Waggoner v. Troutman Oil Co., Inc., 94-622

• Decision Date: 20 March 1995
• Docket Number: No. 94-622,94-622
• Citation: 320 Ark. 56,894 S.W.2d 913
• Parties: Ben WAGGONER and Suzanne Waggoner, his wife, Appellants, v. TROUTMAN OIL COMPANY, INC.; Billy S. Sublett; and Jim Reese, d/b/a J & S Quickstop, Appellees.
• Court: Arkansas Supreme Court

Page 913

894 S.W.2d 913

320 Ark. 56

Ben WAGGONER and Suzanne Waggoner, his wife, Appellants, v. TROUTMAN OIL COMPANY, INC.; Billy S. Sublett; and Jim Reese, d/b/a J & S Quickstop, Appellees.

No. 94-622.

Supreme Court of Arkansas.

March 20, 1995.

Phillip Farris, Batesville, for appellant.

Marci Talbot Liles, Little Rock, for Billy S. Sublett.

R. Kenny McCulloch, Little Rock, for Troutman Oil Co., Inc.

GLAZE, Justice.

This case raises the issue concerning whether this court should adopt the Fireman's Rule. Ben Waggoner, a volunteer fireman for the Mt. Vernon Fire Department, was working at his business on the day Billy Sublett drove his pickup truck into an above-ground kerosene storage tank owned by Jim Reese. Reese was operating a business called J & S Quickstop and the storage tank was part of that business. Waggoner was only about 200 feet from the truck at the time of the collision. He saw steam or smoke coming from the truck, so he ran to the site to clear the area of children. Waggoner then saw flames arise from underneath the truck and fluid leaking from the tank. At about that time, a firetruck arrived, and Waggoner took the hose from one of the firemen and began hosing the fire. When he heard a percolating noise coming from the tank, Waggoner dropped the hose and ran, but after he ran about twenty feet, the tank exploded, causing Waggoner to sustain third degree burns over the backside of his body. Waggoner and his wife brought suit for negligence against Sublett, Reese and Troutman Oil, which was the supplier of kerosene to the above-ground tank. Troutman Oil filed a cross-complaint against Sublett and Reese. ¹ Because Waggoner received workers' compensation benefits, the Association of Arkansas Counties' Workers' Compensation Trust Fund intervened, seeking its statutory lien on any recovery awarded Waggoner.

The trial court granted Sublett and Troutman Oil summary judgment, holding the Fireman's Rule governed the circumstances leading to Waggoner's injuries, and served as a complete bar to the Waggoners' claims against all party defendants. The trial court further found that Troutman Oil owed no duty to inspect or rectify any problems involving the tank, and that the actions of Sublett and Troutman Oil were not the proximate cause of Mr. Waggoner's injuries. The Waggoners bring this appeal from the trial court's summary judgment.

The Fireman's Rule (also known as the professional rescuer doctrine) generally provides that a professional firefighter may not recover damages from a private party for injuries the fireman sustained during the course of putting out a fire even though the private party's negligence may have caused the fire and injury. While Arkansas has neither adopted nor rejected the Fireman's Rule, the rule has been almost universally accepted by jurisdictions confronted with the choice. In fact, twenty-three states and the District of Columbia have adopted the rule, albeit based upon differing rationale, and only three states have rejected the rule either by case law or statute. Grable v. Varela, 115 Ariz. 222, 564 P.2d 911 (1977); Baker v. Superior Court, 129 Cal.App.3d 710, 181 Cal.Rptr. 311 (4th Dist.1982); Carpenter v. O'Day, 562 A.2d 595 (Del.Super.1988); Gillespie v. Washington, 395 A.2d 18 (D.C.1978); Bycom Corp. v. White, 187 Ga.App. 759, 762, 371 S.E.2d 233 (1988); Thomas v. Pang, 72 Haw. 191, 811 P.2d 821 (1991); Winn v. Frasher, 116 Idaho 500, 777 P.2d 722 (1989); Court v. Grzelinski, 72 Ill.2d 141, 19 Ill.Dec. 617, 379 N.E.2d 281 (1978); Heck v. Robey, 630 N.E.2d 1361 (Ind.App. 1 Dist.1994); Koehn v. Devereaux, 495 N.E.2d 211, 215 (Ind.App.1986); Pottebaum v. Hinds, 347 N.W.2d 642 (Iowa 1984); Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 694 P.2d 433 (1985); Hawkins v. Sun Mark Industries, Inc., 727 S.W.2d 397 (Ky.1986); Flowers v. Rock Creek Terrace, 308 Md. 432, 520 A.2d 361 (1987); Kreski v. Modern Wholesale Electric Supply Co., 429 Mich. 347, 357, 372, 415 N.W.2d 178 (1987); Hannah v. Jensen, 298 N.W.2d 52 (Minn.1980); Anderson v. Cinnamon, 365 Mo. 304, 282 S.W.2d 445 (1955); Wax v. Co-Operative Refinery Association, 154 Neb. 805, 49 N.W.2d 707 (1951); England v. Tasker, 129 N.H. 467, 529 A.2d 938 (1987); Krauth v. Jeller, 31 N.J. 270, 157 A.2d 129 (1960); Kenavan v. City of New York, 70 N.Y.2d 558, 523 N.Y.S.2d 60, 517 N.E.2d 872 (1987); Steelman v. Lind, 97 Nev. 425, 634 P.2d 666 (1981); Scheurer v. Trustees of Open Bible Church, 175 Ohio St. 163, 192 N.E.2d 38 (1963); Cook v. Demetraks, 108 R.I. 397, 275 A.2d 919 (1971); Chesapeak & Ohio Ry. v. Crouch, 208 Va. 602, 159 S.E.2d 650 (cert denied), 393 U.S. 845, 89 S.Ct. 128, 21 L.Ed.2d 115 (1968); Hass v. Chicago & N.W.Ry., 48 Wis.2d 321, 179 N.W.2d 885 (1970); contra Christensen v. Murphy, 296 Or. 610, 678 P.2d 1210 (1984); Minn.Stat., 604.06 (1984); Fla.Stat., Ch. 112.182 (1990).

It is noteworthy to point out that some jurisdictions' rationale in adopting the rule is based upon treating the fireman as a licensee to whom landowners owe only the duty not to act willfully or wantonly. Other jurisdictions have predicated utilization of the rule upon the assumption of risk doctrine. However, the most persuasive decisions, we think, are those that justify the Fireman's Rule on public policy considerations. In those cases, the courts submit that the risk is one which the fireman has engaged to encounter by virtue of his employment and one which it is his duty to accept, and the person who negligently causes the fire has therefore not breached a duty owed the fireman. Buchanan v. Prickett & Son, Inc., 203 Neb. 684, 279 N.W.2d 855 (1979). The Supreme Court of Hawaii related this public policy consideration similarly as follows:

The very purpose of the firefighting profession is to confront danger. Firefighters are hired, trained, and compensated to deal with dangerous situations that are often caused by negligent conduct or acts. [I]t offends public policy to say that a citizen invites private liability merely because he happens to create a need for those public services.

Thomas, 811 P.2d 821, 825.

For examples of other jurisdictions adopting the Fireman's Rule based on public policy considerations, see Pottsbaum, 347 N.W.2d 642 (Iowa 1984); Hawkins, 727 S.W.2d 397; Kreski, 429 Mich. 347, 415 N.W.2d 178; Phillips v. Hallmark Cards, Inc., 722 S.W.2d 86 (Mo.1987); Austin v. City of Buffalo, 179 A.D.2d 1075, 580 N.Y.S.2d 604 (1992); Heck, 630 N.E.2d 1361.

After reviewing the foregoing case authorities on this subject, we conclude the Fireman's Rule is applicable to the circumstances here and should control. That being said, we affirm the trial court's decision and hold that the rule bars the Waggoners' recovery for the very valid public policy reason that the party or parties who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter was employed to confront.

The Waggoners argue alternatively that, even if the Fireman's Rule is adopted by this court, exceptions to that rule apply here that still permit their recovery. They mention, for example, that Sublett pled guilty to a felony for having driven his truck into the kerosene storage tank. While it has been said that the courts have traditionally held that the protection of the Fireman's Rule does not extend to willful, wanton or reckless conduct or hidden dangers caused by defendants, the Waggoners failed to make these allegations part of their complaint against the defendants-appellees, nor did they obtain the trial court's ruling on such an issue. ² See Petition of Sprague, 132 N.H. 250, 564 A.2d 829 (1989); Thomas, 811 P.2d 821; Migdal v. Stamp, 132 N.H. 171, 564 A.2d 826 (1989); Mahoney v. Carus Chemical Co., 102 N.J. 564, 510 A.2d 4 (1986); 62 Am.Jur. Premises Liability § 431 (1990 and Cum.Supp.1994); see also Hawkins, 727 S.W.2d 397; contra Young v. Sherwin-Williams Co., Inc., 569 A.2d 1173 (D.C.App.1990).

The Waggoners did appropriately and timely raise their arguments that Waggoner was not covered by the Fireman's Rule because he was a "volunteer" fireman. He also claimed that, even if volunteer firemen are covered by the rule, he was not acting as a fireman at the time of his injuries.

In concluding as a matter of law, Waggoner was acting as a fireman when he sustained his injuries, the trial court determined that Waggoner admitted in his amended response to Troutman Oil's motion for summary judgment that he was performing his duties as a volunteer fireman at the time of his injuries. In fact, the undisputed evidence reflects that at least at some point Waggoner clearly assumed his duties as a fireman by taking the Mt. Vernon Fire Department's hose under his control and fighting the flame resulting from the leaking storage tank. Waggoner's actions were consistent with his past and present history. Waggoner had trained as a firefighter, had served as Mt. Vernon's first volunteer fire chief, and continued on the town's roster of firefighters. He also conceded that, as a firefighter, he has received workers' compensation benefits for injuries sustained in this case as a result of such coverage having been provided by Mt. Vernon's volunteer fire department.

Concerning Waggoner's contention that, as a volunteer rather than a paid fireman, he should not be barred by the Fireman's Rule, we point out that the cases fail to support this view. In fact, the general rule appears to be that the duty owed to volunteer firefighters is no different from that owed to paid firefighters. See Buchanan, 203 Neb. 684, 279 N.W.2d 855; Baker v. Superior Ct., 129 Cal.App.3d 710, 181 Cal.Rptr. 311 (1982); see also 62 Am.Jur.2d § 436. We further point out that, under Arkansas' statutory law, volunteer firemen are under a duty to respond to, attempt to control, and put out all fires occurring within their respective districts. Ark.Code Ann. § 20-22-901 (Repl.1991). We would also be remiss in failing to...