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Kansas Court of Appeals Extends Firefighter’s Rule to Law Enforcement Officers

May 15, 2015

A recent case of first impression before the Kansas Court of Appeals resulted in the extension of the application of the firefighter’s rule to law enforcement officers.

In Apodaca v. Willmore, et al., (Docket No. 111,987; Kan. App. May 15, 2015), Matthew Willmore was driving north on a four-lane highway separated by a grassy median when he 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.  David McGillis, who was also driving north, witnessed the accident and stopped to assist Willmore.  After Willmore exited his truck, he walked to the median where he spoke with McGillis.  Willmore then attempted to move the truck but found it would not start.  Although it was dark outside and there were no lights illuminating the highway, Willmore turned off the truck’s headlights.  Willmore called his parents to inform them of the accident and began picking up debris from the highway.

In response to a 911 call from McGillis, a dispatcher advised Riley County Police Department (RCPD) officers Juan Apodaca and Jonathan Dulaney – who were patrolling together – about the traffic accident.  The dispatcher informed the officers of the location of the accident, that the vehicle involved was in the southbound lanes of the highway, and that no one was injured in the accident.  Officer Apodaca drove the accident scene – with Officer Delaney in the passenger seat – at a high rate of speed with emergency lights and sirens activated.  Officer Apocada saw the headlights and flashers form 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 traveling 104 mph.  Both officers suffered serious injuries as a result of the second accident.

On October 17, 2011, the officers filed a joint petition in Shawnee County alleging 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 (Oak River) – the liability carrier for the RCPD – intervened as a party to the lawsuit.  On March 22, 2013, both officers and Oak River filed a motion for partial summary judgment concerning the Willmores’ claims of comparative fault.  One week later, the Willmores also filed a motion for summary judgment.  Among other things, the Willmores argued that the firefighter’s rule barred all the officers’ claims.  Shortly thereafter, Officer Delaney dismissed his claims against the Willmores.  On March 13, 2014, the district court entered a memorandum decision and order denying the motion for partial summary judgment by the officers and Oak River, but granting summary judgment in favor of the Willmores.  In its decision, the district court found that the “fire fighters rule should be and is extended to law enforcement officers.”  Officer Apocada filed a motion for reconsideration and, for the first time, asserted that Willmore’s actions in causing the accident were willful, wanton, reckless, or intentional.  The district court denied the motion to reconsider.

Development of the Firefighter’s Rule

The rule, subject to exceptions, provides that a firefighter cannot recover for injuries caused by the wrong that initially required his or her presence at the scene in an official capacity. Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 576, 694 P.2d 433 (1985). The firefighter’s rule is rooted in the law of premises liability and was originally recognized by the Illinois Supreme Court in Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182 (1892), overruled by Dini v. Naiditch, 20 Ill. 2d 406, 170 N.E.2d 881 (1960). In Gibson, as well as most other early cases adopting the rule, firefighters were considered to be licensees to whom landowners or occupiers owed no duty other than to warn of known, hidden dangers and to refrain from inflicting intentional or willful harm.

The case of Krauth v. Geller, 31 N.J. 270, 157 A.2d 129 (1960) marked a change in rationale from basing the firefighter’s rule on premises liability to assumption of risk. Consequently, the Krauth court found that “for that risk, the fireman should receive appropriate compensation from the public he serves, both in pay which reflects the hazard and in workmen’s compensation benefits for the consequences of the inherent risks of the calling.” 31 N.J. at 274.

A more recent line of cases based the adoption of the firefighter’s rule on a public policy rationale. Although the specific policy reasons given vary from state to state, many courts focus on the nature of the relationship between firefighters and the public they are sworn to serve. For example, in Moody v. Delta Western, Inc., 38 P.3d 1139, 1142 (Alaska 2002), the Alaska Supreme Court found that the rule “reflects sound public policy” because “[t]he public pays for emergency responses of public safety officials in the form of salaries and enhanced benefits. Requiring members of the public to pay for injuries incurred by officers in such responses asks an individual to pay again for services the community has collectively purchased.”

Finally, several state legislatures have codified the firefighter’s rule. See, e.g., N.H. Rev. Stat. Ann. § 507:8-h (2010). On the other hand, other state legislatures have decided to abrogate the rule. See, e.g., Minn. Stat. § 604.06 (2010). To date, however, the Kansas Legislature has taken no action on the firefighter’s rule.

The Adoption of the Firefighter’s Rule in Kansas

The firefighter’s rule was adopted by the Kansas Supreme Court as a matter of public policy in Calvert v. Garvey Elevators, Inc. Specifically, our Supreme Court held in Calvert that “[i]t is a public policy of the State of Kansas that a fire fighter cannot recover for injuries caused by the very situation that initially required his presence in an official capacity and subjected the fire fighter to harm.” 236 Kan. 570, Syl. ¶ 1.

In Calvert, firefighters responded to an anhydrous ammonia leak at a grain elevator in Seward. Upon arriving at the scene, a fire captain spotted a man lying on the ground in the midst of ammonia vapors. Although there was little chance that the man was still alive, the captain and another firefighter clothed themselves in protective gear and attempted to save the man. Unfortunately, the captain inhaled some of the ammonia vapors and, as a result, suffered a heart attack. Although the captain received workers’ compensation benefits, he also filed a petition against the owners of the grain elevator seeking to recover monetary damages. Applying the firefighter’s rule, the district court granted summary judgment to the owners of the grain elevator. 236 Kan. at 571.

On appeal, the Kansas Supreme Court discussed the various rationales expressed by courts across the United States for adopting the firefighter’s rule, but ultimately sided with those jurisdictions that have adopted the firefighter’s rule based on the rationale that “[p]ublic policy precludes recovery against an individual whose negligence created the very need for the presence of the fire fighter at the scene in his professional capacity.” 236 Kan. at 575. In doing so, it reasoned that “[f]ire fighters are present upon the premises, not because of any private duty owed the occupant, but because of the duty owed to the public as a whole.” 236 Kan. at 576.

The Calvert court did, however, recognize three exceptions to the firefighter’s rule. Specifically, the Kansas Supreme Court found that the firefighter’s rule does not prevent recovery: (1) if a third party’s negligent or intentional misconduct results in an injury to the firefighter; (2) if the individual responsible for the firefighter’s presence engages in subsequent acts of negligence or intentional misconduct upon the arrival of the firefighter at the scene; and (3) if an individual fails to warn of a known, hidden danger on his or her premises or for misrepresentations of the nature of the hazard that harms the firefighter. 236 Kan. at 576. In conclusion, the Kansas Supreme Court made it clear that the firefighter’s rule in Kansas “is not to be based upon ‘premises law,’ or categorizing fire fighters as mere licensees when performing their duties, but upon public policy.” 236 Kan. at 577.

Fifteen years later, the Kansas Supreme Court considered the firefighter’s rule again in McKernan v. General Motors Corp., 269 Kan. 131, 3 P.3d 1261 (2000). In McKernan, the issue presented was whether the firefighter’s rule barred a product liability claim against a car manufacturer after a hood strut exploded and injured a firefighter attempting to extinguish an automobile fire. In ruling in favor of the firefighter, the Kansas Supreme Court found:

“Allowing products liability claims against parties whose negligence did not create the need for the firefighter at the scene does not frustrate the public policy basis of the Firefighter’s Rule as it was adopted in Kansas, but rather promotes the public policy of fixing responsibility for defective products on the party who introduces the product to the market place. The Kansas Firefighter’s Rule does not bar a products liability claim against a party whose negligence did not create the need for the firefighter at the scene.” 269 Kan. at 140-41.

Extension of Firefighter’s Rule to Law Enforcement Officers

In Buck v. B&W, Inc., No. 98-2405-GTV, 1999 WL 1007682 (D. Kan. 1999) (unpublished opinion), a Kansas Department of Transportation (KDOT) employee was called to direct traffic at the scene of an accident where a truck transporting cattle had overturned. While directing traffic at the scene, a steer escaped from the overturned trailer, charged the KDOT employee, and caused him to injure his knee. The Honorable G. Thomas VanBebber noted that although directing traffic at an accident scene was not a typical duty performed by KDOT employees, law enforcement officers often relied upon 11 KDOT employees to direct traffic when another officer was unavailable to assist. 1999 WL 1007682, at *1.

In Buck, Judge VanBebber wrote that although Kansas courts had not discussed the issue, other jurisdictions had “invariably” extended the firefighter’s rule to include law enforcement officers. 1999 WL 1007682, at *2. Similarly, Judge VanBebber concluded that the public policy expressed by the Kansas Supreme Court in Calvert applied equally to both firefighters and law enforcement officers. In doing so, he found the public should “be confident that in requesting the assistance of law enforcement officers to aid in situations where their own negligence has created a threat to public safety, they will not be held liable for injuries caused . . . as a result of the risks [they] created.” 1999 WL 1007682, at *2.

After mentioning other jurisdictions which extend the firefighter’s rule to law enforcement officers, the Court of Appeals also noted some states refer to the firefighter’s rule as the professional rescuer’s doctrine in order to encompass more professions than firefighters.  Moreover, like firefighters, law enforcement officers are employed at the taxpayers’ expense for the express purpose of dealing with such emergencies. The Court of Appeals reasoned it would be fundamentally unfair to allow a law enforcement officer to seek to recover damages from one who causes an automobile accident but deny this right to a firefighter injured while responding to the same accident. Thus, the Court of Appeals found that the public policy expressed in Calvert applies equally to firefighters and law enforcement officers when responding to a call for public safety functions.

Recognized Exceptions to the Firefighter’s Rule

Of the three exceptions to the firefighter’s rule recognized in Calvert, Officer Apodaca argued this case falls under two of them: (1) failure to warn of a known, hidden danger; and (2) engaging in a subsequent negligent or intentional act.  In addition, Officer Apodaca argued the Court should adopt a willful, wanton and reckless conduct exception to the firefighter’s rule not previously recognized by the Kansas Supreme Court.

Officer Apodaca argued Willmore failed to warn of a known, hidden danger by failing to inform the RCPD dispatcher that he had turned off the lights to the disabled pickup.  However, the record indicated that dispatch informed Officer Abodaca of the location of Willmore’s truck and that the vehicle was blocking the southbound lanes – the direction he was driving.  A review of the record also revealed the dispatcher informed Officer Abodaca that nobody at the scene was injured.  Thus, Officer Apodaca was adequately warned of the situation at the scene of the accident and there was no misrepresentation of the nature of the hazard, and thus, the exception of failing to warn of a known, hidden danger was inapplicable.

Officer Apodaca claimed Willmore engaged in a subsequent act of negligence by turning off the lights to his vehicle.  However, in discussing this exception to the firefighter’s rule in Calvert, the Kansas Supreme Court found that a firefighter is not barred from recovery “if the individual responsible for the fire fighter’s presence engages in subsequent acts of negligence or misconduct upon the arrival of the fire fighter at the scene.”  (Emphasis added.) Calvert, 236 Kan. at 576.  Here, Apodaca was arriving at the scene when he collided with Willmore’s vehicle, and Willmore had turned off his vehicle’s lights prior to the officers arriving on the scene.   Therefore, the Court of Appeals found the subsequent negligence exception was also inapplicable under the circumstances presented.

Willful, Wanton & Reckless Conduct

Officer Apodaca argued for the adoption of an additional exception to the firefighter’s rule not previously recognized by the Kansas Supreme Court.  Specifically, he asked the Court of Appeals to find that a firefighter or law enforcement officer is not barred from recovery if the person responsible for the act that required the presence of the officer at the scene engaged in willful, wanton, or reckless conduct.  Officer Apodaca raised this issue for the first time in his Motion for Reconsideration, and Officer Apodaca did not present any argument in an attempt to show that the district court abused its discretion in denying his motion to amend the judgment, nor did the record on appeal indicate Officer Apodaca ever alleged willful, wanton, or reckless conduct prior to the filing of his motion to amend judgment.  The Court of Appeals noted it may presume the Kansas Supreme Court would have mentioned such an exception in Calvert, since the decision appears to have offered a comprehensive list of exceptions found in other jurisdictions.  See 236 Kan. at 576-77.  Therefore, the Court of Appeals found the district court did not abuse its discretion in denying Officer Apodaca’s motion to amend judgment.


Finding the public policy underlying the firefighter’s rule in Kansas applied equally to law enforcement officers, the Kansas Court of Appeals extended application of the rule through its decision in Apodaca.  Though it would hardly be a surprise if Officer Apodaca files a Petition for Review by the Kansas Supreme Court, the reasoning set forth by the Court of Appeals appears sound.  Thus, short of subsequent reversal by the Kansas Supreme Court, or further legislative action to the contrary, it is fair to conclude Kansas has now joined the ranks of other states which have a professional rescuer’s doctrine by extending the application of the firefighter’s rule to law enforcement officers.

For a complete copy of the Apodaca opinion, click here.

Lawrence E. Nordling

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