Sam v. Wesley

• Decision Date: 07 March 1995
• Docket Number: No. 64A03-9404-CV-163,64A03-9404-CV-163
• Citation: 647 N.E.2d 382
• Parties: Daniel SAM, Appellant-Plaintiff, v. James WESLEY, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 382

647 N.E.2d 382

Daniel SAM, Appellant-Plaintiff, v. James WESLEY, Appellee-Defendant.

No. 64A03-9404-CV-163.

Court of Appeals of Indiana Third District.

March 7, 1995.

Thom W. Kramer, Buoscio, Pera, Kramer & Nowak, Merrillville, for appellant.

Albert C. Hand, Nancy Townsend Beggs, Hand, Meunich & Wilk, Highland, for appellee.

OPINION

GARRARD, Judge.

Daniel Sam, a building inspector for the town of Merrillville, appeals the trial court's grant of summary judgment to James Wesley, denying Sam recovery for personal injuries sustained while inspecting Wesley's property.

FACTS

In February of 1987, a fire severely damaged Wesley's home. He contracted with Hixon Home Improvement in March of 1987 to repair the premises, and the repairs were completed in May of that same year.

Sam is the building inspector and plan reviewer for the Town of Merrillville. His duties include reviewing blue prints and performing building inspections to enforce compliance with the building codes.

On May 18, 1987, Sam arrived at Wesley's home to execute his final inspection of the premises. Hixon had called to schedule the inspection, and arrangements had been made through Sam's secretary to have Wesley present at the home to let Sam in. While at the home, Sam slipped and fell on a flight of wooden stairs, sustaining a back injury.

Sam filed suit against Wesley and Hixon on April 14, 1989. ¹ Wesley's initial motion for summary judgment was denied, but, after filing a supplemental brief, the court granted Wesley's motion on the theory that Sam, as a building inspector, is a public safety officer and subject to the fireman's rule. Sam appeals this judgment.

ISSUE AND DISCUSSION

The sole issue raised by Sam is whether or not a town building inspector falls within the fireman's rule. ²

In reviewing a ruling on a motion for summary judgment, we apply the same standard as the trial court. Valley Federal Sav. Bank v. Anderson (1993), Ind.App., 612 N.E.2d 1099, 1101. The moving party must make a prima facie showing that (1) there is no issue as to any material fact, and (2) the movant is entitled to judgment as a matter of law. Ind.Trial Rule 56(C); Midwest Commerce Banking Co. v. Livings (1993), Ind.App., 608 N.E.2d 1010, 1012. If the movant meets this initial burden, to avoid summary judgment the nonmoving party must demonstrate the existence of a genuine issue of material fact for trial. Id. Both parties must specifically designate to the trial court the evidentiary matter upon which they rely. Id. This court will affirm summary judgment on any legal theory which is consistent with the designated facts disclosed in the record. Valley Federal Sav. Bank, 612 N.E.2d at 1102.

The fireman's rule provides that public safety professionals, whose occupations by their nature expose them to particular risks, may not hold another individual negligent for creating the situation to which they respond in their official capacity. Fox v. Hawkins (1992), Ind.App., 594 N.E.2d 493, 495. The rule originated in the law of premises liability, when our supreme court held that firemen, acting within the scope of their duties, entered another's property under a license granted by law for the purpose of extinguishing a fire. Woodruff v. Bowen (1893), 136 Ind. 431, 34 N.E. 1113, 1116. As licensees, landowners owed fire fighters, and subsequently police officers, only the duty of abstaining from any positive wrongful act which could result in their injury. Id. 34 N.E. at 1117; Fox, 594 N.E.2d at 495.

In Koehn v. Devereaux (1986), Ind.App., 495 N.E.2d 211, the court applied the rule to off-premises cases as well, concluding that there was no logical reason for a distinction. The Koehn court reasoned that the fireman's rule was an exception to the rescue doctrine, which holds that "one who has, through his negligence, endangered the safety of another may be held liable for injuries sustained by a third person in attempting to save such other from injury." Id. at 215. Without such a rule, the rescuer would be subject to the defense of incurred risk. Thus, the fireman's rule indicates that a duty does not exist for a professional rescuer, who has chosen to incur risks. Heck v. Robey (1994), Ind.App., 630 N.E.2d 1361, 1366.

Finally, the rule has also been upheld for public policy reasons. In Kennedy v. Tri-City Comprehensive Community Mental Health Center (1992), Ind.App., 590 N.E.2d 140, trans. denied, we quoted approvingly from the policy concerns noted by the Michigan Supreme Court:

The policy arguments for adopting a fireman's rule stem from the nature of the service provided by fire fighters and police officers, as well as the relationship between these safety officers and the public they are employed to protect. It is beyond peradventure that the maintenance of organized society requires the presence and protection of fire fighters and police officers.

....

The public hires, trains, and compensates fire fighters and police officers to deal with dangerous, but inevitable situations.

....

The very nature of police work and fire fighting is to confront danger. The purpose of these professions is to protect the public. It is this relationship between police officers, fire fighters and society which distinguishes safety officers from other [public] employees.

Kennedy, 590 N.E.2d at 143-44, quoting Kreski v. Modern Wholesale Elec. Supply Co. (1987), 429 Mich. 347, 415 N.W.2d 178, 186-87.

Most recently, the fireman's rule has been extended to include paramedics. Heck, 630 N.E.2d 1361. In making its decision, the court first observed that a paramedic's job is to provide emergency medical and rescue services to the public, for which compensation is ultimately the responsibility of the taxpayers. Id. at 1365. From this, the court concluded that a paramedic is a public safety professional and incurs the inherent risks of situations when acting in a professional capacity. Id. The court concluded that public policy also favored including paramedics within the fireman's rule:

Here, we have the case of a public safety professional versus two tax-paying members of the public. The defendants, in essence, hired Robey and paid him to confront emergencies and rescue individuals; and Robey has consciously and voluntarily chosen to be exposed to the reasonably foreseeable harm inherent in his work.

Also, Robey is already compensated for the hazards and inherent risks of the calling through pay, medical, disability, and pension schemes and worker's compensation.

Id. at 1366-67.

We do not believe that a building inspector is a professional public safety officer in the nature of a fire fighter, police officer or paramedic. Building inspectors do not receive special training from the State to confront emergency situations, as do the other safety professionals included in the fireman's rule. ³ Further, a building inspector's job does not expose one to particular, specific, emergency risks as do the jobs listed above. A building inspector is not called upon to rescue an individual caught in a building which is not up to code. Instead, an inspector is employed to confirm that constructors are complying with the building code. There is some risk inherent in performing these duties; however, "[m]any kinds of public employees confront danger inherent in their jobs.... If we did not distinguish fire fighters and police officers from other public employees, then no public employees would be able to recover for injuries sustained as a result of those dangers." Lees v. Lobosco (1993), 265 N.J.Super. 95, 625 A.2d 573, 576. In Kennedy we observed that "[t]he rule's scope and our application is narrow," and we reiterate that position in this case. Kennedy, 590 N.E.2d at 143.

Fire fighters, police officers and paramedics all face very particular types of risk, directly related to the task of confronting emergencies and rescuing individuals, which are not present in the job of a building inspector. See Lees, 625 A.2d at 575 (persons who assume duties to "respond to danger and emergency" and "who undertake on behalf of the community 'to confront crisis and allay dangers' are 'summoned in circumstances of emergency' with 'no reasonable expectation that the property has been made safe for [their] arrival.' ") The Kreski court articulated the difference between "public safety professionals" and other employees:

In sum, fire fighters and police officers are different [from] other employees whose occupations may peripherally involve hazards. Safety officers are employed, specially trained, and paid to confront dangerous situations for the protection of society. They enter their professions with the certain knowledge that their personal safety is at risk while on duty. Property owners and occupiers cannot reasonably predict visits by safety officers or control their activities while on the premises.

....

Governmental entities maintain police and fire departments in anticipation of those inevitable physical perils that burden the human condition, whereas most public employment posts are created not to confront dangers that will arise but to perform some other public function that may incidentally involve risk.

Kreski, 415 N.W.2d at 189.

This core distinction between the duties and expectations of police officers, fire fighters and paramedics, as compared to building inspectors, is also supported by an examination of the primary objective of the fireman's rule. The rule was designed to protect victims by encouraging them to seek emergency assistance without fear of subsequent tort liability. ⁴ This objective is applicable under either the premises liability or incurred risk theories underlying the rule. However, this goal is clearly not implicated under the situation of the building inspector, as an individual does not notify the inspector to seek emergency assistance but rather to receive certification that he or she is in compliance with the law.

We have previously indicated...