It has been applied to police officers injured while involved in effecting an arrest. Berko v. Freda, 93 N.J. 81, 459 A.2d 663 (1983). The rule has also been extended to police officers injured while engaged in traffic control at the scene of an accident. Wietecha v. Peoronard, 102 N.J. 591, 510 A.2d 19 (1986). However, the reasons for the rule's application to firemen and police officers does...