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Bath Excavating & Construction Co. v. Wills3/15/1993
In Wills v. Bath Excavating & Construction Co., 829 P.2d 405 (Colo. App. 1991), the court of appeals reversed the trial court's order granting summary judgment in favor of the petitioners, Bath Excavating and Construction Company (Bath) and Hahn Plumbing and Heating, Inc. (Hahn), and remanded for trial. The court of appeals found that the trial court erred in concluding that the petitioners owed no common-law duty of care to Norman Wills, the respondent in this personal injury action, and in finding that a "fireman's rule" barred Wills from recovery. We granted certiorari and now affirm, and return this case to the court of appeals with directions to remand for further proceedings consistent with this opinion.
I
On November 4, 1986, Bath was searching for underground water pipes pursuant to the direction of Hahn, who had been employed to reroute a water service line on a vacant lot. While using heavy equipment, Bath ruptured a water main line owned by the City of Fort Collins. The rupture released a stream of high-pressure water that enlarged and filled the excavation.
Bath called the Fort Collins Water Department to shut off or repair the ruptured water main. A water department crew arrived, and after taking charge of the repair operation, increased the size of the excavation. Wills, a member of the crew, attempted to plug the leak. While standing in the excavation, Wills was injured when he was struck by sliding mud.
Wills filed an action against the petitioners, alleging that the negligence of the petitioners in severing the water main resulted in his injuries. The petitioners moved for summary judgment, asserting that they owed no legal duty to Wills in his capacity as a city employee. The trial court granted the motion based on its separate Conclusions that a fireman's rule barred recovery by Wills and that the petitioners owed no common-law duty to Wills. The court of appeals reversed the trial court on both issues and remanded for trial. We granted certiorari and now affirm.
II
The petitioners claim that the trial court properly entered summary judgment because a fireman's rule is viable in Colorado and encompasses a city public works employee. Based on such a rule, the petitioners assert that they owed no legal duty to Wills. While we hold that Lunt v. Post Printing & Publishing Co., 48 Colo. 316, 110 P. 203 (1910), and subsequent Colorado case law do not foreclose recovery in this case, we decline to determine whether Colorado should judicially adopt a no-duty fireman's rule in this case.
A
In the early cases involving fire fighters who were injured on a landowner's premises while discharging their duty, courts typically analyzed the issue of liability based on the common-law status categories of entrants upon the property of another--invitee, licensee, or trespasser. See Kreski v. Modern Wholesale Elec. Supply Co., 415 N.W.2d at 178, 183 (Mich. 1987); Krause v. United States Truck Co., 787 S.W.2d 708, 711 (Mo. 1990). Courts generally held that fire fighters who entered onto premises in the discharge of their duties were licensees to whom the owner or occupant owed only a duty to refrain from willfully and wantonly injuring them. Kreski, 415 N.W.2d at 183; see generally Larry D. Scheafer, Annotation, Liability of Owner or Occupant of Premises to Fireman Coming Thereon in Discharge of His Duty, 11 A.L.R.4th 597, 601-02 (1982 & 1992 Supp.)
Later courts recognized, however, that fire fighters do not fit precisely within the common-law categories of invitee or licensee. See Krause, 787 S.W.2d 708; Krauth v. Geller,
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