Wills v. Bath Excavating & Const. Co.

• Decision Date: 06 June 1991
• Docket Number: No. 89CA2000,89CA2000
• Citation: 829 P.2d 405
• Parties: Norman WILLS and Jeanie Wills, Plaintiffs-Appellants, v. BATH EXCAVATING & CONSTRUCTION CO. and Hahn Plumbing & Heating, Inc., Defendants-Appellees. . V
• Court: Colorado Court of Appeals

Page 405

829 P.2d 405

Norman WILLS and Jeanie Wills, Plaintiffs-Appellants, v. BATH EXCAVATING & CONSTRUCTION CO. and Hahn Plumbing &amp Heating, Inc., Defendants-Appellees.

No. 89CA2000.

Colorado Court of Appeals Div. V.

June 6, 1991.

Rehearing Denied Aug. 1

and Aug. 8, 1991.

Certiorari Granted May 11, 1992.

Williams, Trine, Mari C. Bush, J. Conard Metcalf, Boulder, for plaintiffs-appellants.

Clifton & Hemphill, P.C., James R. Clifton, Rothgerber, Appel, Powers & Johnson, Patrick Q. Hustead, Franklin D. O'Loughlin, Denver, for defendants-appellees.

Opinion by Judge NEY.

In this personal injury action, plaintiffs, Norman and Jeanie Wills, appeal the summary judgment entered in favor of defendants, Bath Excavating and Construction Company and Hahn Plumbing and Heating, Inc. We reverse and remand with instructions.

While searching, under the direction of defendant Hahn, for underground water pipes, defendant Bath, using heavy excavating equipment, first severed a service line and then caused a second leak in a larger water main. The resultant high-pressure water flow enlarged and filled the excavation. A crew from the City of Fort Collins, which owns the underground pipes, was called to the scene, took charge of the repair operation, and increased the size of the excavation.

Plaintiff Norman Wills and another member of the city water crew attempted to plug the leak in the main line. While standing in the excavation, Wills was injured when struck by sliding mud. Since the injury, he has been unable to return to work at the water department or to continue additional employment in auto repair and as a drywaller.

Wills and his wife initiated this action, alleging that defendants' negligence in severing the water main necessitated the injured plaintiff's presence at the scene of a hazardous condition and resulted in his injuries. Premised on its conclusions that defendants owed no duty to plaintiffs, and that the "fireman's rule" barred plaintiffs' recovery, the trial court entered summary judgment for defendants, and this appeal followed.

I.

Plaintiffs first assert that the district court erred in concluding that defendants did not owe a common law duty of care to plaintiffs. We agree.

Whether a defendant owes a plaintiff the duty to avoid injury is a question of law to be determined by the court, Smith v. City & County of Denver, 726 P.2d 1125 (Colo.1986). And, the court in Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo.1987) articulated the factors to be considered in determining whether the law imposes a duty on a particular defendant. Included were "the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the [defendant's] conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the [defendant]."

Other considerations may also be relevant, and no one factor is controlling. However, foreseeability is the primary consideration in determining whether an owner or occupier of land owes a duty to persons who enter the premises. "It is the foreseeability of harm from the failure by the possessor to carry on his activities with reasonable care for the safety of the entrants which determines liability." Mile High Fence Co v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971); see Taco Bell, Inc., supra.

The trial court based its conclusion that no duty was owed to plaintiffs here on its previous conclusion that "at the time of plaintiff's alleged injury, these Defendants were no longer in control of the premises, nor was the work being performed in their charge. " (emphasis in original) However, the duty, if any, arose prior to the time of plaintiff's injury when defendants created the condition which compelled plaintiff's presence. Accordingly, we must analyze defendants' actions at the time of the rupture of the water lines to see if, indeed, plaintiffs were owed a duty of care.

In applying the factors listed in Taco Bell, supra, and Mile High Fence Co., supra, we conclude that, first, the element of risk to the public is present when a water line is negligently severed. In addition to disruption of a vital service, the unrestricted flow of water poses a danger to the physical well-being, as well as the property, of citizens. Second, it is foreseeable, having often occurred, that an underground line would be severed if excavated with heavy equipment. It is equally foreseeable that various persons could become involved in repairing a broken line and might be injured in the resultant dangerous conditions. Third, the burden to defendant if required to excavate by greater use of hand tools is primarily cost in time and manpower, but it is appropriate for the burden of increased cost to be borne by those who have undertaken the construction and who will profit by it. Fourth, the result of requiring defendants to exercise reasonable care would be a more cautious procedure which would, in all probability, culminate in a lessening of disruption of service and fewer accidents to public and private employees.

Based on the above analysis, we conclude that defendants owed a duty to exercise reasonable care in the excavation of water lines to avoid injury to plaintiffs.

While the question of whether a particular defendant owed a legal duty to a particular plaintiff is one of law for the court to decide, Smith, supra, the question of whether the defendant breached that duty by its actions or by its failure to act is one of fact and, therefore, is a matter for resolution by a jury. City of Aurora v. Loveless, 639 P.2d 1061 (Colo.1981). Accordingly, the trial court erred in entering summary judgment in favor of defendant on the basis that no duty was owed to plaintiff.

II.

Plaintiffs next contend that the trial court erred in determining that Norman Wills, as an employee of the Fort Collins Water Department, was barred by the "fireman's rule" from recovering damages from injuries suffered while performing his job. We again agree.

The fireman's rule provides that a public emergency employee (initially limited to firemen) in performance of his official duties may not recover in tort when his injuries are caused by negligent conduct which required his official presence. See Winn v. Frasher, 116 Idaho 500, 777 P.2d 722 (1989).

Virtually all courts which have addressed the issue have adopted the foregoing principle. See Berko v. Freda, 93 N.J. 81, 459 A.2d 663 (1983); McGee v. Adams Paper & Twine Co., 20 N.Y.2d 921, 233 N.E.2d 289, 286 N.Y.S.2d 274 (1967); Pottebaum v. Hinds, 347 N.W.2d 642 (Iowa, 1984); Martin v. Chicago Transit Authority, 128 Ill.App.3d 837, 84 Ill.Dec. 15, 471 N.E.2d 544 (1984). However, some courts have narrowed the rule by holding that liability would attach if an owner or occupant knew of a hidden danger and had an opportunity to warn the emergency employee of it, Lipson v. Superior Court, 31 Cal.3d 362, 644 P.2d 822, 182 Cal.Rptr. 629 (1982), or when risks encountered are not those reasonably to be anticipated by the public employees in question. See Johnson v. Miller, 371 N.W.2d 94 (Minn.App.1985); Jackson v. Velveray Corp., 82 N.J.Super. 469, 198...