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Farmer v. B & G Food Enterprises6/6/2002
DATE OF JUDGMENT: 03/24/2000
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 06/06/2002
EN BANC.
. This appeal is brought by Shelton W. Farmer, a Picayune, Mississippi, police officer, from the M.R.C.P.12(b)(6) dismissal by the Pearl River County Circuit Court of the complaint for personal injuries he filed against B & G Enterprises, Inc. d/b/a Taco Bell #15326 (Taco Bell), located in Picayune, Mississippi, and Clayton S. Brunson, individually and on behalf of Clayton S. Brunson, II, a minor. On May 28, 1996, Office Farmer responded to a disturbance call at the Taco Bell in Picayune, Mississippi. Upon entering the restaurant, Farmer saw Clayton S. Brunson II, a visitor, and Daniel T. Magee, a Taco Bell employee, wrestling with each other. In attempting to break up the fight, Farmer was kicked in the knee by Brunson. Farmer suffered a severe knee injury requiring knee surgery and numerous follow up treatments. Subsequently, Farmer filed suit, and the circuit court dismissed, granting Taco Bell's M.R.C.P. 12(b)(6) motion to dismiss. The dismissal was based upon a doctrine not yet adopted by Mississippi courts, the police officer and firefighter's rule. The circuit court certified its dismissal as final pursuant to M.R.C.P. 54(b). Farmer appeals, contending that the circuit court erred in dismissing his complaint and in adopting the police officer and firefighter's rule. We affirm the dismissal of the complaint.
DISCUSSION
I. WHETHER THE CIRCUIT COURT ERRED IN DISMISSING THE COMPLAINT UNDER M.R.C.P. 12(b)(6).
. A motion to dismiss under M.R.C.P. 12(b)(6) raises an issue of law. L.W. v. McComb Separate Mun. Sch. Dist., 754 So. 2d 1136, 1138 (Miss. 1999) (collecting authorities). We conduct a de novo review of questions of law. Id. (citing UHS-Qualicare, Inc. v. Gulf Coast Cmty. Hosp., Inc., 525 So. 2d 746, 754 (Miss. 1987)). When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of his claim. T.M. v. Noblitt, 650 So. 2d 1340, 1342 (Miss. 1995).
. The circuit court adopted the "firefighter's rule," which prohibits recovery by a firefighter, or, in this case, a police officer, injured as a result of "a risk inherent in, and foreseeable as a part of their duties as police officers." 62 Am. Jur. 2d Premises Liability § 431 (1990). The circuit court determined that Farmer did not allege that Taco Bell failed to warn him of any risk not reasonably expected under the circumstances.
. The firefighter's rule is an issue of first impression in Mississippi. While it appears most jurisdictions still follow some version of the firefighter's rule, Minnesota, Florida, and New Jersey have abrogated the rule by statute, and Pennsylvania, Oregon, and Colorado have abolished the rule by decision. See Hopkins v. Medeiros, 724 N.E.2d 336 1341-43 (Mass. App. Ct. 2000). While Michigan seems to have abandoned the rule by statute (see Mich. Comp. Laws Ann. § 6000.2965), it appears other Michigan statutes retain the traditional common law doctrine of the firefighter's rule. See Harris-Fields v. Syze, 600 N.W.2d 611, 616-17 (Mich. 1999).
A. Firefighter's Rule Under Traditional Landlord Liability
. The firefighter's rule originated over one hundred years ago and classified a firefighter as a licensee, with the property owner owing a duty to refrain from engaging in wilful, wanton or intentional conduct:
In Gibson v. Leonard, 32 N.E. 182 (Ill. 1892) , as well as mos
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