# Bath Excavating & Construction Co. v. Wills

> Supreme Court of Colorado · March 15, 1993 · 17 Brief Times Rptr. 438

URL: https://www.frixlaw.com/law-library/cases/9793276

## Case

- **Full name:** BATH EXCAVATING & CONSTRUCTION CO., and Hahn Plumbing & Heating, Inc., Petitioners, v. Norman WILLS and Jeanie Wills, Respondents
- **Court:** Supreme Court of Colorado
- **Decided:** March 15, 1993
- **Citations:** 17 Brief Times Rptr. 438; 847 P.2d 1141; 1993 Colo. LEXIS 188; 1993 WL 69599
- **Precedential status:** Published
- **Opinion:** Dissent by Vollack
- **Judges:** Erickson, Vollack, Rovira
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Justice VOLLACK
dissenting:
The majority declines to “sua sponte adopt a no-duty fireman’s rule in this case because [it is] convinced that the underlying rationale of cases from other states that have adopted such a rule would not extend to a water department worker.” Maj. op. at 12. I disagree. Rather, I find that the rationales supporting the acceptance and application of a public safety worker rule in other jurisdictions dictate that we adopt and apply such a rule in the present case. Additionally, I find that the majority’s recognition of a duty owed in this case amounts to imposition of liability as a matter of law. I respectfully dissent.
I.
We granted certiorari to determine “whether the court of appeals erred in concluding that the ‘fireman’s rule’ has been rejected in Colorado, and, if so, whether respondent Norman Wills, a city water department employee, is subject to the [rule].” A discussion of the rationales on which other state courts rely as a contemporary basis for the public safety worker rule reveals that this court should adopt and apply a public safety worker rule in this case. Additionally, adoption of such a rule is not inconsistent with this court’s holding in Mile High Fence Co. v. Radovich, 175 Colo. 537 , 489 P.2d 308 (1971). I would conclude that a public safety worker rule would encompass the respondent Norman Wills (Wills), a Water Systems Operator whose job duties at the time of the accident were to repair ruptured water lines.
A.
The Public Safety Worker Rule
The “fireman’s” rule prevents professional fire fighters from “recoverpng] damages from a private party for injuries he [or she] sustained during the course of putting out a fire even though [a] private party’s negligence may have caused the fire and injury.” Thomas v. Pang, 72 Haw. 191 , 811 P.2d 821, 823 (1991). It is well settled that a majority of jurisdictions have adopted some form of this rule. Bycom Corp. v. White, 187 Ga.App. 759 , 371 S.E.2d 233, 234 (1988) (stating that the fireman’s rule is universally accepted); Thomas, 811 P.2d at 823 (stating that a majority of jurisdictions that have considered the rule have adopted some version of it); Winn v. Frasher, 116 Idaho 500 , 777 P.2d 722, 724 (1989) (recognizing that a great majority of states accept the rule); Pottebaum v. Hinds, 347 N.W.2d 642, 644 (Iowa 1984) (stating that almost all jurisdictions have adopted some version of the rule); Calvert v. Garvey Elevators, Inc., 236 Kan. 570 , 694 P.2d 433, 436-38 (Kan.1985) (noting that almost all jurisdictions have adopted some version of the rule); Kreski v. Modern Wholesale Elec. Supply Co., 429 Mich. 347 , 415 N.W.2d 178, 183 (1987) (stating that an overwhelming number of courts have favored adopting the rule); Rosa v. Dunkin’ Donuts of Passaic, 122 N.J. 66 , 583 A.2d 1129 (1991) (acknowledging that the rule is followed throughout the country); Mignone v. Fieldcrest Mills, *1150 556 A.2d 35, 37-40 (R.I.1989) (stating that the rule is almost universally accepted across the nation); see Von Beltz v. Stuntman, Inc., 207 Cal.App.3d 1467 , 255 Cal.Rptr. 755, 761 (1989) (relying on Hubbard v. Boelt, 28 Cal.3d 480 , 169 Cal.Rptr. 706 , 620 P.2d 156 (1980)); Furstein v. Hill, 218 Conn. 610 , 590 A.2d 939, 942-45 (1991); Young v. Sherwin-Williams Co., 569 A.2d 1173, 1175-79 (D.C.1990); Lanza v. Polanin, 581 So.2d 130, 131-33 (Fla.1991); Coglianese v. Mark Twain Ltd. Partnership, 171 Ill.App.3d 1 , 120 Ill.Dec. 849, 850 , 524 N.E.2d 1031, 1032 , appeal denied, 122 Ill.2d 571 , 125 Ill.Dec. 213 , 530 N.E.2d 241 (1988); Koehn v. Devereaux, 495 N.E.2d 211, 215 (Ind.Ct.App.1986); Hawkins v. Sunmark Indus., Inc., 121 S.W.2d 397, 400 (Ky.1986); Flowers v. Rock Creek Terrace Ltd. Partnership, 308 Md. 432 , 520 A.2d 361, 364-69 (1987); Griffiths v. Lovelette Transfer Co., 313 N.W.2d 602, 604-05 (Minn.1981); Krause v. U.S. Truck Co., 787 S.W.2d 708, 711-13 (Mo.1990); Moravec v. Moravec, 216 Neb. 412 , 343 N.W.2d 762, 764 (Neb.1984); Steelman v. Lind, 97 Nev. 425 , 634 P.2d 666, 667 (1981); Santangelo v. State, 71 N.Y.2d 393 , 526 N.Y.S.2d 812, 813-14 , 521 N.E.2d 770, 771-72 (1988), superseded by statute as stated in Sharkey v. Mitchell’s Newspaper Delivery, Inc., 165 A.D.2d 664 , 560 N.Y.S.2d 140 (1990); Maltman v. Sauer, 84 Wash.2d 975 , 530 P.2d 254, 257 (1975).
The rule originated in common-law concepts of landowner liability, under which courts determined that fire fighters held the status of bare licensees. As such, landowners owed only a duty not to wilfully or wantonly injure fire fighters. See Furstein, 590 A.2d at 943 (quoting Dini v. Naiditch, 20 I11.2d 406, 413, 170 N.E.2d 881 (1960)) (“[T]he rule had its origins in a social system in which ‘the landowner was sovereign within his own boundaries’ and owed a licensee only the duty not to injure him wilfully or wantonly.”); Young, 569 A.2d at 1175 (noting that the rule originally developed in the context of landowner liability law); Thomas, 811 P.2d at 823 (noting that, historically, the rule was explained in the context of landowner liability, where firemen were classified as licensees); Winn, 111 P.2d at 724 (noting that landowners only owe fire fighters a duty not to act wilfully or wantonly); Flowers, 520 A. 2d at 364 (stating that the history of the rule focused on the status of fire fighters on the premises); Kreski, 415 N.W.2d at 183 (stating that the rule premised liability on the basis of traditional status categories of entrants upon property of another); Krause, 787 S.W.2d at 711 (noting that the early cases involved traditional status categories of entrance upon the property of another); Steelman, 634 P.2d at 667 (stating that the origins of the rule stem from the duty owed by an owner or occupier of land to one who enters upon the land); Santangelo, 526 N.Y.S.2d at 813 , 521 N.E.2d at 771 (recognizing the common-law rationale for the rule as based on fire fighters’ status as licensees); Mignone, 556 A.2d at 37-38 (recognizing that early cases were premised on antiquated property concepts of entrant classifications). Thus, the Iowa Supreme Court has stated:
Historically, the rule arose in the context of the differing duties owed by a landowner or occupier to individuals coming on his land. Since a policeman or fireman was privileged to enter land pursuant to his public duties and could come on property any place or time, courts classified them as bare licensees and held the only duty owed these public servants was to not wantonly or willfully injure them.
Pottebaum, 347 N.W.2d at 644 . The common-law paradigm has, however, been rejected as a contemporary basis for the rule, in part because fire fighters no longer fit neatly into the status category of licensees, and because many jurisdictions have abolished entrant classifications as defining the duty of care owed by a landowner. Furstein, 590 A.2d at 943 ; Thomas, 811 P.2d at 823 ; Pottebaum, 347 N.W.2d at 644-45 ; Flowers, 520 A.2d at 366-67 ; Kreski, 415 N.W.2d at 183-84 ; Krause, 787 S.W.2d at 711-12 ; Mignone, 556 A.2d at 38 .
Courts have in turn recognized that the primary assumption of risk theory and considerations of public policy support adoption of a public safety worker rule. The *1151 primary assumption of risk theory bars public safety workers from filing lawsuits on the ground that they perform work which is inherently hazardous; accordingly, individuals who accept public safety employment assume the risks entailed therein. Furstein, 590 A.2d at 943 ; Young, 569 A.2d at 1175 ; Gillespie v. Washington, 395 A.2d 18, 20 (D.C.1978); Bycom Corp., 371 S.E.2d at 234 ; Thomas, 811 P.2d at 824 ; Winn, 111 P.2d at 724; Pottebaum, 347 N.W.2d at 645 ; Calvert, 694 P.2d at 437 ; Flowers, 520 A.2d at 367-68 ; Kreski, 415 N.W.2d at 184-85 ; Griffiths, 313 N.W.2d at 605 ; Krause, 181 S.W.2d at 711-12; Rosa, 583 A.2d at 1131 ; Santangelo, 526 N.Y.S.2d at 813 , 521 N.E.2d at 771 ; Mignone, 556 A.2d at 38 .
Courts have additionally premised contemporary acceptance of a public safety worker rule on considerations of public policy. In this context, courts have identified public policy as encompassing several rationales: (1) The public hires, trains, and compensates public safety workers to contend with dangerous situations; the public should not be liable for injuries to public employees resulting from the very work they were hired to perform; (2) Society has acknowledged the hazardous nature of the work performed by public safety workers through specially enacted benefits such as worker’s compensation; (3) Permitting public safety officers to recover in tort imposes a duplicative burden on taxpayers who already pay taxes in order to receive such services; (4) The rule prevents a proliferation of lawsuits; and (5) The rule encourages rather than discourages citizens to summon public safety services when needed. Furstein, 590 A.2d at 943-45 ; Young, 569 A.2d at 1178-79 ; Gillespie, 395 A.2d at 20 ; Lanza, 581 So.2d at 132 ; Bycom Corp., 371 S.E.2d at 234-35 ; Thomas, 811 P.2d at 824-25 ; Winn, 111 P.2d at 725; Pottebaum, 347 N.W.2d at 645-46 ; Calvert, 694 P.2d at 438 ; Hawkins, 727 S.W.2d at 400; Flowers, 520 A.2d at 368 ; Kreski, 415 N.W.2d at 186-89 ; Krause, 787 S.W.2d at 712 ; Steelman, 634 P.2d at 667 ; Rosa, 583 A.2d at 1131-33 ; Santangelo, 526 N.Y.S.2d at 813-14 , 521 N.E.2d at 771-72 ; Mignone, 556 A.2d at 39 .
At least one court has recognized that the rule is premised on common sense, insofar as the rule prevents public safety officers from recovering damages in tort for performance of their jobs, which they were already obligated to perform and for which they previously received compensation. Kreski, 415 N.W.2d at 183 (“The fireman’s rule is based on practicability and common sense.... [The rule states] that a fire fighter or police officer may not recover damages from a private party for negligence in the creation of the reason for the safety officer’s presence.”).
In determining whether a contemporary version of the rule should be adopted and operate to bar a public safety worker from filing suit, many courts have examined both the nature of the service provided by the public safety officer’s work, and the relationship of the officer to the public. 1 Thomas , 811 at 824-25 (finding that fire fighters provide a service that entails confronting danger, and that the public relies on them to do so); Winn, 111 P.2d at 725 (relying on Kreski, 415 N.W.2d at 186-87 ); Flowers, 520 A.2d at 368 ; Kreski, 415 N.W.2d at 186 (“The policy arguments for adopting a fireman’s rule stem from the nature of the service provided by fire fighters and police officers, as well as the relationship between these safety officers and the public they are employed to protect.”). In concluding that a contemporary version of the rule applied to fire fighters and police officers, the Missouri Supreme Court stated that the rule applied to “the official whose primary public duty is to confront danger.” Krause, 787 S.W.2d at 713 .
The public policy rationales discussed provide a useful backdrop against which to *1152 evaluate whether Colorado should endorse a contemporary version of the public safety worker rule. Analysis of public policy rationales and the factors upon which courts determine the existence of a duty dictates that a public safety worker rule should be adopted in the present case.
B.
Colorado Law
As the majority notes, in 1910, this court classified fire fighters as licensees when a surviving spouse filed an action against a building occupant after the deceased spouse, a fire fighter, sustained fatal injuries while responding to an alarm in the building. Lunt v. Post Printing and Publishing Co., 48 Colo. 316 , 110 P. 203 (1910). This court recognized that “[t]he firemen are on the premises, not in discharge of any private duty due from them to the occupant, but of a public duty which they owe to the public.” Id. at 325, 110 P. at 206. This court concluded that the deceased fire fighter entered the building “in the character of a licensee, under circumstances and conditions requiring [the fire fighter’s] presence in the discharge of his duties.” Id. at 329, 110 P. at 207. This court sustained the dismissal of the complaint.
As the majority notes, this court abolished common-law classifications of entrants on land of another in Mile High Fence Co. v. Radovich, 175 Colo. 537 , 489 P.2d 308 (1971). We premised our rejection of the common-law categories of trespasser, licensee, and invitee in part on the fact that “[r]igid adherence to common law classifications results in the resolution, in many instances, of the owner’s liability as a matter of law.” Id. at 543 , 489 P.2d at 312 . We reaffirmed our rejection of the common-law categories in Gallegos v. Phipps, 779 P.2d 856, 860-61 (Colo.1989), wherein we found that a statute creating categories as a basis of landowner liability violated constitutional guarantees of equal protection. Our consistent rejection of the common-law scheme, however, does not prevent us from endorsing a public safety worker rule in the present case. See Thomas, 811 P.2d at 824-25 (noting that Hawaii has abolished the distinctions between classes of entrants upon land, but adopted a rule based on public policy); Kreski, 415 N.W.2d at 184 n. 9 (stating that rejection of status categories in no way impedes application of a fire fighter rule); Mignone, 556 A.2d at 37-38 (declining to reject fire fighter’s rule on ground that court rejected antiquated status categories). Public policy considerations warrant recognition of a public safety worker rule in the present case.
We have consistently recognized that the existence of a duty poses a question of law to be determined by the court. Connes v. Molalla Transport System, Inc., 831 P.2d 1316, 1320 (Colo.1992) (relying on Casebolt v. Cowan, 829 P.2d 352, 356 (Colo.1992)); Observatory Corp. v. Daly, 780 P.2d 462, 466 (Colo.1989) (relying on Metropolitan Gas Repair Serv. v. Kulik, 621 P.2d 313, 317 (Colo.1980)). In evaluating whether to impose a duty, courts consider the practical consequences of placing such a burden on the defendant, and the burden of guarding against the harm caused to the plaintiff. Connes, 831 P.2d at 1320 . Courts also consider any additional elements disclosed by the particular circumstances of each case. Id. “ ‘No one factor is controlling, and the question of whether a duty should be imposed in a particular case is essentially one of fairness under contemporary standards — whether reasonable persons would recognize a duty and agree that it exists.’ ” Id. (quoting Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46 (Colo.1987)). “ ‘A court’s conclusion that a duty does or does not exist is “an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is [or is not] entitled to protection.” ’ ” Id. (quoting University of Denver v. Whitlock, 744 P.2d 54, 57 (Colo.1987) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 358 (5th ed. 1984))).
The practical consequences of imposing liability on defendants in actions filed by public safety workers implicate the public policy rationales relied on in other jurisdictions. Imposition of liability discourages *1153 citizens from summoning public safety services. Imposition of liability additionally subjects taxpayers to paying a second time for a service that tax dollars previously funded. Further, those public safety workers who sustain injuries in the course of executing their duties may receive special compensation, such as worker’s compensation. The burden of guarding against the harm to the plaintiff-public service worker in this case is best placed on the public safety worker, who is trained to confront the hazards that their safety employment entails.
Public safety workers should be barred from bringing suits in cases where the circumstances underlying the action are the same as those requiring the public safety worker to perform their duties in the first instance. The balance of these factors dictates that we adopt a public safety worker rule in Colorado. The majority, however, declines to address whether we should reach this issue because “such a rule would not extend to a water department worker.” Maj. op. at 1146. I would conversely conclude that a public safety worker rule would encompass a Water Systems Operator whose primary duty is to repair ruptured water lines.
C.
The Scope of the Public Safety Worker Rule
In the present case, Wills’ supervisor, Terry Popejoy (Popejoy), testified that Wills was a Water Systems Operator, and that water systems operators’ job responsibilities are to perform manual repair work on water lines. Popejoy testified that private persons who rupture water lines are legally required to seek the assistance of the City in repairing the line. Popejoy also testified that water systems operators receive training regarding the hazards of excavation of sites, including shoring school, certification testing, and other classes.
Wills’ primary public duty, as a Water Systems Operator employed by the City of Fort Collins, is to confront the dangers posed by repairing ruptured water lines. 2 Like fire fighters, employees sharing Wills’ public duties are the only parties on whom private persons can rely to repair such lines. In this context, a water systems operator performs a vital and unique role. A public safety worker rule should govern the facts of this case and relieve Bath Excavating from liability, as owing no duty to Wills.
The majority, however, concludes that, based on these facts, Bath Excavating owes Wills a common-law duty “to act with reasonable care to avoid injury in excavating to lay water lines.” Maj. op. at 1148. This conclusion imposes liability on landowners under all circumstances where the landowner must rely on the assistance of a public safety worker to respond to an emergency on private land. The public safety worker is summoned precisely for the reason that an emergency exists, and, after arrival, the public safety worker assumes control over the affected private property. The landowner may then be liable for any injuries the public safety worker sustains while on private land. The majority’s conclusion prevents this court from examining whether Colorado should adopt a public safety worker rule.
II.
Accordingly, I dissent and would reverse the court of appeals, and remand the case with instructions to reinstate the district court order granting summary judgment in favor of Bath Excavating.
I am authorized to say that Chief Justice ROVIRA joins in this dissent.
. I am not persuaded that a public safety worker rule should only be triggered when a public servant bearing the literal job title of either "police officer” or "fire fighter” has filed suit. Conversely, the complexity of contemporary society indicates that a better-reasoned approach to identifying the cases in which the rule appropriately applies turns on evaluation of the service performed by the public safety worker and on consideration of whether private entities perform the same service.
. Even the majority concedes that “[t]he unrestrained flow of water poses a danger to the property and physical well-being of individuals, in addition to disrupting a vital service." Maj. op. at 1148.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9793276. Public record. Not legal advice.