Norfolk S. Ry. Co. v. Johnson

554 S.W.3d 315
CourtMissouri Court of Appeals
DecidedAugust 16, 2018
Docket2016-SC-000248-DG
StatusPublished
Cited by6 cases

This text of 554 S.W.3d 315 (Norfolk S. Ry. Co. v. Johnson) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norfolk S. Ry. Co. v. Johnson, 554 S.W.3d 315 (Mo. Ct. App. 2018).

Opinion

OPINION OF THE COURT BY JUSTICE WRIGHT

Appellant, Sharon Johnson, was employed by the Danville Police Department as a patrol officer. Johnson fell down an embankment and was injured while pursuing a suspect on foot. Johnson brought suit against Norfolk Southern Railway Company and Centre College.1 The circuit court granted a directed verdict in favor of Norfolk Southern, finding that the Fireman's Rule bars Johnson's recovery as a matter of law. Johnson appealed that verdict to the Court of Appeals. The Court of Appeals reversed and remanded to the circuit court, holding that the Fireman's Rule did not bar Johnson's claim. Because we agree with the circuit court that the Fireman's Rule bars Johnson's claim, we reverse the Court of Appeals and reinstate the circuit court's ruling directing a verdict in favor of Norfolk Southern.

I. BACKGROUND

On June 16, 2011, Johnson responded to a dispatch call regarding an individual on Dillehay Street who "was possibly intoxicated, maybe on something" and was "stripping his clothes off and walking up towards the stockyards." Sergeant Chris Matano also responded to the dispatch call. Once on the scene, Matano and Johnson pursued the suspect on foot. The foot pursuit led to a tree line and embankment located on Norfolk Southern's property. Matano was in front of Johnson in the pursuit, and descended the embankment without issue. However, this was not the case for Johnson. She fell to the bottom of the embankment, injuring her wrist and eye as a result of the fall. Johnson acknowledged that the embankment was a natural condition, not caused by Norfolk Southern.

Matano, having descended the embankment safely, placed the suspect into custody. Upon realizing Johnson had fallen, Matano contacted dispatch and requested emergency medical services.

Johnson filed suit against Norfolk Southern, claiming the embankment was a dangerous condition on its premises and that the company is liable to her for the fall. Norfolk Southern moved for a directed verdict based upon the common-law *317Firefighter's Rule and the open-and-obvious danger defense. The circuit court concluded that Johnson's claim was barred by the Firefighter's Rule and granted Norfolk Southern's motion. Johnson appealed this judgment to the Court of Appeals, which reversed the circuit court and held that the case at hand did not satisfy the three factors under the Firefighter's Rule and remanded the case for further proceedings consistent with its opinion. We reverse the Court of Appeals and reinstate the circuit court's directed verdict.

II. ANALYSIS

Our predecessor Court adopted the Firefighter's Rule in Buren v. Midwest Indus., Inc., 380 S.W.2d 96 (Ky. 1964). The Rule is a public policy consideration that bars firefighters from recovering from injuries sustained while in the course of their duties. The constitutionality of this rule was challenged in Hawkins v. Sunmark Indus., Inc., in which this Court held:

for reasons of public policy, our rule is that firemen are required to assume the ordinary risks of their employment, a dangerous occupation, to the extent necessary to serve the public purpose of fire control, and this means providing the Fireman's Rule as a defense for those who are the owners or occupiers of the property he is employed to protect.

727 S.W.2d 397, 400 (Ky. 1986).

The Rule was expanded by the Court of Appeals to include police officers in Fletcher v. Illinois Central Gulf Railroad Co., 679 S.W.2d 240 (Ky. App. 1984). This Court acknowledged that extension in Sallee v. GTE S., Inc., 839 S.W.2d 277, 279 (Ky. 1992).

The elements that must be satisfied for the Firefighters Rule to bar a claim are enumerated in Sallee, 839 S.W.2d at 279 :

There are three prongs necessary to the application of the Firefighter's Rule as adopted in Kentucky:
1) The purpose of the policy is to encourage owners and occupiers, and others similarly situated, in a situation where it is important to themselves and to the general public to call a public protection agency, and to do so free from any concern that by so doing they may encounter legal liability based on their negligence in creating the risk.
2) The policy bars public employees (firefighters, police officers, and the like) who, as an incident of their occupation, come to a given location to engage a specific risk; and
3) The policy extends only to that risk.

Id. at 279 (footnote omitted). In Sallee, a paramedic was responding to a call when he fell into a shallow trench on the property. Sallee brought suit against the utility company which dug the trench. This Court held that Sallee was not injured by a risk inherent in his occupation and, therefore, the Firefighter's Rule did not bar his claim.

Here, the Court of Appeals held that, like the utility company in Sallee, Norfolk Southern does not fit within the first prong of the rule. It reasoned that Norfolk Southern is neither an owner, occupier, nor person otherwise falling within the description of those who (in the specific situation presented herein) need to be protected so they will call upon the appropriate public protection agency. Further, the Court of Appeals stated that:

there is no evidence that Norfolk [Southern] placed the call regarding the suspect, or was even aware of the incident in question. More importantly, Norfolk [Southern] in no manner negligently created a risk that necessitated or was the cause of Johnson's presence on the property. Instead, Johnson's entering *318onto the property and subsequently falling down the embankment was the result of wholly independent factors not involving Norfolk [Southern].

However, Sallee is distinguishable from the case at hand. Sallee brought suit against the utility company-not the property owner. Here, all parties and the courts have conceded that Norfolk Southern is the owner and occupier of the land in question.

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Bluebook (online)
554 S.W.3d 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norfolk-s-ry-co-v-johnson-moctapp-2018.