Pottebaum v. Hinds, 83-551

Citation347 N.W.2d 642
Decision Date11 April 1984
Docket NumberNo. 83-551,83-551
PartiesMartin J. POTTEBAUM and Robert Michael Post, Appellees, v. Thomas E. HINDS and Kent Larson d/b/a Kent Properties, Ltd., a/k/a Naked Zoo, Appellants.
CourtUnited States State Supreme Court of Iowa

Thomas M. Plaza of Gleysteen, Harper, Eidsmoe, Heidman & Redmond, Sioux City, for appellants.

Harry H. Smith, MacDonald Smith, and Dennis M. McElwain of Smith & Smith, Sioux City, for appellees.

Considered en banc.

SCHULTZ, Justice.

This appeal raises an issue of first impression. In particular, we must decide whether we will join the general trend and adopt the fireman's rule which limits liability for certain negligent acts or wrongful conduct causing on-the-job injuries to firefighters or policemen. If we do, we also must decide whether the rule would apply to a dram shop action brought pursuant to Iowa Code section 123.92. While the term "fireman's rule" is used generically, this common law doctrine, in actuality, is a product of various legal theories resulting in several different rules. We determine public policy supports adoption of a narrow rule denying recovery to a firefighter and policeman whenever their injuries are caused by the very wrong that initially required the presence of an officer in his official capacity and subjected him to harm. We also hold that the rule, when applicable, bars recovery in a dram shop action.

The facts underlying this case are simply stated. Martin J. Pottebaum and Robert Michael Post, two Sioux City police officers, filed a dram shop action against Kent Larson, operator of the Naked Zoo Tavern, seeking damages for injuries they sustained when an intoxicated patron assaulted them while they were attempting to quell a disturbance at Larson's tavern. In a separate division of their petition, plaintiffs also sued the patron, Thomas E. Hinds. The claim against Hinds is not involved in this appeal and is unaffected by our decision today.

In his answer and also in a subsequent motion for judgment on the pleadings, defendant Larson asserted that the fireman's rule barred policemen from recovering for injuries sustained while acting in their official capacity. The district court overruled the motion on the ground that "Iowa has not adopted the fireman's rule nor has it applied it to Iowa Code § 123.92 (1981)." We hold that under the narrow formulation of the rule adopted by us today, the dram shop operator was entitled to judgment on the pleadings. Accordingly, we reverse the district court.

The dram shop operator's arguments may be fairly summarized by his reference to the long, solid history of the fireman's rule, the near universal recognition by courts of this common law doctrine, its application to policemen, and finally the more recent extension of the rule to dram shop liability cases.

Plaintiffs, on the other hand, contend that whatever else we may decide about the rule, we should not judicially engraft a nonstatutory exception onto section 123.92 since the purpose of that act was to provide a remedy not available at common law. Additionally, they point out various criticisms of the rule and further claim that defendant has failed to demonstrate overriding policy considerations justifying application of the rule to our dram shop act.

Although the fireman's rule has been criticized by some authors and judges, e.g. Prosser, Handbook Law of Torts, § 61 at 395-98 (4th ed. 1971); 2 Harper & James, The Law of Torts, § 27.14 at 1501-05 (1956); Comment, 64 Minn.L.Rev. 878 (1980); Comment, 6 Pac.L.J. 660 (1975); Berko v. Freda, 93 N.J. 81, 91, 459 A.2d 663, 668 (1983) (Handler, J., dissenting); Hannah v. Jensen, 298 N.W.2d 52, 55 (Minn.1980) (Scott, J., dissenting); Walters v. Sloan, 20 Cal.3d 199, 207, 142 Cal.Rptr. 152, 157, 571 P.2d 609, 614 (1977) (Tobriner, J., dissenting), it is undeniably true, as defendant asserts, that almost all jurisdictions confronting this issue have adopted some form of the fireman's rule. Thus a majority of jurisdictions limit, in one way or another, the extent of a negligent actor's liability to policemen or firefighters who are injured while performing their official duties. See cases cited in Annot., 86 A.L.R.2d 1205 (1962); A.L.R.2d Later Case Service, pp. 419-21 (1979); and Dooley, Modern Tort Law, § 19.07 (1982 Supp.1983). Indeed, the modern trend is not away from the rule but toward it as evidenced by the recent adoption of the fireman's rule in several jurisdictions. E.g., Steelman v. Lind, 97 Nev. 425, 634 P.2d 666 (1981); Grable v. Varela, 115 Ariz. 222, 564 P.2d 911 (1977); Thompson v. Warehouse Corp. of America, 337 So.2d 572 (La.App.1976); Hass v. Chicago and Northwestern Ry. Co., 48 Wis.2d 321, 179 N.W.2d 885 (1970); Giorgi v. Pacific Gas & Electric Co., 226 Cal.App.2d 355, 72 Cal.Rptr. 119 (1968); Buren v. Midwest Industries, Inc., 380 S.W.2d 96 (Ky.App.1964); Krauth v. Geller, 31 N.J. 270, 157 A.2d 129 (1960). And courts have not been the least reluctant to extend this rule to policemen. Berko v. Freda, 93 N.J. 81, 459 A.2d 663 (1983); Steelman v. Lind, 97 Nev. 425, 634 P.2d 666 (1981); Garcia v. City of So. Tucson, 131 Ariz. 315, 640 P.2d 1117 (App.1981); Hannah v. Jensen, 298 N.W.2d 52 (Minn.1980); Whitten v. Miami-Dade Water & Sewer Authority, 357 So.2d 430 (Fla.App.), cert. denied, 364 So.2d 894 (Fla.1978); Weaver v. O'Banion, 359 So.2d 706 (La.App.), cert. denied, 360 So.2d 1349 (La.1978); Walters v. Sloan, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609 (1977); Nared v. School District of Omaha, 191 Neb. 376, 215 N.W.2d 115 (1974); Scheurer v. Trustees of Open Bible Church, 175 Ohio St. 163, Ohio Op. 453, 192 N.E.2d 38 (1963).

The California Supreme Court recently responded to criticism of the rule:

The rule was born almost a century ago, earning nearly unanimous acceptance....

In recent years, the rule has been repeatedly attacked as being "behind the times," based on outdated concepts of tort liability. However, the courts in this and other jurisdictions have answered the attacks, pointing out the rule is premised on sound public policy and is in accord with--if not compelled by--modern tort liability principles.

Walters v. Sloan, 20 Cal.3d 199, 202-03, 142 Cal.Rptr. 152, 154, 571 P.2d 609, 611 (1977) (citations omitted).

Historically, the rule arose in the context of the differing duties owed by a landowner or occupier to individuals coming on his land. Since a policeman or fireman was privileged to enter land pursuant to his public duties and could come on property any place or time, courts classified them as bare licensees and held the only duty owed these public servants was to not wantonly or willfully injure them. Some jurisdictions still rely on this rationale to limit liability to public safety officials. See, e.g., Whitten v. Miami-Dade Water & Sewer Authority, 357 So.2d 430, 432 (Fla.App.1978) ("once upon premises, fireman or policeman has legal status of licensee and sole duty owed him by owner or occupant is to refrain from wanton negligence or willful misconduct and to warn him of any defect or condition known to owner or occupant to be dangerous, if such danger is not open to ordinary observation"); Abney v. London Iron & Metal Co., 245 Ga. 759, 761, 267 S.E.2d 214, 216 (1980) (as a matter of law, policeman is not an invitee but licensee even though he enters property at owner's behest, and as a licensee, owner only has duty to refrain from wantonly or recklessly exposing officer to hidden perils); Lave v. Neumann, 211 Neb. 97, 99- 100, 317 N.W.2d 779, 781 (1982) ("A fireman or individual fighting a fire on premises of an owner or occupier is a bare licensee to whom the owner or occupant owes no greater duty than to refrain from injuring him by willful or wanton negligence or a designed injury, except in certain cases where there may be a duty to warn of hidden peril known to owner or occupant but unknown to or unobservable by the fireman in the exercise of ordinary care"). We have backed away from conclusively basing a land possessor's duty of care on the status of the injured party. Rosenau v. City of Estherville, 199 N.W.2d 125, 136 (Iowa 1972). Moreover, basing the fireman's rule on the status of the injured party would seem to unfairly limit the rule's application to the landowner/occupant context, thus denying liability for negligent acts of these individuals but not for others whose negligent acts injure police officers or firemen elsewhere.

Other courts rely on the assumption of risk doctrine to bar recovery for damages caused to policemen or firefighters from those risks that are inherent in their jobs. E.g., Armstrong v. Mailand, 284 N.W.2d 343, 352 (Minn.1979) (In a wrongful death action, fireman's primary assumption of risk can be invoked to relieve defendants other than landowners of their duties with respect to reasonably apparent risks that were part of firefighting); Steelman v. Lind, 97 Nev. 425, 427-28, 634 P.2d 666, 667 (1981) (Public safety officer, in accepting salary and fringe benefits assumes all normal risks inherent in employment as a matter of law and may not recover from one who negligently creates such a risk); Lipson v. Superior Court, 31 Cal.3d 362, 371, 182 Cal.Rptr. 629, 635, 644 P.2d 822, 828 (1982) (A fireman only assumes hazards which are known or can be reasonably anticipated at the site of the fire).

Still others rely on public policy considerations in limiting recovery for injuries incurred by public safety officers while performing in an official capacity. See e.g., Berko v. Freda, 93 N.J. 81, 459 A.2d 663, 666 (1983); Walters v. Sloan, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609 (1977); Hass v. Chicago Northwestern Ry. Co., 48 Wis.2d 321, 179 N.W.2d 885 (1970). Regardless of the rationale invoked to support the rule, courts almost universally recognize that neither a fireman nor a policeman can recover when their complaint is based on the same conduct that initially created the need for the officer's presence in his...

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