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Rhea v. Sapp

Court of Appeals of Missouri, Western District, Third Division

March 3, 2015

JAMES C. RHEA, INDIVIDUALLY AND AS PLAINTIFF A.D. LITEM FOR MARGARET RHEA, ET AL., Respondents,
v.
NORMAN SAPP, Appellant

As Amended April 28, 2015.

Page 371

Appeal from the Circuit Court of Henry County, Missouri. The Honorable Michael C. Dawson, Judge.

Scott S. Bethune, David M. Harris and Travis W. Shumate, Kansas City, MO, for respondents.

Patricia Keck and Jill L. Geary, Springfield, MO, for appellant.

Before Division Three: Gary D. Witt, Presiding Judge, Joseph M. Ellis, Judge and Thomas H. Newton, Judge. All concur.

OPINION

Gary D. Witt, Judge.

Page 372

This appeal arises from an action for wrongful death brought by the estate of Margaret Rhea (" Rhea" ) against multiple defendants after her car was struck by a fireman responding to a fire. The claims against all defendants were settled with the exception of the claims against Norman

Page 373

Sapp (" Sapp" ), the individual fireman who caused the accident. The trial court entered judgment in favor of Rhea, and Sapp brings two points on appeal. He argues that as a firefighter, he should be shielded from liability and afforded the protections of either the official immunity doctrine or the public duty doctrine. Because we agree with Sapp that official immunity applies, we reverse.

Factual and Procedural History[1]

On May 8, 2009, Gilbert Watson (" Watson" ) was driving a semi tractor-trailer rig with a forty-foot trailer hauling bulls. He was traveling westbound on Missouri Highway 52 between the cities of Deep Water and Montrose.

Watson was passed by another automobile that pulled in front of him, and the driver of that vehicle began abruptly tapping on his brakes to indicate he wanted Watson to stop his vehicle. After stopping, Watson was informed that smoke was coming from the back of his trailer.

Watson went to the back of his vehicle to investigate. He could smell smoke and noticed that the inside tire on the left rear axle was on fire. Watson had a fire extinguisher in his truck that he used to knock the fire down, but the fire reignited. When Watson became unable to extinguish the fire with his extinguisher, he dialed 911 and informed dispatch that a tire on a cattle trailer was on fire, that the trailer contained bulls, and that he was halfway between Deepwater and Montrose on Highway 52. While waiting on emergency responders to help extinguish the fire, Watson used a cup to get water out of the ditch to pour on the burning tire. Rhea was driving eastbound on Highway 52 and saw the cattle trailer on fire in the lane of traffic. She stopped approximately one hundred yards behind it waiting for the highway to clear.

Sapp has served on the Montrose Fire Department since 1970 and was serving as the chief at the time of these events. Sapp drafted the Department's standard operating procedures approximately ten to fifteen years before litigation of this case. The procedures of the department state that if a fireman was to drive in excess of the rules of the road, he was to engage the vehicle's lights and sirens. Pursuant to the procedures, when a firefighter receives a pager " tone," he or she is expected to respond pursuant to the guidelines, protocols, and statutes in place. He or she is also required to respond in an appropriate manner to the situation depending on the weather conditions and the severity of the situation presented.

Sapp lives on Highway 52 in Montrose. Sapp was at home, sometime around or after 9:15 p.m., when he received a report of a fire on a cattle trailer on westbound Highway 52 halfway between Montrose and Deepwater. Sapp carried the pager utilized by the Montrose Fire Department that communicated verbal information from the dispatcher, and in this instance the pager communicated that a cattle trailer was on fire. When Sapp was dispatched, he was not given instructions on how to respond to the call. Sapp was responding in his capacity as fire chief.

In response to the dispatch, Sapp was driving his personal vehicle, a 2005 Chevrolet pickup that was equipped with a siren and a dashboard light. The siren had a " wail" that produced an up-and-down sound and also a " yelp" that was " ear catching" and high pitched. Sapp went to the scene of the fire with his emergency

Page 374

lights on but did not engage the siren.[2] Sapp had knowledge of Highway 52 at the location where dispatch reported the trailer was located. Prior to responding to the scene of the fire, Sapp had traveled this road hundreds of times. Sapp believed that the highway was narrow at the location where dispatch indicated the ...


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