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Farmer v. B & G Food Enterprises6/6/2002
perform a public duty. Such a person is obligated to enter upon another's property to perform the duty. This fact causes a firefighter to be sui generis, and therefore a firefighter cannot be fairly characterized as a licensee or invitee. Hass v. Chicago & N.W. Ry., 179 N.W.2d 885, 886-87 (Wis. 1970). Furthermore, public policy is the basis of our adoption of the firefighter's rule, not negligence. See, e.g., Clark v. Corby, 249 N.W.2d 567, 569 (Wis. 1977).
E. Application of the Rule to Farmer
. We hold that Farmer's cause of action against Taco Bell is barred by the application of the firefighter's rule and that the circuit court was correct in dismissing the complaint. The police were summoned to respond to a disturbance (a fight) at the Taco Bell. When Farmer, a police officer, arrived on the scene, the two men were still fighting. In an attempt to break up the fight, Farmer was injured. Farmer's injury was sustained as the result of a of the same negligent act that necessitated the call for police assistance and that brought Farmer to the Taco Bell.
II. WHETHER FARMER SHOULD BE ALLOWED LEAVE TO AMEND HIS COMPLAINT TO ASSERT THE PROPER CLAIM FOR RELIEF.
. Farmer argues that pursuant to M.R.C.P. 15, he should be afforded leave to amend his complaint to assert a proper claim for relief should this court affirm the trial court's dismissal. We have repeatedly stated that matters not properly brought before the trial court, typically cannot be raised on direct appeal: " e accept without hesitation the ordinarily sound principle that this Court sits to review actions of trial courts and that we should undertake consideration of no matter which has not first been presented to and decided by the trial court." Educational Placement Servs. v. Wilson, 487 So. 2d 1316, 1320 (Miss. 1986).
. Under Rule 15(a), the court's dismissal of Farmer's complaint for failure to state a claim for which relief can be granted afforded him an automatic right to amend within thirty days. Farmer's failure to amend his complaint within thirty days prevents him from doing so on appeal. See Duncan v. Chamblee, 757 So. 2d 946, 950 (Miss. 1999) (citing Sligh v. First Nat'l Bank, 704 So. 2d 1020, 1024 (Miss. 1997)). Farmer could have moved to amend the order dismissal to allow for an amended complaint or simply have filed such an amendment, asserting the right under the rule. Either way, the trial court was not given the opportunity to rule on this matter, such that we find this assignment of error to be procedurally barred.
CONCLUSION
. For the foregoing reasons, the judgment of the Pearl River County Circuit Court is affirmed.
. AFFIRMED.
PITTMAN, C.J., SMITH, P.J., AND CARLSON, J., CONCUR. COBB, J., CONCURS IN RESULT ONLY. GRAVES, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, J. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J.
GRAVES, JUSTICE, CONCURRING
. I agree with the result reached by the majority, but I do not join the majority opinion. I would go further and abolish the "licensee" and "invitee" distinction as I find no reason to maintain these legal fictions in premises liability cases. I write separately to encourage the abolishment of the licensee and invitee distinction in premises liability cases and to encourage the adoption a version of the Firefighter's Rule for those cases involving rescue personnel.
. The Firefighter's Rule seems to be a workable solution to an often thorny problem. Rescue personnel are not like everyone else and do not easily fit into a particular category. This rule applies only to public service jobs w
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