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Apodaca v. Willmore

Court of Appeals of Kansas

May 15, 2015

JUAN A. APODACA, Appellant,
v.
MARK WILLMORE, MATTHEW WILLMORE, and OAK RIVER INSURANCE COMPANY, Appellees

Page 482

Appeal from Shawnee District Court; LARRY D. HENDRICKS, judge.

SYLLABUS

BY THE COURT

1. The firefighter's rule is deeply rooted in the common law and was initially grounded in the law of premises liability. While some courts opted to base the rule on premise liability and assumption of risk, the Kansas Supreme Court adopted the firefighter's rule as a matter of public policy.

2. In Kansas, a firefighter cannot recover for injuries caused by the very wrong that initially required his or her presence at the scene in an official capacity and subjected the firefighter to harm. Accordingly, a firefighter is precluded from recovery against an individual whose negligence created the need for the presence of the firefighter at the scene in his or her professional capacity.

3. There are three recognized exceptions to the firefighter's rule in Kansas: First, when a third party's negligence or intentional misconduct results in an injury to the firefighter; second, when the individual responsible for the firefighter's presence engages in subsequent acts of negligence or misconduct after the firefighter has arrived at the scene; and third, when an individual fails to warn of a known, hidden danger on the individual's premises or for misrepresentations of the nature of the hazard which harm the firefighter.

4. Law enforcement officers, like firefighters, do not respond to public safety calls in order to fulfill any private duty owed to the person who caused the emergency but because of their duty to the public as a whole.

5. The public policy of the State of Kansas precludes recovery against an individual whose negligence created a need for the presence of a law enforcement officer performing a public safety function at the scene in an official capacity.

Roger D. Fincher, of Bryan, Lykins, Hejtmanek and Fincher, P.A., of Topeka, for appellant.

Joel W. Riggs and Craig C. Blumreich, of Larson & Blumreich Chartered, of Topeka, for appellees.

Before SCHROEDER, P.J., ATCHESON and BRUNS, JJ.

OPINION

Page 483

[51 Kan.App.2d 535] Bruns, J.:

This case presents an issue of first impression in Kansas. We are asked to decide whether the judicially created firefighter's rule (previously referred to as the " fireman's rule" ) applies to law enforcement officers. We find that the public policy expressed by the Kansas Supreme Court in Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 694 P.2d 433 (1985), applies equally to firefighters and law enforcement officers. Accordingly, we conclude that the firefighter's rule bars law enforcement officers from recovering in negligence actions for injuries they receive in handling public safety calls--such as automobile accidents--as part of their official duties. Moreover, we conclude that the exceptions to the firefighter's rule recognized in Calvert are not applicable to this case. Thus, we affirm the district court's decision.

Facts

At about 3:30 a.m. on October 18, 2009, in Riley County, Matthew Willmore was driving his father's 1998 Ford F-150 pickup north on K-177, which is a four-lane highway separated by a grassy median. Less than a mile north of Interstate 70, Willmore fell asleep at the wheel and rolled the pickup across the median. The truck eventually came to a stop on its wheels, blocking the southbound lanes of the highway. Willmore--who was 18 years old at the time of the accident--had drunk several beers at a friend's house earlier that night.

David McGillis, who was also driving north, witnessed the accident and stopped to assist Willmore. After Willmore exited the pickup truck, he walked to the median where he spoke with McGillis. Willmore then attempted to move the truck but found that it [51 Kan.App.2d 536] would not start. Although it was dark outside and there were no lights illuminating the highway, Willmore turned off the truck's headlights. He called his parents to inform them of the accident and then began picking up debris from the highway.

In response to a 911 call from McGillis, a dispatcher for the Riley County Police Department (RCPD) advised officers Juan Apodaca and Jonathan Dulaney--who were patrolling together--about the traffic accident. The dispatcher told the officers that the location of the accident was north of Interstate 70 on K-177 and that the vehicle involved in the accident was in the southbound lanes of the highway. Officer Apodaca acknowledged to the dispatcher that the accident was north of Interstate 70. The dispatcher also informed the officers that nobody was injured in the accident.

Officer Apodaca drove to the accident scene--with Officer Dulaney in the passenger seat--at a high rate of speed with his emergency lights and sirens activated. Officer Apodaca saw the headlights and flashers from McGillis' vehicle--that was parked on the center-edge of the northbound lanes--from over a mile away, and he believed it was the scene of the accident. Officer Apodaca did not see the disabled pickup in the southbound lanes and struck it while travelling 104 mph. The second accident occurred at 3:42 a.m.

Around 6 a.m., an evidentiary breath test revealed that Willmore's breath alcohol content was .103. During an interview conducted by a RCPD investigator about 5 months after the accident, Officer Apodaca acknowledged that the dispatcher had told him that the accident was north of Interstate 70 and that the truck was blocking the southbound lanes. But the officer stated that for some reason he envisioned the accident scene being south of Interstate 70. Officer Apodaca did not recall the dispatcher telling him that no one was injured in the accident. Instead, Officer Apodaca stated that he was driving at a high rate of speed because he believed someone may have been injured.

As a result of the accident, both Officer Apodaca and Officer Dulaney suffered serious injuries. They applied for and received workers' compensation benefits. On October 17, 2011, the officers filed a joint petition in Shawnee County District Court, alleging [51 Kan.App.2d 537] that Willmore's negligence caused them to suffer personal injuries and related damages. The officers also asserted a claim of negligent entrustment against Willmore's father. A few months later, Oak River Insurance Company--

Page 484

the liability carrier for the RCPD--intervened as a party ...


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