Pinter v. American Family Mut. Ins. Co.

• Decision Date: 30 June 2000
• Docket Number: No. 99-0869.,99-0869.
• Citation: 236 Wis.2d 137,613 N.W.2d 110,2000 WI 75
• Parties: Thomas J. PINTER, Plaintiff-Appellant, EMPLOYERS INS. OF WAUSAU, a Mutual Co., Plaintiff, v. AMERICAN FAMILY MUTUAL INS. CO., Stephen Jesmok, Heritage Mutual Ins. Co. and Herbert O. Otto, Defendants-Respondents.
• Court: Wisconsin Supreme Court

236 Wis.2d 137

2000 WI 75

613 N.W.2d 110

Thomas J. PINTER, Plaintiff-Appellant, EMPLOYERS INS. OF WAUSAU, a Mutual Co., Plaintiff, v. AMERICAN FAMILY MUTUAL INS. CO., Stephen Jesmok, Heritage Mutual Ins. Co. and Herbert O. Otto, Defendants-Respondents.

No. 99-0869.

Supreme Court of Wisconsin.

Oral argument May 4, 2000.

Decided June 30, 2000.

For the plaintiff-appellant there were briefs by Patricia A. Schober and Schober, Bostetter & Heiden, S.C., Brookfield, and oral argument by Patricia A. Schober.

For the defendants-respondents there was a brief by Arthur P. Simpson and Simpson & Deardorff, S.C., Milwaukee, and oral argument by Arthur P. Simpson.

An amicus curiae brief was filed by Frank T. Crivello, II, and Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C., Milwaukee, on behalf of the Wisconsin Academy of Trial Lawyers.

¶ 1. JON P. WILCOX, J.

Thomas Pinter appeals from the grant of summary judgment against his negligence action. Pinter is a firefighter and EMT who sustained injuries while providing emergency medical assistance to a passenger who was injured in an automobile accident. Pinter sued the drivers of the cars that were involved in the accident, arguing that his injuries were the direct and proximate result of the drivers' negligence.

¶ 2. The drivers moved for summary judgment. The Circuit Court for Waukesha County, Patrick L. Snyder, Judge, granted the drivers' summary judgment motions because the court concluded that a public policy limitation on liability, commonly termed the "firefighter's rule," bars Pinter from pursuing a negligence action against the drivers.

¶ 3. Pinter appealed. The court of appeals certified the appeal to this court to decide the following question:

Does the firefighter's rule, as adopted in Hass v. Chicago & North Western Railway, 48 Wis. 2d 321, 179 N.W.2d 885 (1970), bar an emergency medical technician (EMT) from pursuing a cause of action against a negligent driver for injuries sustained while rendering aid to the victim of an automobile accident?

We answer this question in the affirmative. We therefore affirm the judgment of the circuit court.

FACTS

¶ 4. Because this case arises on a motion for summary judgment we accept the facts pleaded by the plaintiff as true. Sawyer v. Midelfort, 227 Wis. 2d 124, 136, 595 N.W.2d 423 (1999). The facts alleged by Pinter are as follows.

¶ 5. On February 27, 1997, Stephen Jesmok and Herbert Otto negligently caused an automobile collision in Brookfield, Waukesha County. The collision resulted in injury to a woman who was a passenger in Jesmok's vehicle.

¶ 6. Pinter is a firefighter and EMT for the city of Brookfield whose job requires him to provide emergency care and treatment to victims of automobile accidents in the Brookfield vicinity. Pinter has special training and extensive experience in extricating injured individuals from automobiles.

¶ 7. Pinter was called to the scene of the collision caused by Jesmok and Otto on February 27, 1997. He responded to the emergency in his capacity as an EMT, to provide emergency medical assistance to the injured passenger.

¶ 8. The passenger appeared to be suffering from a spinal cord injury. To assist in safely extricating the passenger from the vehicle, Pinter was required to maintain traction on the passenger's head, neck, and back. To do so, Pinter had to assume an awkward position for a period of time. As a result of maintaining this awkward position, Pinter sustained an inguinal hernia, a serious and permanent injury that required surgical repair.

PROCEDURAL HISTORY

¶ 9. On July 29, 1998, Pinter filed a complaint against Jesmok, Otto, and their insurers claiming that his injuries were a direct and proximate result of Jesmok and Otto's negligence. In his action against the drivers, Pinter seeks compensatory damages for severe and permanent injuries; pain, suffering, and disability; medical bills; and loss of earning capacity. The worker's compensation carrier who compensated Pinter for his injuries is a subrogated plaintiff in Pinter's complaint.

¶ 10. The defendants filed motions for summary judgment arguing that Pinter's action against the negligent drivers was barred by Hass and by public policy considerations.¹ Hass holds that "one who negligently starts a fire is not liable for that negligence when it causes injury to a firefighter who comes to extinguish the blaze." Hass, 48 Wis. 2d at 327.

¶ 11. The circuit court concluded that the reasoning of Hass applied equally to Pinter's cause of action. The court indicated that if Pinter's claims against the drivers were based at least in part on separate acts of negligence (that is, negligence besides the negligent driving that caused the collision) then the claims could proceed. However, Pinter conceded that his claims were based solely on the negligent driving that caused the collision. The court therefore dismissed Pinter's claims with prejudice.

STANDARD OF REVIEW

[1,2]

¶ 12. Pinter appeals from the circuit court's grant of summary judgment to the defendants-respondents. We review a grant of summary judgment independently, using the same method as the circuit court. Sawyer, 227 Wis. 2d at 135. Summary judgment will be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 136 (quoting Schuster v. Altenberg, 144 Wis. 2d 223, 424 N.W.2d 159 (1988)).

[3,4]

¶ 13. Summary judgment was granted in this case in reliance on Hass, which establishes a public policy limitation on liability. Whether public policy considerations preclude a particular cause of action is a question of law, to be determined solely by the court. Hass, 48 Wis. 2d at 326. Although it is often better to examine such public policy considerations after the facts have been resolved by trial, there are cases in which the public policy question is fully presented by the pleadings. Id. at 326-27. This is such a case.

ANALYSIS

¶ 14. Most jurisdictions in the United States limit liability in negligence cases under a theory of law commonly termed the "firefighter's rule."² As applied to firefighters, the rule limits a firefighter's ability to recover damages for injuries sustained while performing his or her duties as a firefighter. In many jurisdictions this rule was originally based on the reasoning that a firefighter who enters premises to fight a fire is a licensee to whom the owner or occupier of the premises owes no duty except to refrain from willful or wanton injury.³ As the categories of "invitee" and "licensee" gradually have been abolished in tort law,⁴ some courts turned to the doctrine of assumption of risk to support the rule.⁵ These courts reasoned that "`one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby.'" Thomas v. Pang, 811 P.2d 821, 824 (Haw. 1991)(quoting Walters v. Sloan, 571 P.2d 609, 612 (Cal. 1977),abrogated in part by Neighbarger v. Irwin Indus., Inc., 882 P.2d 347 (Cal. 1994)

and superseded in part by statute in Cal. Civil Code § 1714.9 (West 1999)).

[5]

¶ 15. More recently, most courts adopting or adhering to the firefighter's rule have justified the rule on public policy grounds. Thomas, 811 P.2d at 824. Thirty years ago, public policy led this court to recognize a limitation on liability in a firefighter's negligence action in Hass. Hass, 48 Wis. 2d at 326-27

.

[6]

¶ 16. In Wisconsin, even when negligent conduct was a substantial factor in causing an injury, public policy considerations may preclude the injured party from pursuing a cause of action. Hass, 48 Wis. 2d at 326. Recovery may be denied when:

"[T]he injury is too remote from the negligence or too `wholly out of proportion to the culpability of the negligent tort-feasor,' or in retrospect it appears too highly extraordinary that the negligence should have brought about the harm, or because allowance of recovery would place too unreasonable a burden upon users of the highway, or be too likely to open the way to fraudulent claims, or would `enter a field that has no sensible or just stopping point.'"

Id. (quoting Colla v. Mandella, 1 Wis. 2d 594, 599, 85 N.W.2d 345 (1957)). Hass concluded that these public policy considerations precluded a firefighter's negligence action for injuries sustained while fighting a fire. Hass, 48 Wis. 2d at 322-23.

¶ 17. The firefighter in Hass was injured in a fire that was caused by a railroad company's negligence. Id. at 326. The Hass court acknowledged that starting a fire under the alleged circumstances was negligent, and that such negligence was a "substantial factor" in causing the plaintiff's injuries. Id. at 326.

[7-9]

¶ 18. Nonetheless, the court barred recovery. The court observed that nearly all fires are caused by negligence. Id. at 327. The court therefore determined that requiring a person who negligently starts a fire to pay damages to a firefighter would place too great a burden on owners and occupiers of real estate. Id. In addition, liability would "`enter a field that has no sensible or just stopping point.'" Id. The court held that because of these public policy considerations, "one who negligently starts a fire is not liable for that negligence when it causes injury to a firefighter who comes to extinguish the blaze." Id.

¶ 19. Pinter argues that the rule in Hass does not apply to his case because Hass only bars recovery for negligence in "starting a fire and failing to curtail its spread." See id. Pinter emphasizes that all of this court's subsequent cases examining Hass have distinguished Hass and have permitted recovery. Pinter urges this court to hold that Hass is limited to its literal terms.

¶ 20. Pinter is correct in his assertion that thus far Hass has not been extended beyond its own facts.

¶ 21. The first case that re-examined the rule in Hass was Clark v. Corby, 75 Wis. 2d 292, 249 N.W.2d 567 (1977). Clark involved a fire that started in a residence when...