Winn v. Frasher

• Decision Date: 16 February 1989
• Docket Number: D,17392 and 17401,Nos. 17373,I-IV,I-I,s. 17373
• Citation: 777 P.2d 722,116 Idaho 500
• Parties: , 57 USLW 2550 Kevin WINN; Robert Conner; Fred Rice; Stanley Clark; Jerald Ketterling; John D. Fisher and Tina Fisher, husband and wife; Timothy Hatcher and Teresa Hatcher, husband and wife; and Steve Hobbs, Plaintiffs-Respondents, v. Donald Ray FRASHER and Helen Frasher, husband and wife; American Farmland, Inc., Defendants-Appellants. Kevin WINN; Robert Conner; Fred Rice; Stanley Clark; Jerald Ketterling; John D. Fisher and Tina Fisher, husband and wife; Timothy Hatcher and Teresa Hatcher, husband and wife; and Steve Hobbs, Plaintiffs-Respondents, v. Donald Ray FRASHER and Helen Frasher, husband and wife; American Farmland, Inc.; David Bremers; Platte Chemical Company, Inc.; Balcom Chemical, Inc.; John Doesefendants, and Van Leer Container, Inc., Defendant-Appellant. Kevin WINN; Robert Conner; Fred Rice; Stanley Clark; Jerald Ketterling; John D. Fisher and Tina Fisher, husband and wife; Timothy Hatcher and Teresa Hatcher, husband and wife; and Steve Hobbs, Plaintiffs-Respondents, v. Donald Ray FRASHER and Helen Frasher, husband and wife; American Farmland, Inc., David Bremers, Defendants, and Platte Chemical Company, Inc., Balcom Chemical Company, Inc., United Agri Products, Inc., Tri River Chemicals, Inc., Uniroyal Chemical Co., Vertac Chemical Co., Defendants-Appellants, and John Does, and Van Leer Containers, Inc., Defendants.
• Court: Idaho Supreme Court

Page 722

777 P.2d 722

116 Idaho 500, 57 USLW 2550

Kevin WINN; Robert Conner; Fred Rice; Stanley Clark; Jerald Ketterling; John D. Fisher and Tina Fisher, husband and wife; Timothy Hatcher and Teresa Hatcher, husband and wife; and Steve Hobbs, Plaintiffs-Respondents, v.Donald Ray FRASHER and Helen Frasher, husband and wife; American Farmland, Inc., Defendants-Appellants.

Kevin WINN; Robert Conner; Fred Rice; Stanley Clark; Jerald Ketterling; John D. Fisher and Tina Fisher, husband and wife; Timothy Hatcher and Teresa Hatcher, husband and wife; and Steve Hobbs, Plaintiffs-Respondents, v.Donald Ray FRASHER and Helen Frasher, husband and wife; American Farmland, Inc.; David Bremers; Platte Chemical Company, Inc.; Balcom Chemical, Inc.; John Does I-IV, Defendants, andVan Leer Container, Inc., Defendant-AppellantKevin WINN; Robert Conner; Fred Rice; Stanley Clark; Jerald Ketterling; John D. Fisher and Tina Fisher, husband and wife; Timothy Hatcher and Teresa Hatcher, husband and wife; and Steve Hobbs, Plaintiffs-Respondents, v.Donald Ray FRASHER and Helen Frasher, husband and wife; American Farmland, Inc., David Bremers, Defendants andPlatte Chemical Company, Inc., Balcom Chemical Company, Inc., United Agri Products, Inc., Tri River Chemicals, Inc., Uniroyal Chemical Co., Vertac Chemical Co., Defendants-Appellants andJohn Does I-IV, and Van Leer Containers, Inc., Defendants.

Nos. 17373, 17392 and 17401.

Supreme Court of Idaho.

Feb. 16, 1989.

Rehearing Denied Aug. 28, 1989.

Nelson, Rosholt, Robertson, Tolman & Tucker, Twin Falls, for defendants-appellants, Frashers and American Farmland, Inc.George R. Bevan argued, Twin Falls.

Holden, Kidwell, Hahn & Crapo, Idaho Falls, for defendant-appellant, Van Leer Container, Inc.William D. Faler argued, Idaho Falls.

Benoit, Alexander, Sinclair, Harwood & High, Twin Falls, for all chemical companies and United Agri Products.Robert J. Alexander argued, Twin Falls.

E. Lee Schlender, Chartered, Hailey, for plaintiffs-respondents, Winn, Conner, Rice, Clark, Hobbs and Ketterling.E. Lee Schlender argued, Hailey.

Penelope Parker-Kimber, Twin Falls, for plaintiffs-respondents, Fishers and Hatchers.

JOHNSON, Justice.

This is a personal injury action.The trial court denied a motion for summary judgment of the defendants on the ground that the so-called "fireman's rule" does not exist in this state.We disagree and reverse and remand.

I.

THE UNUSUAL POSTURE OF THIS CASE AND OUR NARROW APPROACH IN THIS OPINION.

This appeal is before us in an unusual posture.The decision of the trial court that is on appeal is a denial of a motion for summary judgment.Ordinarily, this is not an appealable order.However, the trial court certified this case to us as an interlocutory appeal pursuant to I.A.R. 12(c)(2).We granted permission for these appeals under this rule.We took this unusual action because we viewed the question presented by the motion for summary judgment and the trial court's decision as one of first impression that would be controlling in this case.We concluded that these appeals would advance the orderly resolution of the litigation.Cf.Budell v. Todd, 105 Idaho 2, 665 P.2d 701(1983).

Because of the unusual posture of the case, we are constrained to rule narrowly and address only the precise question that was framed by the motion and answered by the trial court.Upon remand there will be many new questions to be addressed by the parties and the trial court.We do not intend to imply by our decision today what the answers to those questions are, or what the result of the litigation will be.We intend only to answer the question framed by the motion and answered by the trial court.

II.

THE ONLY QUESTION PRESENTED HERE IS WHETHER THE FIREMAN'S RULE EXISTS IN THIS STATE.

The motion for summary judgment of the defendants was "made on the ground that plaintiff's action is barred by the so-called 'fireman's rule,' which provides that neither a fireman nor a policeman may recover in tort when his injuries are caused by the same conduct that required his official presence."In ruling on this motion the trial court ruled "that the so-called 'fireman's rule' is inoperative in the State of Idaho."It is to this question only that we will address ourselves.

III.

THE FACTUAL BACKGROUND ACCEPTED BY THE TRIAL COURT.

In the decision of the trial court on the motion, the trial court set forth findings of fact.Findings of fact are not necessary in decisions on motions for summary judgment.I.R.C.P. 52(a).For the purposes of this opinion, we consider that the findings of fact contained in the trial court's decision constituted the factual background accepted by the trial court in answering the question framed by the motion.We do not intend by reciting these facts to indicate that we approve them.We only restate them here as a basis for understanding the context in which the question presented here arose.The trial court made the following findings of fact:

FINDINGS OF FACT

On April 11, 1985, a truck contracted through defendantAmerican Farmland, Inc., and driven by defendantDonald Frasher, stopped in Rupert, Idaho in route to Walla Walla, Washington, where they were to deliver a load of potato defoliant chemical which they were hauling.The chemical was manufactured by the various chemical company defendants herein and was packaged in containers provided by Van Leer Containers, Inc.The Frashers stopped at the Wayside Cafe in Rupert, Idaho, and Mr. Frasher proceeded to inspect the truck as was his custom.In so doing, he noticed that some of the chemical which he was hauling had leaked into the back of the truck.He then proceeded, upon directions from his dispatcher, to a nearby carwash and washed the material out of the truck.

While at the carwash, and after having completed washing out the truck, Mr. Frasher was approached by Officer Stanley Clark, one of the plaintiffs herein.Officer Clark questioned Mr. Frasher as to the purpose for his presence at the carwash.Mr. Frasher then explained that a small amount of chemical had spilled in his truck and that he had washed it out.He showed Officer Clark a copy of the bill of lading which identified the substance as substituted nitrophenol pesticide liquid NOS FLAMABLE LIQUID (poison) UN2780 (dinitro 3-B).

Officer Clark then left the carwash and Mr. Frasher drove his truck back to the Wayside Cafe.Each of the above-named plaintiffs subsequently responded to the spill while on duty as paid public safety officers in the employ of Rupert City, Minidoka County, or the State of Idaho.The officers returned to the carwash looking for Mr. Frasher and subsequently found him at the Wayside Cafe, whereupon they proceeded to secure the area in order to protect the public from the effects of the chemical spill.

The five consolidated cases for purposes of this Motion include eight plaintiffs.They are:

Stanley Clark: Police Officer, City of Rupert

Robert Conner: Patrolman, Idaho State Police

Jerald Ketterling: Deputy Sheriff, Minidoka County

Fred Rice: Patrolman, Idaho State Police

Kevin Winn: Patrolman, Idaho State Police

Timothy Hatcher: Sheriff's Officer, Minidoka County

John Fisher: Lieutenant, Minidoka County Sheriff's Office

Steven Hobbs: Officer, Rupert City Police

These officers then brought the various lawsuits referred to above against the defendants herein, for injuries which they allegedly suffered as a result of exposure to the chemical on April 11, 1985.Any such injuries arose in the course of and during the scope of the officers' employment as paid public safety officials.

IV.

THE FIREMAN'S RULE EXISTS IN IDAHO.

The defendants have cited cases from several other states that have accepted the fireman's rule.Apparently, Oregon is the only state that has recently considered the rule and has rejected it.Christensen v. Murphy, 296 Or. 610, 678 P.2d 1210(1984).While we are not inclined to "nose count" how many other jurisdictions have accepted a particular rule of law as a means of deciding whether it will apply in this state, we are impressed that the great majority of states accept the rule.We note, however, little consistency from state to state in the basis for the acceptance of the rule.Some find the rationale for the rule in the treatment of firemen and policemen as licensees to whom landowners owe only the duty not to act wilfully or wantonly.Others have extended this form of the rule to off-premises situations.Still others have predicated their version of the rule on assumption of the risk, usually in the "primary sense," i.e., that the party whose liability is alleged had no duty to the fireman.The more recent and persuasive cases treat the rule as being compelled by public policy.We find this last rationale to be the most appropriate for our consideration.

We note with interest that almost 60 years ago this Court handed down a decision concerning the duty of a landowner to a policeman who came on the landowner's land in the performance of the policeman's duty and was injured because of the condition of the land.Pincock v. McCoy, 48 Idaho 227, 281 P. 371(1929).We find this case to be of no real assistance to us in deciding the question presented here.Pincock deals only with the duty to a licensee and not with the broader issue which the fireman's rule addresses.Because of the narrow focus of this opinion, we decline to address the current vitality of the rule stated in Pincock.

Defendants have suggested that we use assumption of the risk in the "primary sense" as the basis for our acceptance of the fireman's rule, despite the general rejection of assumption of the risk as a defense in Salinas v. Vierstra, 107 Idaho 984, 695 P.2d 369(1985).We note with interest that the special concurrence of Justice Spear in Fawcett v. Irby, 92 Idaho 48, 54-6, 436 P.2d 714, 720-21(1968), that was relied upon by Justice Bistline in Salinas, (107 Idaho at 988, 990, 695 P.2d 369), carefully...