Johnson v. Steffen ( 1997 )

OPINION

KIRSCH, Judge.

Appellants Otis P. Johnson (Johnson) and Roberta Ruth Johnson (collectively, the Johnsons) appeal the trial court’s entry of summary judgment in favor of appellees Mark Steffen (Steffen), Catsports, Tuxedo Brothers, Inc. (Tuxedo Brothers), Anheuser-Busch, Inc. (Anheuser-Busch) and Triathlon Federation/USA (the Triathlon Federation). The Johnsons present two issues for our review, one of which is dispositive: Whether the Fireman’s Rule applies to bar Johnson’s claim.¹

We reverse.

FACTS

Johnson, an Indianapolis city police officer for over 83 years, was assigned to work traffic control and security for the 1990 Bud-light Triathlon on August 5, 1990. Johnson was assigned to the intersection of Pennsylvania and Vermont Streets in Indianapolis. Of Pennsylvania’s six lanes, only the two west lanes were restricted by cones for the bike race portion of the triathlon.

Steffen, a participant in the triathlon, was riding his bike southbound on Pennsylvania toward Vermont Street and Johnson. He admitted that he saw Johnson, recognized him as a potential hazard, but continued riding. There was a car in the west curb lane, and the bicyclists were riding around it. Johnson was attempting to direct the ear not to pull out of the curbside lane, when Steffen, collided with him. Although Steffen says that Johnson was inside the coned-off lanes when the accident occurred, and in fact “dove or lunged,” Record at 297, in front of his bike, Johnson claims that he was outside of the cones in the third lane from the west curb.

The triathlon was sponsored by Anheuser-Busch and sanctioned by the Triathlon Federation. The national race organizer for the triathlon series was Catsports, and the local race organizer for the Indianapolis race was Tuxedo Brothers. Don Carr, the principal owner of Tuxedo Brothers, and Steve Locke, site director for the race, laid out the triathlon’s bike course. William Herwig was the bike race coordinator. None of the individuals had any formal education or training in recreational safety, and Herwig had no experience as a bike course coordinator. Furthermore, Dr. Alan Caskey, an expert in the field of recreational safety and management, submitted an affidavit claiming that Cats-ports, Tuxedo Brothers, Anheuser-Busch and the Triathlon Federation failed to adequately design the bike course, and failed to conduct hazard identification and safety analysis and that those failures were the proximate cause of Johnson’s injuries.

DISCUSSION

Appellees assert that Johnson’s claim² is barred by the Fireman’s Rule. The Fireman’s Rule, adopted in Indiana in Woodruff v. Bowen, 136 Ind. 431, 34 N.E. 1113 (1893), originally provided that a landowner owed no duty to a firefighter responding to a fire on the landowner’s property “except that of abstaining from any positive wrongful act which may result in [the firefighter’s] injury[.]” Id., 136 Ind. at 442, 34 N.E. at 1117. Over time, the rule evolved to provide “that professionals, whose occupations by their nature expose them to particular risks, may not hold. another negligent for creating the situation to which they respond in their professional capacity.” Koehn v. Devereaux, 495 N.E.2d 211, 215 (Ind.Ct.App.1986). Police officers have been held to be included in the group of professionals subject to the Fireman’s Rule. Kennedy v. Tri-City Comprehensive Community Mental Health Ctr., Inc., 590 N.E.2d 140 (Ind.Ct.App.1992), trans. denied; Koop v. Bailey, 502 N.E.2d 116, 118 (Ind.Ct.App. 1986).

Our supreme court reexamined the Fireman’s Rule in Heck v. Robey, 659 N.E.2d 498 (Ind.1995). In Heck, a paramedic (Robey) was injured while attempting to rescue a motorist (Heck) at the scene of an accident. Heck had driven his vehicle into a large, steep ditch, and firefighters had to be called to remove the vehicle’s door. Robey, with another paramedic, then proceeded to remove Heck from the vehicle, placed him on a spine board, and carried him from the ditch to the road. Heck started to flail and kick as he was being removed from the vehicle, and Robey suffered back injuries as a result thereof. Id. at 500.

Robey filed suit against Heck, seeking compensation for the injuries he suffered as a result of Heck’s negligence. The trial court granted summary judgment in favor of Heek, and this court affirmed holding that the Fireman’s Rule barred recovery.³ The supreme court reversed, and, in doing so, engaged in an historical overview of the Fireman’s Rule from its adoption in Woodruff. The court explained that the rule “was simply a shorthand way of characterizing the duty owed by a landowner to those coming onto the premises under a public duty during emergencies.” Heck, 659 N.E.2d at 503.

In tracing the historical development of the Rule, the supreme court reviewed this court’s decision in Heck which articulated three theoretical pedestals supporting the Rule: premises liability principles, the defense of incurred risk, and public policy concerns. 659 N.E.2d at 503.

The court noted that premises liability was not at issue, so it did not discuss its viability as a justification for the Fireman’s Rule.⁴ The court then rejected incurred risk and public policy as justifications for the Fireman’s Rule. With respect to incurred risk, the court explained that a plaintiffs risk-taking is a consideration embodied in Indiana’s Comparative Fault Act and must be assessed thereunder. “Any rule that purports to effect an absolute defense based upon incurred risk is contrary to our comparative fault scheme.” 659 N.E.2d at 505 (footnote omitted). With respect to public policy concerns, the court expressly declined to take a public policy position that would relieve defendants of liability based solely upon the plaintiffs occupation. 659 N.E.2d at 504. In other words, if a public safety officer is injured as a result of another’s negligence, the Fireman’s Rule will not categorically protect the negligent party merely because the public safety officer was engaged in his employment.

As in Heck v. Robey, premises liability is not at issue in the present case. The “premises” involved here was part of a city street being used for a bicycle race. The street is not owned by any of the defendants. When a case involves a non-owner, liability turns upon the degree of control such person or entity exercises over the premises. Crist v. K-Mart Corp., 653 N.E.2d 140, 145 (Ind. Ct.App.1995), trans. denied (1996). None of the defendants here exercised the requisite degree of control. The only connection of the defendant Mark Steffen to the premises was the fact that he was riding a bicycle upon it. The connection of Anheuser-Busch and the Triathlon Federation as the sponsors of the triathlon of which the bicycle race was a part was even more remote. The role of Catsports and Tuxedo Brothers in organizing the bicycle race did not constitute the type of control that would bring premises liability into issue.

For these reasons, the Fireman’s Rtde does hot apply to bar Johnson’s claim against these defendants, and the trial court erred in granting their summary judgment motion on that ground.

Reversed.

DARDEN, J., concurs. SULLIVAN, J., dissents with separate opinion.

1 . The Johnsons also contend that the trial court erred in finding no genuine issue of fact existed as to whether the actions of Catsports and Tuxedo Brothers were willful and wanton or positive wrongful acts. Because we hold that the Fireman's Rule does not bar Johnson’s claim, we do not consider this issue.

2 . Our reference throughout this opinion to Johnson’s claim includes not only Johnson’s theories of recovery, but also Roberta’s derivative loss of consortium claim.

3 . Heck v. Robey, 630 N.E.2d 1361, 1368 (Ind.Ct. App.1994).

4 . The court saved for another day the question of the continued viability of the Fireman's Rule "limiting the duty of care owed by the owner of urban premises, as stated in Woodruff," noting that such question was not "directly presented in this case[.]” Heck, 659 N.E.2d at 505. At the least, the supreme court in Heck restricted the scope of the Fireman's Rule to the status it occupied in 1893 — a rule "based ... upon premises liability and concem[ing] only the legal question of duty." Id. at 501. The scope of that duty is, as it was in Woodruff, to abstain from any positive wrongful act to "those coming onto the premises under a public duty during emergen-cíes.” Id. at 503. However, any continued viability of the Fireman’s Rule in premises cases would create the very dichotomy which justified the extension of the Rule to non-premises cases in the first instance. See Koehn, 495 N.E.2d at 215 ("Because it would create a dichotomy to establish policies which deny recovery to a fireman injured on-premises but [allow] recovery to a fireman injured off-premises, the fireman’s rule must be applied to off-premises injuries sustained by firemen acting in their professional capacity.”). Thus, as the dissenting 'opinion notes, ’the court did not sound the death knell of the Fireman’s Rule. It did, however, place its hand squarely on the rope which tolls the funeral bells.