JULIE A. ROBINSON, District Judge.
Plaintiffs Chester Peak, by and through his next friend and guardian, Gina Peak, Donald "Rex" Lowe, Justin D. Gibson, Justin T. Ehm, Danial A. Johnson, Nathan W. Roth and City of Kirwin, Kansas filed this personal injury and property damage action against Defendant Central Tank Coatings, Inc., seeking compensatory and punitive damages, alleging negligence, strict liability, negligent hiring, training, and retention and willful and wanton conduct. Plaintiff Chester Peak also seeks damages for loss of consortium. This case comes before the Court on Defendant's Motion for Summary Judgment (Doc. 90) and Plaintiffs' Motion for Summary Judgment (Doc. 92). The motions are fully briefed and the Court is prepared to rule. For the reasons stated below, the Court
The following facts are either uncontroverted, stipulated to, or viewed in a light most favorable to the nonmoving party. Plaintiffs Peak, Lowe, Gibson, Ehm, Johnson and Roth were volunteer firefighters (the "Firefighters") for the Kirwin Volunteer Fire Department. Defendant contracted with the City of Kirwin (the "City") to repair and repaint the City's water tower. Defendant assigned a group of workmen to perform the job on the water tower.
When the workmen arrived to perform the job, they brought Defendant's tractor trailer on site. A stack of paint thinner was located directly behind the trailer that had warning signs labeled, "Flammable Liquid." There was also a container box mounted on Defendant's trailer with various tools, paint thinner, and an oxygen/acetylene tank. The container box was not labeled with any signs or warnings as to its contents.
On July 13, 2010, the workmen worked on the roof of the water tower between 1:00 p.m. and 3:00 p.m. The workmen remained on the scene until 5:00 p.m. to weld new pieces for the roof of the water tower. At the time the workmen left the job site, they had not observed any fire or smoke. At 6:55 p.m. after two witnesses saw smoke coming from the roof of the water tower, they called for emergency assistance and the Firefighters were dispatched to the site. When the Firefighters arrived, the rear tires of the trailer were on fire and charred wooden materials appeared to have fallen from the water tower to the ground.
The Firefighters focused their efforts on extinguishing the trailer fire. Some Firefighters observed the stack of paint thinner with warning labels indicating that they contained flammable materials. Lowe had discussions with Johnson and Roth about the contents of the container box, which was padlocked. Lowe explained to Johnson and Roth that they should not cut the lock off of the container box because either the interior of the box could be ablaze, or opening the box could release heat and ignite a fire.
In the same area as the trailer, Roth observed the torch hoses and assumed they were connected to an oxygen/acetylene tank inside the container. Ehm knew that oxygen and acetylene combined could create an explosion and the presence of the hoses concerned him and Roth. Ehm stated that if he had seen the hoses prior to spraying the tires, he would have allowed the fire to burn out instead of extinguishing it. Gibson and Johnson did not recall seeing the torch hoses or warning labels.
The paint thinner buckets labeled as flammable and torch hoses connected to the container box prompted Larry Stones,
As the Firefighters retreated from the trailer, the container box exploded, injuring Peak and damaging the fire truck. Investigation reports from the Kansas State Fire Marshal and Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives concluded that the wood members of the roof of the water tower fell to the ground, igniting combustibles and the tires on the trailer. The reports also revealed that the paint thinner inside the container box likely provided the fuel for the explosion.
Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."
Defendant has the burden of proof on the affirmative defenses, and thus in moving for summary judgment on the affirmative defense, "[t]he defendant . . . must demonstrate that no disputed material fact exists regarding the affirmative defense asserted."
"Where, as here, the parties file cross motions for summary judgment, [the Court is] entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts."
Finally, summary judgment is not a "disfavored procedural shortcut;" on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."
Defendant moves for summary judgment on its affirmative defense that all of Plaintiffs' claims are barred by the Fireman's Rule. Conversely, Plaintiffs argue in their cross-motion that the Fireman's Rule does not apply to this action. The Court finds that Defendant is entitled to summary judgment because the Fireman's Rule precludes Plaintiffs' claims in their entirety.
Because the case arises under diversity jurisdiction, the "court's task is not to reach its own judgment regarding the substance of the common law, but simply to ascertain and apply the state law," which in this case is the law of Kansas.
In Calvert v. Garvey Elevators, Inc.,
Moreover, "[a] fire fighter only assumes hazards which are known and can be reasonably anticipated at the site of the fire and are a part of fire fighting."
Here, Defendant has established that the Fireman's Rule precludes recovery for its alleged role in causing the fire that injured Plaintiffs. It is undisputed that Defendant owned the trailer and the container box involved in the fire and subsequent explosion. Plaintiffs have not alleged that any parties, other than Defendant, were responsible for the fire. Plaintiffs cannot recover from Defendant for Defendant's alleged liability in creating the risk that necessitated their presence at the water tower construction site. Accordingly, the Court finds that the Fireman's Rule is applicable.
Still, Plaintiffs contend that exceptions to application of the Fireman's Rule apply. The Fireman's Rule does not apply to injuries caused by: (1) negligence or intentional acts by a third party, (2) individuals who fail to warn of known, hidden dangers or misrepresent the extent of hazard on their premises, or (3) misconduct or negligence by the individual responsible for the fire subsequent to the fireman's arrival on the scene.
Plaintiffs argue that Defendant is a negligent third party, while also alleging that Defendant caused the fire and explosion necessitating the Firefighters' presence. At the heart of the Fireman's Rule, is the protection of individuals who played the initial role in causing the fire. Plaintiff misunderstands what constitutes third parties under the Fireman's Rule. For purposes of applying the Fireman's Rule, parties whose conduct is not alleged to have negligently caused the fire are third parties. Accordingly, the Court finds that Defendant is not a negligent third party.
Relying on McKernan v. General Motors Corp.,
McKernan, unlike this case, was a products liability action against a party whose negligence did not lead to the firemen's presence, thus taking the defendant outside the protection of the Fireman's Rule as it was originally articulated by the Calvert court.
Plaintiffs next argue that Defendant failed to warn of any hidden and known dangers. But, surely the labels on the paint thinner cans, the very agent that investigations revealed likely caused the explosion injuring the Firefighters, warned that there were flammable materials on site. Indeed, Roth stated that the combination of the paint thinner with warning labels and torch hoses with potentially explosive contents, prompted Stones to call Defendant's workmen. Although Stones was unsuccessful in reaching the workmen before the explosion occurred, Roth and other Firefighters were concerned enough about the contents of the container box to discuss their concerns with each other and eventually follow Roth's direction to retreat. Even if some of the Firefighters had not read the warning labels and were not privy to the discussions about the container box, it was the duty of the Kirwin Volunteer Fire Department—not Defendant—to impart its knowledge of any potential dangerous conditions to its employees.
Plaintiffs also allege that Defendant acted negligently subsequent to the arrival of the Firefighters. Plaintiffs attempt to separate the fire into two events by claiming that the very wrong that initially required the Firefighters presence was the fire on the water tower. Plaintiffs argue that the fire on the trailer is an exception to application of the Fireman's Rule because it constitutes a separate and subsequent act of misconduct after their arrival on the scene. Plaintiffs' assertion is not supported by the record. For the party who caused the fire, the Fireman's Rule does not distinguish between negligent conduct that caused a fire where the conduct is not independent of the risk that caused a fireman's presence at the scene.
Finally, to the extent that Plaintiff argues that the Fireman's Rule can only be applied to its negligence claims, the Court also disagrees. Kansas courts have not had the occasion to resolve whether the Fireman's Rule only applies to negligence claims. This Court must look to the rulings of the state's highest court and, where no controlling state decision exists, it must endeavor to predict how the state's highest court would rule.
The Court finds that the Kansas Supreme Court would find that the Fireman's Rule is a complete bar to all of Plaintiffs' claims. Excluding simple negligence, Plaintiffs assert three other theories of recovery: strict liability, negligent hiring, and willful, wanton, and/or reckless misconduct.
