392 P.3d 529
Kan.2017Background
- At ~3:30 a.m., Matthew Willmore rolled his truck across the median and it stopped blocking the southbound lanes of K-177; he had been drinking. A motorist who stopped called 911 and informed dispatch that the truck was in the southbound lanes and nobody was injured.
- Officer Juan Apodaca, responding with lights and siren at high speed, believed the scene was south of I-70 but struck the disabled pickup at ~104 mph and was seriously injured; he received workers' compensation and sued Willmore and Willmore's father for negligence and negligent entrustment.
- The district court granted summary judgment for defendants, holding that Kansas’ firefighter’s rule (Calvert v. Garvey Elevators) should be extended to law enforcement officers and barred Apodaca’s negligence claims; the Court of Appeals affirmed.
- On appeal to the Kansas Supreme Court the central question was whether to extend the firefighter’s rule to law enforcement officers and whether any Calvert exceptions applied (third‑party misconduct; subsequent negligence after arrival; failure to warn of hidden dangers).
- The Kansas Supreme Court extended the firefighter’s rule to law enforcement officers, held none of the Calvert exceptions applied on these facts, and affirmed the lower courts; it also declined to consider a newly raised willful/wanton exception as procedurally barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kansas’ firefighter’s rule should be extended to law enforcement officers | Apodaca: rule should not extend because Calvert relied in part on firefighter‑specific factors (e.g., Firefighters Relief Fund, firefighting duties) and police duties differ | Willmore: public policy rationale underlying Calvert applies to all taxpayer‑funded public safety officers responding to hazards | Court: extended Calvert to law enforcement officers — public policy and majority of jurisdictions support extension |
| Whether the ‘hidden danger’ exception saves Apodaca’s claim | Apodaca: pickup’s lights were off so the disabled truck was a known, hidden danger | Willmore: dispatcher and witnesses informed officers of truck location; an unlit truck on the road at night is an anticipatable risk for officers | Court: exception does not apply — officer had been warned and the risk was reasonably anticipated for police responding to accidents |
| Whether subsequent acts of negligence by Willmore (e.g., turning off lights) were independent and thus excepted from the rule | Apodaca: turning off lights/flashers was a later, independent negligence that created a new risk | Willmore: any later act did not create an independent risk distinct from the accident that required response | Court: exception requires the subsequent negligence to occur after officer’s arrival and create an independent risk; here the risk was inherent in the original accident, so exception fails |
| Whether a willful/wanton conduct exception (for DUI driving) should be recognized/applied | Apodaca: Willmore’s intoxicated driving was willful/wanton and should allow recovery despite the rule | Defendants: issue was not timely raised below; rule bars negligence-based recovery here | Court: refused to consider or adopt the new exception because Apodaca procedurally failed to press it below (abandoned on appeal) |
Key Cases Cited
- Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 694 P.2d 433 (Kan. 1985) (adopts firefighter’s rule on public policy grounds and lists three exceptions)
- McKernan v. General Motors Corp., 269 Kan. 131, 3 P.3d 1261 (Kan. 2000) (distinguishes product‑liability claims from risks that necessitate responder presence)
- Cole v. Hubanks, 272 Wis. 2d 539, 681 N.W.2d 147 (Wis. 2004) (declines blanket extension of firefighter’s rule to police; evaluates extension fact‑by‑fact)
- Armstrong v. Mailand, 284 N.W.2d 343 (Minn. 1979) (discusses primary assumption of risk as a duty‑limiting doctrine applicable to professional rescuers)