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09/21/93 ALICE KILVENTON v. UNITED MISSOURI BANK

September 21, 1993

ALICE KILVENTON, MARIETTA FUGATE, AND KAREN OLDHAM, ET AL., APPELLANTS,
v.
UNITED MISSOURI BANK, TRUSTEE, DEFENDANT, MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, RESPONDENT, MOUNTAIN PLAINS CONSTRUCTION, INC., THIRD-PARTY DEFENDANTS, AND BROWN BROTHERS EXCAVATING, INC., THIRD-PARTY DEFENDANT.



APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY. The Honorable H. Michael Coburn, Judge

Before Spinden, P.j., and Turnage, C.j., and Fenner, J.

The opinion of the court was delivered by: Spinden

On November 28, 1988, an explosion rocked southern Kansas City at a highway construction site after an arsonist set fire to trailers containing ammonium nitrate and fuel oil. Fire fighters James Kilventon, Michael Oldham, and Thomas Fry died fighting the fire. Their survivors filed wrongful death suits against several defendants, but this appeal involves only their claims against the Missouri Highway and Transportation Commission (MHTC).

MHTC filed a motion for summary judgment alleging that it was not liable to the fire fighters' survivors because (1) "the firemen's rule" prevented recovery; (2) MHTC did not retain control over the work activities of the independent contractors performing the work; (3) the fire fighters' exclusive remedy was workers' compensation; and (4) MHTC enjoyed sovereign immunity. The trial court granted MHTC's motion for summary judgment with no opinion or comment, and the survivors appeal. We reverse and remand for a trial.

In reviewing the granting of summary judgment, we review the record in the light most favorable to the party against whom the judgment was entered. ITT Commercial Finance Corporation v. Mid-American Marine Supply Corporation, 854 S.W.2d 371, 376 (Mo. banc 1993). If the judgment can be sustained under any theory, we must do so even if the trial court reached the correct result for the wrong reasons. Zafft v. Eli Lilly and Company, 676 S.W.2d 241, 243 (Mo. banc 1984).

Summary judgment is appropriate when the pleadings, depositions and admissions on file, together with any affidavits, show that no genuine issue of material fact exists and that the moving party is entitled to a favorable judgment as a matter of law. Id. at 244; Rule 74.04. "A 'genuine issue' exists where the record contains competent materials that evidence two plausible, but contradictory accounts of the essential facts. A 'genuine issue' is a dispute that is real, not merely argumentative, imaginary or frivolous." ITT Commercial, 854 S.W.2d at 382. If a trial court must overlook material in the record that raises a genuine dispute as to the facts to grant a summary judgment, then summary judgment is not appropriate. Id. at 378.

The fire fighters' survivors contend that the trial court erroneously granted summary judgment for MHTC based upon the "firemen's rule." We agree. Under the "firemen's rule," a fire fighter injured while performing fire fighter duties cannot recover against the person whose ordinary negligence created the emergency. Krause v. U.S. Truck Company, Inc., 787 S.W.2d 708, 711 (Mo. banc 1990). "'A fireman assumes . . . all risks incident to his firefighting activities except for hidden risks which are known by the landowner.'" Id. at 712 (citations omitted). Explosives are a good example of a hidden risk. Anderson v. Cinnamon, 365 Mo. 304, 282 S.W.2d 445, 448 (Mo. banc 1955)(overruled on other grounds by Wells v. Goforth, 443 S.W.2d 155 (Mo. banc 1969)).

The law does not compel firemen in fighting a fire to assume all possible lurking hazards and risks . . .; it may not be said that a "fireman has no protective rights whatever." . . . As indicated, the majority of cases, including Anderson v. Cinnamon and other cases relied on by the appellant, recognizes certain modifications or exceptions to the general rules relating to land owners and firemen and it is these principles upon which the respondents rely,--"that an owner or occupant of premises which firemen enter upon in the discharge of their duty may be held liable to a fireman injured by a hidden danger on the premises, where the owner or occupant knew of the danger and had an opportunity to warn the firemen of it." . . . "Certainly, no meritorious reason can be advanced to justify the view that a property owner, with knowledge of a hidden peril, should be allowed to stand by in silence when a word of warning might save firemen from needless peril. . . . Although firemen assume the usual risks incident to their entry upon premises made dangerous by the destructive effect of fire, there is no valid reason why they should be required to assume the extraordinary risk of hidden perils of which they might easily be warned."

Bartels v. Continental Oil Company, 384 S.W.2d 667, 669-70 (Mo. 1964) (citations omitted).

Reviewing the record in the light most favorable to the fire fighters' survivors, we find genuine issues of whether the fire fighters were aware of the explosives at the site. The record indicates that the fire fighters had been warned that explosives were in the area, but the record is not clear whether they ever became aware that explosives were in the trailers.

Security guard Debra Riggs testified in her deposition that she informed the fire fighters that the trailers contained ammonium nitrate, fertilizer and diesel fuel. However, she told a police detective briefly after the explosion that blasting caps and fertilizer were typically stored in the trailers and that she did not know explosives were in the trailers. Before the explosion, she told fire fighter Dean Gentry that she and another security guard were trying to find out from the owner what was in the trailers.

Riggs' statements at the scene seem to indicate that she did not know what was in the trailers, and she, therefore, could not have warned the fire fighters of the trailers' contents. Her statements, although in conflict with her deposition, could be used to establish substantive evidence if she is available for cross-examination at trial. Rowe v. Farmers Insurance Company, Inc., 699 S.W.2d 423 (Mo. banc 1985). Her statements, when considered as substantive evidence, present a genuine issue of material fact as to whether the fire fighters received an adequate forewarning concerning the hidden risk of explosives in the trailers.

Another security guard at the site, Riggs' brother Robert, testified in his deposition that he informed fire fighters of magazines containing dynamite and blasting caps away from the trailers and that diesel fuel and fertilizer were stored in the trailers. He testified that he did not know that ammonium nitrate was in the trailers. From the information given to them by Robert Riggs and from the lack of placards on the trailers, the fire fighters may have assumed that they had found the explosives about which they had been warned in the magazines south of the trailers. This could have lured them into proceeding to fight the trailer fires.

This causes us to conclude that a genuine dispute remains as to what warnings about the explosives, if any, the fire fighters received. We are unable to declare as a matter of law that the explosives were not a hidden ...


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