McKernan v. General Motors Corp., 83,619

• Decision Date: 21 April 2000
• Docket Number: No. 83,619,83,619
• Parties: MICHAEL W. McKERNAN, individually, and for the benefit of his wife, ANNETTE D. MCKERNAN, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendant.
• Court: Kansas Supreme Court

269 Kan. 131

3 P.3d 1261

MICHAEL W. McKERNAN, individually, and for the benefit of his wife, ANNETTE D. MCKERNAN, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendant.

No. 83,619

Supreme Court of Kansas.

Opinion filed April 21, 2000.

Chan P. Townsley, of Hutton & Hutton, of Wichita, argued the cause and was on the briefs for plaintiff. David C. Stout, of Chionuma and Associates, P.C., of Kansas City, Missouri, argued the cause, and Chuck N. Chionuma, of the same firm, was with him on the brief for defendant.

The opinion of the court was delivered by

LOCKETT, J.:

Plaintiff, a firefighter, filed a products liability suit in the United States District Court against the manufacturer of an automobile, alleging negligence and strict liability claims for an injury that occurred when the automobile's right hood strut exploded and injured the firefighter as he attempted to extinguish a car fire. The action is before the United States District Court for the District of Kansas on the manufacturer's motion for summary judgment. The manufacturer claims the firefighter's claims are barred by the Firefighter's Rule, as adopted in Kansas in Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 694 P.2d 433 (1985). The United States District Court pursuant to K.S.A. 60-3201 certified two questions for determination by this court:

1. Does the Kansas Firefighter's Rule bar a firefighter's products liability claims against a defendant whose product exploded during the course of a car fire, but which was not the cause of the fire, injuring the firefighter?

2. Must the hazard or danger that caused injury be an anticipated, normal, or otherwise foreseeable risk of firefighting to justify application of the Firefighter's Rule?

Michael W. McKernan has been employed as a firefighter for the Wichita Fire Department since March 1982. On January 17, 1995, his fire engine was dispatched to a car fire in Wichita, Kansas. Upon arrival, McKernan found a 1993 Oldsmobile Achieva automobile with gasoline and rear tires burning. There were no visible flames around the car's engine compartment when McKernan arrived.

Following fire department procedures, McKernan first circled the car to determine whether there were any injured persons in the area and to identify hazards. To eliminate any further ignition source, he attempted to open the hood of the car and disconnect the battery. McKernan was unable to open the hood. As he stepped back from the car, a right hood gas strut exploded, firing the strut rod through the right headlight of the car piercing McKernan's left hand and striking him in the abdomen with sufficient force to penetrate his Kevlar firefighter's jacket and cause bruising. The rod was later surgically removed from his left hand.

The gas strut that injured McKernan was one of two struts attached to the car's hood to hold the hood open when raised. The other strut later exploded during the fire. After it exploded, firefighters heard it pass through trees but were unable to locate it. An investigation determined that the car had been stolen and set afire with a flammable liquid.

There are approximately 500 car fires reported each year in Wichita, Kansas. McKernan has responded to approximately 50 car fires throughout his career with the Wichita Fire Department. The fire department provides training and training materials that identify potential hazards during car fires and discuss how the hazards should be handled. As a result of McKernan's training and experience, he knew that automobile tires, gas tanks, air bags, air conditioner evaporators, hollow drive shafts, and low impact bumpers can explode during car fires.

McKernan was aware and had been trained as to the potential explosion of gas-filled hatchback struts during car fires. However, the department training officers were unaware of the placement of gas struts under the hoods of vehicles prior to McKernan's injury. In addition, no instructors, safety training class, or manual available to Wichita firefighters identified the use of gas-filled struts as hood lifts or warned of specific dangers from that use.

McKernan filed this suit, alleging various negligence and strict liability claims against General Motors Corporation based on the Oldsmobile Achieva's hood struts. McKernan's wife sued as well for her derivative losses. For ease of analysis in the opinion, we shall refer only to the firefighter's claim and McKernan as the plaintiff. McKernan asserts General Motors was negligent in designing, manufacturing, or distributing automobiles with gas hood struts and in failing to warn of the risk of exploding struts. In addition, McKernan claims General Motors is strictly liable for his injuries because General Motors manufactured the Achieva with latent and hidden defects and failed to warn of those defects. General Motors seeks summary judgment on the entirety of Mc-Kernan's claims based on the Firefighter's Rule, adopted by the Kansas Supreme Court in Calvert.

Does the Kansas Firefighter's Rule bar a firefighter's products liability claims against a defendant whose product exploded during the course of a car fire, but which was not the cause of the fire, injuring the firefighter?

The Firefighter's Rule, as adopted in Kansas, provides that a firefighter who enters upon the premises of another in the discharge of his duty may not maintain a cause of action against the individual whose negligence created the risk which necessitated the firefighter's presence and resulted in injury to the firefighter. Calvert, 236 Kan. at 572. McKernan contends that the Kansas Firefighter's Rule does not bar his suit against General Motors because General Motors' negligence did not create the risk, i.e., the burning automobile, which necessitated his presence at the fire. General Motors asserts that the Firefighter's Rule applies and bars Mc-Kernan's damage claims because McKernan was at the scene of the car fire in his official capacity as a firefighter and was injured by the wrong (i.e., car fire) that required his presence.

Calvert is the only published Kansas case where the Firefighter's Rule has been applied. Calvert concerned a firefighter, also trained to assist medical emergencies, who was injured while responding to a call for assistance due to an ammonia leak at a grain elevator complex. The firefighter inhaled ammonia at the scene and later suffered a heart attack as a result. The firefighter filed suit against the owners of the elevator where the ammonia leak occurred, seeking damages for injuries he suffered while responding to the scene of the leak. The district court granted summary judgment for the defendants, and the firefighter appealed.

The Calvert court reviewed the theories upon which the Firefighter's Rule is premised in other jurisdictions, such as premises liability, assumption of risk, and public policy. The Calvert court first rejected premises liability as a basis for the rule, finding that premises liability law was inadequate to create a duty owed by landowners to firefighters because firefighters are not true licensees in that landowners have no authority to consent to or forbid the firefighter from entering the land in fulfillment of his or her duties. Assumption of risk was also rejected by the Calvert court because application of that doctrine requires a master/servant relationship, with the master being the individual taxpayer and the servant being the firefighter. The court was not willing to extend the doctrine of assumption of risk to that extent. 236 Kan. at 575. After rejecting those theories the Calvert court held that Kansas public policy was the basis for the Firefighter's Rule, stating:

"[I]t is a public policy of the State of Kansas that a firefighter cannot recover for injuries caused by the very wrong that initially required his presence in an official capacity and subjected the firefighter to harm; that public policy precludes recovery against an individual whose negligence created a need for the presence of the firefighter at the scene in his professional capacity." 236 Kan. at 576.

The Calvert court adopted the Firefighter's Rule and held that because the ammonia leak was a known danger, the Rule was a defense to the firefighter's cause of action against the owners of the elevator. 236 Kan. at 577.

Calvert clearly established that in Kansas, the Firefighter's Rule is a defense for owners and occupiers of land whose negligence caused the fire which resulted in injury to the firefighter. Narrowly construed, the rule would not preclude McKernan's products liability suit because McKernan's suit is not against an owner or occupier whose negligence was the cause of the fire that caused McKernan's injury.

We note that dictum in Calvert suggests that the Firefighter's Rule does not bar a plaintiffs products liability claims. See 236 Kan. at 576 ("It is not the public policy to bar a firefighter from recovery for negligence ... by a third party."). However, the Calvert case did not expressly discuss a third-party products liability claim; therefore, the public policy articulated as the basis for the Firefighter's Rule must be weighed against the public policy supporting products liability claims to determine whether the rule bars recovery in a products liability case.

Both parties discuss cases from other jurisdictions to support their respective positions. See White v. Edmond, 971 F.2d 681 (11th Cir. 1992); Orth v. Cole, 191 Ariz. 291, 955 P.2d 47 (Ct. App. 1998); Wright v. Stang Manufacturing Co., 54 Cal. App. 4th 1218, 63 Cal. Rptr.2d 422 (1997); Rennenger v. Pacesetter Co., 558 N.W.2d 419 (Iowa 1997); Paul v. Luigi's, Inc., 557 N.W.2d 895 (Iowa 1997); Flowers v. Rock Creek Terrace, 308 Md. 432, 520 A.2d 361 (1987); Kreski v. Modern Electric, 429 Mich. 347, 415 N.W.2d 178 (1987); Armstrong v. Mailand, 284 N.W.2d 343 (Minn. 1979); Mahoney v. Carus Chemical Co., Inc., 102 N.J. 564, 582, 510 A.2d 4 (1986); Austin v. City of Buffalo, 179...