Syracuse Rural Fire Dist. v. Pletan

• Decision Date: 03 April 1998
• Docket Number: No. S-96-1175,S-96-1175
• Citation: 577 N.W.2d 527,254 Neb. 393
• Court: Nebraska Supreme Court
• Parties: SYRACUSE RURAL FIRE DISTRICT, Appellant, v. Ronald PLETAN, Appellee.

Page 527

577 N.W.2d 527

254 Neb. 393

SYRACUSE RURAL FIRE DISTRICT, Appellant, v. Ronald PLETAN, Appellee.

No. S-96-1175.

Supreme Court of Nebraska.

April 3, 1998.

Syllabus by the Court

1. Pleadings: Demurrer: Appeal and Error. When reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept as true the conclusions of the pleader.

2. Summary Judgment: Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

4. Franchises: Words and Phrases. A franchise is property or a vested right, protected by the U.S. Constitution that, if accepted and acted on, does create a contract.

5. Licenses and Permits: Words and Phrases. A license is a means of regulating and taxing privileges and occupations and the use and disposal of property or a permit or privilege to do what otherwise would be unlawful.

6. Licenses and Permits. Because a license is a mere personal privilege, a license is not a contract between the authority granting it and the person to whom it is granted.

7. Firefighters: Negligence: Licensee. A firefighter or individual fighting a fire on the premises of an owner or occupant 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 danger or peril known to the owner or occupant but unknown to or unobservable by the firefighter in the exercise of ordinary care.

8. Fireman's Rule: Liability. A public policy rationale for the "fireman's rule" is that an owner or occupier of property should not be subjected to private liability because he or she created a need for public services.

9. Negligence: Intent: Words and Phrases. In order for an action to be willful or wanton, the evidence must prove that a defendant had actual knowledge that a danger existed and that the defendant intentionally failed to act to prevent harm which was reasonably likely to result.

10. Negligence: Intent: Words and Phrases. To constitute willful negligence, the act done or omitted must be intended or must involve such reckless disregard of security and right as to imply bad faith.

11. Negligence: Intent: Words and Phrases. Wanton negligence consists of doing or failing to do an act with reckless indifference to the consequences and with consciousness that the act or omission would probably cause serious injury.

12. Negligence: Licensee. An owner or occupier owes a duty to warn, if an opportunity is afforded, of hidden dangers known to the occupier but unknown to and not readily observable by a licensee.

Susan I. Strong, of Plessman Law Offices, Lincoln, for appellant.

Douglas J. Peterson, of Knudsen, Berkheimer, Richardson, Endacott & Routh, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, and McCORMACK, JJ.

CONNOLLY, Justice.

The appellant, Syracuse Rural Fire District, owned a truck used in fighting grass fires called a grass rig. The grass rig became stalled and subsequently was destroyed by fire in a field owned by the appellee, Ronald Pletan, while the fire district was responding to a grass fire on Pletan's property. The fire district sued Pletan on two causes of action, breach of contract and negligence. The district court for Otoe County sustained Pletan's demurrer to the contract cause of action and sustained Pletan's motion for summary judgment on the tort cause of action. We conclude that the permit issued to Pletan was not a contract between Pletan and the fire district and that the "fireman's rule" applies to bar liability of Pletan to the fire district. Accordingly, we affirm.

BACKGROUND

Pletan owned 160 acres of land located approximately 3 miles north of Syracuse, Nebraska. In 1989 or 1990, Pletan began clearing parcels of his land by burning different parcels on a yearly basis. As part of this controlled burning, Pletan rotated which parcels of land were burned each year so that each parcel would be burned once every 4 to 5 years. Under Neb.Rev.Stat. § 81-520.01 (Reissue 1996), there is a statewide ban on open burning in Nebraska. However, the fire chief of the local fire district may waive the open burning ban by issuing an open burning permit. Pletan had obtained permits On April 6, 1995, Pletan obtained an open burning permit from Chuck Bjork of the fire district. The permit stated that it was being issued in accordance with § 81-520.01, and Pletan signed the permit following a line that read "Signature of person(s) assuming responsibility in event fire becomes out of control." Pletan intended to burn approximately 36 acres of grassland in one quadrant of his property. Pletan, along with three other men and his son, began igniting the fire on his property the afternoon of April 6.

in the past when he burned parcels of his property.

Before Pletan had finished igniting the 36-acre tract, the fire jumped a creek on Pletan's property into an area that Pletan had not intended to burn. At that point, Pletan and the people assisting him were unable to leave what they were doing, so they finished igniting the controlled fire before returning to the fire that had jumped across the creek.

Approximately 20 minutes later, Pletan and another man returned with a tractor and disc and a water truck to the area where the fire had jumped the creek. Pletan's intention was to disc around the area of the uncontrolled fire to stop it. However, while Pletan and his assistants had been finishing igniting the controlled fire, a neighbor had seen the fire burning out of control on the other side of the creek and had called the fire district. Thus, when Pletan and his assistants got closer to the area where the fire had jumped the creek they discovered that ambulances and firetrucks were already at the scene. Pletan described the situation as "out of control." Pletan assisted the firefighters by scouting for fires. In addition, one of Pletan's assistants used Pletan's tractor to help pull out of the field a firetruck that had become stuck in the mud. At that time, Pletan was unaware that another truck had become stalled in the field and had subsequently burned.

Before Pletan arrived at the scene of the uncontrolled fire, Tim Wurtele, a member of the fire district, arrived driving the grass rig. Wurtele entered Pletan's property in the grass rig on some mowed or shredded grass and observed that the fire was burning out of control. Wurtele then drove the grass rig over several areas of unmowed grass to get a better look at the fire. However, while attempting to drive up a hill in order to return to an area of mowed grass, the grass rig became stalled.

The record is not clear as to whether the grass rig sank into a wet spot on the ground and became stuck or there was a mechanical problem that caused the grass rig to stall. Wurtele's affidavit alleges the grass rig hit a soft spot and sank. But Pletan alleges in his deposition that when he viewed the burned truck a few weeks later, there were no ruts around the tires of the truck and the ground was dry. Pletan also testified that ruts from other trucks that became stuck in soft spots could still be observed the next growing season. The deposition of Bruce Neemann, chief of the fire district, indicated that the grass rig may have had some transmission problems.

After the grass rig became stalled, a fire subsequently started underneath the truck. This fire was not connected with the fire out of control on Pletan's property, but apparently was ignited as a result of the truck's contact with the grass. Wurtele and the firefighters who were with him were able to fight the fire spreading from the truck with a portable water pump. However, the grass fire on Pletan's property soon made it necessary for Wurtele and the firefighters to abandon the grass rig, which was subsequently destroyed by the grass fire. Wurtele testified that he believes he could have prevented total destruction of the grass rig had he not been forced to abandon it.

Wurtele had no previous knowledge of soft spots on Pletan's property and was not forewarned that there were soft spots on the property that might be hazardous to the grass rig. Pletan testified that he subsequently discovered that there were some wet spots on his land, but since he does not farm the land, many times he does not know where they are. Pletan did know the location of several seasonal wet spots on his land but did not know of any in the area where the truck became stalled. Pletan also testified that he did not observe any mud on the day of the fire. Neemann testified that The fire district brought this action against Pletan, seeking damages for the loss of its grass rig. For its first cause of action, the fire district alleged that the permit issued to Pletan was contractual in nature and that Pletan breached the contract by not assuming responsibility under the contract for the fire district's damages. For its second cause of action, the fire district alleged that the grass rig was damaged due to Pletan's failure to exercise reasonable care by failing to isolate the controlled fire on his property. The fire district also alleges in the second cause of action the failure to warn the district of known dangerous wet areas on his...