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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Moody v. Delta Western, Inc. (01/11/2002) sp-5522

Moody v. Delta Western, Inc. (01/11/2002) sp-5522

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878, e-mail


BRENT MOODY,                  )
                              )    Supreme Court No. S-9625
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3DI-98-63 CI
DELTA WESTERN, INC.,          )    O P I N I O N
             Appellee.        )    [No. 5522 - January 11, 2002]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Dillingham, Elaine M. Andrews,

          Appearances:  Kristen D. Pettersen, Ray R.
Brown, Dillon & Findley, P.C., Anchorage, for Appellant.  Richard
A. Weinig, Pletcher, Weinig, Fisher & Dennis, Anchorage, for
Appellee.  William B. Aitchison, Aitchison & Vick, Inc., Portland,
Oregon, for Amicus Curiae Anchorage Police Department Employees

          Before:  Fabe, Chief Justice, Matthews,
          Eastaugh, and Bryner, Justices.  [Carpeneti,
Justice, not participating.]

          MATTHEWS, Justice.

          The question in this case is whether the so-called
Firefighter's Rule applies in Alaska.  The Firefighter's Rule holds
that firefighters and police officers who are injured may not
recover based on the negligent conduct that required their
presence.  For public policy reasons we join the overwhelming
majority of states that have adopted the rule.  
          The facts of this case are undisputed.  On or around July
25, 1996, a Delta Western employee left a fuel truck owned by Delta
Western in a driveway in Dillingham.  The keys were in the
ignition, the door was unlocked, and the truck contained fuel and
weighed over 10,000 pounds.  Delta Western had a policy of removing
the keys from the ignitions of its trucks.  Delta Western enacted
this policy because of past incidents involving the theft and
unauthorized entry of its trucks. 
          Joseph Coolidge, who was highly intoxicated, entered the
unlocked truck and proceeded to drive around Dillingham.  He ran
cars off the road, nearly collided with several vehicles, and drove
at speeds exceeding seventy miles per hour.  Brent Moody, the chief
of the Dillingham Police Department, was one of the officers who
responded to the reports of the recklessly driven fuel truck.  The
driver of the van in which Moody was a passenger attempted to stop
the truck after moving in front of it, but Coolidge rammed the van,
throwing Moody against the dashboard and windshield.  Moody
suffered permanent injuries. 
          Moody filed suit against Delta Western, alleging that the
company (through its employee) negligently failed to remove the
truck's keys from the ignition.  In its amended answer, Delta
Western argued that the "Firefighter's Rule" barred Moody's cause
of action.  Delta Western moved for summary judgment based on its
Firefighter's Rule defense.  The superior court granted Delta
Western's motion, holding that the Firefighter's Rule bars police
officers from recovering for injuries caused by the "negligence
which creates the very occasion for their engagement." 
          Moody now appeals. 
          The question presented is one of law and of first
impression:  whether Alaska should adopt the Firefighter's Rule. 
We therefore apply the de novo standard of review,  "adopt[ing] the
rule of law which is most persuasive in light of precedent, reason
and policy." [Fn. 1]
          Nearly all of the courts that have considered whether or
not to adopt the Firefighter's Rule have in fact adopted it. [Fn.
2]  Only one court has rejected it. [Fn. 3]  The New Jersey Supreme
Court's reasoning in Berko v. Freda is typical of that of modern
courts that have adopted the rule. [Fn. 4]  The superior court
relied on Berko and explained the case as follows: 
          In Berko, the defendant parked a Cadillac in a
supermarket parking lot and left the keys in the ignition.  Two
juveniles stole the car and engaged in a high-speed chase with
Officer Berko.  The officer was injured while apprehending the
juveniles and brought suit against the owner of the vehicle for
negligence in leaving the keys in the ignition.  The New Jersey
Supreme Court held that, notwithstanding its finding that the car
owner was negligent, the Firefighter's Rule insulated him from
liability of the officer.  The court stated:
               Both [firefighters and police
officers] are paid to confront crises and allay dangers by an
uncircumspect citizenry, a circumstance that serves to distinguish
firefighters and police from most other public employees.  Citizens
summon police and firefighters to confront danger.  Government
entities maintain police and fire departments in anticipation of
those inevitable physical perils that burden the human condition,
whereas most public employment posts are created not to confront
dangers that will arise but to perform some other public function
that may incidentally involve risk . . . [.]

               This fundamental concept rests on
the assumption that government entities employ firefighters and
police officers, at least in part, to deal with the hazards that
may result from their taxpayers' own future acts of
negligence. . . [.]  Exposing the negligent taxpayer to liability
for having summoned police would impose upon him multiple burdens
for that protection.
               There is at work here a public
policy component that strongly opposes the notion that an act of
ordinary negligence would expose the actor to liability for
injuries sustained in the course of a public servant's performance
of necessary, albeit hazardous, public duties.  In absence of a
legislative expression of contrary policy, a citizen should not
have to run the risk of a civil judgment against him for negligent
acts that occasion the presence of a firefighter at the scene of a
carelessly set fire or of a police officer at a disturbance or
unlawful incident resulting from negligent conduct.[ [Fn. 5]]
          Jurisdictions adopting the Firefighter's Rule emphasize
its narrowness; the doctrine bars only recovery for the negligence
that creates the need for the public safety officer's service. [Fn.
6]  Thus the Firefighter's Rule does not apply to negligent conduct
occurring after the police officer or firefighter arrives at the
scene or to misconduct other than that which necessitates the
officer's presence. [Fn. 7]  Such misconduct may include failure to
warn of pre-existing known but hidden dangers. [Fn. 8]
          Modern courts stress interrelated reasons, based on
public policy, for the rule.  The negligent party is said to have
no duty to the public safety officer to act without negligence in
creating the condition that necessitates the officer's intervention
because the officer is employed by the public to respond to such
conditions and receives compensation and benefits for the risks
inherent in such responses.  Requiring members of the public to pay
for injuries resulting from such responses effectively imposes a
double payment obligation on them.  Further, because negligence is
at the root of many calls for public safety officers, allowing
recovery would compound the growth of litigation. [Fn. 9] 
          Courts find an analogy in cases in which a contractor is
injured while repairing the condition that necessitated his
employment. [Fn. 10]  In these cases, the owner is under no duty to
protect the contractor against risks arising from the condition the
contractor is hired to repair, and thus is not liable even if the
condition was the product of the owner's negligence. [Fn. 11]  This
"contractor for repairs" exception to the general duty of reasonable
care is grounded in necessity and fairness. [Fn. 12]  Property
owners should not be deterred by the threat of liability to the
contractor from summoning experts to repair their property,
regardless of why repairs are needed.  Further, owners have paid
for the contractor's expertise at confronting the very danger that
injured him and should not have to pay again if the contractor is
then injured. [Fn. 13]  The same factors are found to apply with
respect to the public's need to call for the services of public
safety officers. [Fn. 14] 

          We agree with the reasoning of the modern courts and with
the analogy to contractor cases.  The Firefighter's Rule reflects
sound public policy.  The public pays for emergency responses of
public safety officials in the form of salaries and enhanced
benefits. [Fn. 15]  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. 
Further, negligence is a common factor in emergencies that require
the intervention of public safety officers.  Allowing recovery
would cause a proliferation of litigation aimed at shifting to
individuals or their insurers costs that have already been widely
shared.  To borrow the language of the seminal Krauth case, "in the
final analysis the policy decision is that it would be too
burdensome to charge all who carelessly cause" conditions requiring
a response by a public safety official "with the injuries suffered
by the expert retained with public funds to deal with those
inevitable, although negligently created," conditions. [Fn. 16]
          We thus conclude that the Firefighter's Rule applies in
Alaska.  We reach this conclusion based on the merits of the rule
as accepted by the overwhelming majority of the courts of our
sister states.  It follows that summary judgment was properly


Footnote 1:

     Newton v. Magill, 872 P.2d 1213, 1215 (Alaska 1994) (quoting
Ford v. Municipality of Anchorage, 813 P.2d 654, 655 (Alaska

Footnote 2:

     See Grable v. Varela, 564 P.2d 911, 912 (Ariz. App. 1977);
Waggoner v. Troutman Oil Co., 894 S.W.2d 913, 915 (Ark. 1995);
Walters v. Sloan, 571 P.2d 609, 610 (Cal. 1977) (abolished by Cal.
Civil Code sec. 1714.9); Kaminski v. Town of Fairfield, 578 A.2d
1053 (Conn. 1990); Carpenter v. O'Day, 562 A.2d 595, 601 (Del.
Super. 1988), aff'd, 553 A.2d 638 (Del. 1988); Kilpatrick v. Sklar,
548 So. 2d 215, 216-18 (Fla. 1989) (limited by Fla. Stat. Ann.
sec. 112.182); Martin v. Gaither, 466 S.E.2d 621, 624 (Ga. App.
1995); Thomas v. Pang, 811 P.2d 821, 824 (Haw. 1991); Winn v.
Frasher, 777
P.2d 722, 725 (Idaho 1989); Court v. Grzelinski, 379 N.E.2d 281,
285 (Ill. 1978) (rule employed in premises liability cases); Sports
Bench, Inc. v. McPherson, 509 N.E.2d 233, 234-35 (Ind. App. 1987);
Pottebaum v. Hinds, 347 N.W.2d 642, 643 (Iowa 1984); Calvert v.
Garvey Elevators, Inc., 694 P.2d 433, 438 (Kan. 1985); Sallee v.
GTE South, Inc., 839 S.W.2d 277, 279 (Ky. 1992); Holloway v.
Midland Risk Ins. Co., 759 So. 2d 309, 313-14 (La. App. 2000);
Flowers v. Rock Creek Terrace Ltd., 520 A.2d 361, 368 (Md. 1987);
Wynn v. Sullivan, 3 N.E.2d 236, 237 (Mass. 1936) (limited by Mass.
Gen. Laws ch. 41 sec.sec. 100, 111F); Kreski v. Modern Wholesale
Supply Co., 415 N.W.2d 178, 188-89 (Mich. 1987) (abolished by
M.C.L. sec.sec. 600.2965-.2967); Armstrong v. Mailand, 284 N.W.2d
350 (Minn. 1979) (abolished by Minn. Stat. sec. 604.06); Phillips
Hallmark Cards, Inc., 722 S.W.2d 86, 89 (Mo. 1986); Nared v. School
Dist. of Omaha, 215 N.W.2d 115, 117-18 (Neb. 1974); Moody v.
Manny's Auto Repair, 871 P.2d 935, 940 (Nev. 1994) (limited by Nev.
Rev. Stat. sec.  41.139); Matarese v. Nationwide Mut. Ins. Co., 682
A.2d 258, 258-61 (N.H. 1996); Krauth v. Geller, 157 A.2d 129, 132-
33 (N.J. 1960) (abolished by N.J. Stat. Ann. sec. 2A:62A-21);
v. Marrs, 695 P.2d 1322, 1325 (N.M. App. 1984); Santangelo v.
State, 521 N.E.2d 770, 772 (N.Y. 1988) (limited by Gen. Mun. sec.
205-a ,-e; Gen. Oblig. sec. 11-106); Schuerer v. Trustees of Open
Church, 192 N.E.2d 38, 43 (Ohio 1963); Smith v. Tully, 665 A.2d
1333, 1335 (R.I. 1995); Carson v. Headrick, 900 S.W.2d 685, 690
(Tenn. 1995); Campus Mgmt., Inc. v. Kimball, 991 S.W.2d 948, 950
(Tex. App. 1999) (rule employed in premises liability cases only);
Commonwealth v. Millsaps, 352 S.E.2d 311, 315-16 (Va. 1987);
Maltman v. Sauer, 530 P.2d 254, 257 (Wash. 1975); Hass v. Chicago
& N.W. Ry. Co., 179 N.W.2d 885, 887-88 (Wis. 1970). 

Footnote 3:

     See Christensen v. Murphy, 678 P.2d 1210, 1218 (Or. 1984).

Footnote 4:

     459 A.2d 663 (N.J. 1983).

Footnote 5:

     Moody v. Delta W., Inc., No. 3DI-98-63 CI (Alaska Super.,
February 7, 2000) (quoting Berko, 459 A.2d at 666-67 (alteration in

Footnote 6:

     See, e.g., Kreski, 415 N.W.2d at 183.

Footnote 7:

     See Neighbarger v. Irwin Indus., Inc., 882 P.2d 347, 352 (Cal.
1994); see also Gail v. Clark, 410 N.W.2d 662, 666 (Iowa 1987)
(holding firefighter's rule does not bar recovery where police
officer is injured while performing a law enforcement activity
unrelated to violation that necessitated his presence at the
scene); Kreski, 415 N.W.2d at 189 (recognizing exceptional cases,
such as those involving willful misconduct, in which courts have
refused to apply firefighter's rule to bar action; similarly
adopting flexible approach to address "different fact patterns as
they are presented").

Footnote 8:

     See Flowers, 520 A.2d at 369.

Footnote 9:

     See Krauth, 157 A.2d at 131 ("[I]n the final analysis the
policy decision is that it would be too burdensome to charge all
who carelessly cause or fail to prevent fires with the injuries
suffered by the expert retained with public funds to deal with
those inevitable, although negligently created, occurrences.");
Walters, 571 P.2d at 613 ("[A]bolition of the fireman's rule would
burden our courts with litigation among the employer public agency,
the retirement system, and the negligence insurer.").

Footnote 10:

     See, e.g., Krauth, 157 A.2d at 131.

Footnote 11:

     See, e.g., Peters v. Titan Navigation Co., 857 F.2d 1342, 1345
(9th Cir. 1988) (affirming summary judgment for shipowner regarding
claims brought by hydraulic system repairman who was injured after
slipping on spilled hydraulic fluid, because owner owes no duty to
protect repairman from risks inherent in very condition he was
hired to repair); see also 41 Am. Jur. 2d, Independent Contractors
sec. 41, n. 74 (1995) and the cases there cited.  

Footnote 12:

     See Palenscar v. Michael J. Bobb, Inc., 266 A.2d 478, 481 (Pa.
1970) ("It would be unjust to find that [the owner was negligent
because he] should have repaired the system, and yet hold the
company liable to one who had been employed to do exactly that.").

Footnote 13:

     See id. at 480-81; see also Anicet v. Gant, 580 So. 2d 273,
276 (Fla. App. 1991) (describing contractor cases, where "the
employee is deemed not to be entitled to a tort recovery arising
from a condition for the encountering and correction of which he is
specifically paid").

Footnote 14:

     See Krauth, 157 A.2d at 131:
          [I]t is the fireman's business to deal with
[fire] hazard and hence, perhaps by analogy to the contractor
engaged as an expert to remedy dangerous situations, he cannot
complain of negligence in the creation of the very occasion for his
engagement.  In terms of duty, it may be said there is none owed
the fireman to exercise care so as not to require the special
services for which he is trained and paid.  
          Cf. Anicet, 580 So. 2d at 276 (denying mental institution
worker recovery for injuries inflicted by violently insane person;
analogizing to contractor cases, and also noting that the
firefighter's rule, which at its core provides that "a person
specifically hired to encounter and combat particular dangers is
owed no independent tort duty by those who have created those
dangers   even though . . . the landowner or other defendant is
actually guilty of negligence or of other fault in creating the
dangers," presents "an apt analogy").

Footnote 15:

     See AS 39.35.010-.690 (Public Employees Retirement System);
AMC 03.85.010-.180 (Death, Disability and Retirement Benefits for
Anchorage Police Officers & Firefighters).

Footnote 16:

     157 A.2d at 131.