No. 91SC522Supreme Court of Colorado.
Decided March 15, 1993.
Certiorari to the Colorado Court of Appeals
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Clifton, Hook Bovarnick, P.C., James R. Clifton, Diane M. Carmen, for Petitioner Bath Excavating Construction Co.
Rothgerber, Appel, Powers Johnson, Franklin D. O’Loughlin, Patrick Q. Hustead, for Petitioner Hahn Plumbing Heating, Inc.
Williams Trine, P.C., J. Conard Metcalf, for Respondents.
EN BANC
JUSTICE ERICKSON delivered the Opinion of the Court.
[1] 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
[2] 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.
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in the excavation, Wills was injured when he was struck by sliding mud.
[4] Wills filed an action against the petitioners, alleging that the negligence of the petitioners in severing the water main resulted in his injuries.[1] The petitioners moved for summary judgment, asserting that they owed no legal duty to Wills in his capacity as a city employee.[2]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
[5] 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
[6] 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.).
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event or actions that creates the need for the fire fighter’s services See Krauth, 157 A.2d at 131 (stating that “in terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid”); see, e.g., Farmer v. Union Oil Co., 141 Cal.Rptr. 848 (Cal.App. 1977); Kreski, 415 N.W.2d at 178; Krause, 787 S.W.2d at 711-12.
[8] In fact, the modern-day fireman’s rule is misnamed. Although the “no-duty” fireman’s rule originally barred tort claims by fire fighters who were injured while fighting a fire against persons whose negligence caused the fire, it has been expanded to include police officers. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 61, at 430-31 (5th ed. 1984); see, e.g., Furstein v. Hill, 590 A.2d 939, 945(Cohn. 1991) (adopting fireman’s rule that encompasses police officers) Berko v. Freda, 459 A.2d 663 (N.J. 1983) (extending fireman’s rule to police officers).[5] The fireman’s rule only applies to bar suit by a fire fighter or a police officer injured in the performance of his or her duty. Rosa v. Dunkin’ Donuts, 583 A.2d 1129, 1134 (N.J. 1991). [9] In adopting a fireman’s rule, courts have occasionally used the language “safety officers,” while simultaneously indicating that the term only applies to fire fighters and police officers. See, e.g., Furstein, 590 A.2d at 943-45; Pottebaum v. Hinds, 347 N.W.2d 642, 645 (Iowa 1984) Kreski, 415 N.W.2d at 189. However, to date, no jurisdiction has adopted a “public safety worker rule.”[6] [10] The no-duty fireman’s rule is grounded in primary assumption of the risk, public policy considerations, or a combination of both factors See, e.g., Carpenter v. O’Day, 562 A.2d 595 (Del.Super.), aff’d, 553 A.2d 638 (Del. 1988); Winn v. Frasher, 777 P.2d 722 (Idaho 1989) Kreski, 415 N.W.2d at 183; Krause, 787 S.W.2d at 711-12. One rationale offered to support the fireman’s rule suggests that no duty is owed because safety officers are employed, trained, and paid to confront dangerous situations in order to protect the public and undertake their profession with the knowledge that their personal safety is at risk Banyai v. Arruda, 799 P.2d 441, 443 (Colo.App. 1990) (citing Kreski, 415 N.W.2d at 178). [11] The court of appeals concluded that Colorado adopted a fireman’s rule in Lunt, 48 Colo. 316, 110 P. 203, but that we effectively rejected the fireman’s rule in Mile Hi Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971). See Wills, 829 P.2d at 408-09. To determine whether recovery by Wills is foreclosed in this case, we review Lunt an Mile Hi Fence Co.
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B
[12] In Lunt, a fire fighter, answering an alarm to extinguish what mistakenly appeared to be a fire, inhaled nitric acid fumes and subsequently died. Lunt, 48 Colo. at 318-19, 110 P. at 203-04. The wife of the deceased fire fighter brought a negligence action against the landowner, alleging that by calling the fire department, the landowner invited the fire fighter onto the premises and was liable for not warning the fire fighter of the unsafe condition that existed thereon. Id. at 322, 110 P. at 205. The question presented for our review in Lunt
concerned the common-law status of a fire fighter who entered onto a landowner’s premises in the discharge of his duty. Id. at 323, 110 P. at 205.
C
[17] In our view, Lunt and its progeny do not foreclose Wills from bringing a negligence action against the petitioners. Neither Lunt nor any subsequent case expressly adopted a fireman’s rule providing that a landowner or occupant owes no duty to public employees because of their public-sector
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employment.[9] Instead, Lunt precluded recovery by a fire fighter based on his status as a licensee.
[18] Mile Hi Fence Co. clearly overruled Lunt insofar as Lunt held that the common-law status of a public employee as a trespasser, licensee, or invitee determined what duty was owed. To that extent, we agree that the rule of no liability to firemen announced in Lunt does not foreclose recovery by Wills. Moreover, we do not read Mile Hi Fence Co. as either rejecting or adopting a no-duty fireman’s rule. [19] The petitioners contend, however, that the rationalizations emphasizing public policy considerations and primary assumption of the risk justify the imposition of a no-duty fireman’s rule that would encompass a water department employee. Wills counters that there is no need for a no-duty fireman’s rule because the rules governing a property owner or occupier’s duty to exercise care provide the proper method for analyzing recovery by public employees for negligently caused injuries. [20] We recognize that the fireman’s rule is also the subject of debate in other jurisdictions, although the majority has adopted a no-duty fireman’s rule. Compare Kreski, 415 N.W.2d 178 (adopting fireman’s rule) with Christenson v. Murphy, 678 P.2d 1210, 1217 (Or. 1984) (abrogating fireman’s rule).[10] We further note that the no-duty fireman’s rule has been adopted by jurisdictions that have abolished the common-law status categories and also by jurisdictions that have statutorily retained the common-law classification system. [21] However, we are not inclined to sua sponte adopt a no-duty fireman’s rule in this case because we are convinced that the underlying rationale of cases from other states that have adopted such a rule would not extend to a water department worker. We are aware of no jurisdiction that has adopted a “public safety worker rule” stating that a landowner owes no duty to a public employee simply because they work in the public sector. Moreover, the jurisdictions that have adopted a no-duty fireman’s rule generally limit the rule to fire fighters and police officers. See, e.g., Furstein, 590 A.2d at 945 (limiting rule to fire fighters and police officers) Pottebaum, 347 N.W.2d at 645 (same); Kreski, 415 N.W.2d at 189 (same) Krause, 787 S.W.2d at 711 (stating that the reasons for the application of the fireman’s rule to fire fighters and police officers do not apply to all public employees whose duties take them to the scene of an emergency); see also Thomas v. Pang, 811 P.2d 821, 825 (Haw. 1991) (recognizing that the policy considerations that persuaded the court to adopt the fireman’s rule supported a separate classification of fire fighters from other public employees). [22] In limiting the fireman’s rule to fire fighters and police officers Kreski stated: [23] “In sum, fire fighters and police officers are different than other employees whose occupations may peripherally involve hazards. Safety officers are employed, specially trained, and paid to confront dangerous situations for the protection of society. They enter their professions with the certain knowledge that their personal safety is at risk while on duty. Property owners cannot reasonably predict visits by safety officersPage 1147
or control their activities while on the premises.”
[24] Kreski, 415 N.W.2d at 178 (emphasis added). [25] Berko explained the limitation to fire fighters and police officers as follows: [26] “Governmental entities maintain police and fire departments in anticipation of those inevitable physical perils that burden the human condition, whereas most public employment posts are created not to confront dangers that will arise but to perform some other public function that may incidentally involve risk.” [27] Berko, 459 A.2d at 666; see also Kowalski v. Gratopp, 442 N.W.2d 682(Mich.App. 1989) (refusing to extend fireman’s rule to paramedic); Krause, 787 S.W.2d at 708 (refusing to extend fireman’s rule to ambulance attendant).[11] In our view, there is a significant difference between the responsibilities and duties of a water department employees and a fire fighter or a police officer, and we do not believe that the underlying rationale of the cases from other jurisdictions that have adopted a fireman’s rule would extend to Wills. [28] We express no view on the question of whether Colorado should judicially adopt a no-duty fireman’s rule. Instead, we limit our decision in this case to the conclusion that Wills is not foreclosed from asserting a negligence action based on the reasoning of Lunt and subsequent case law. However, our determination that Wills is not foreclosed from asserting a negligence claim is not dispositive of this case. Summary judgment for the petitioners is appropriate if Wills cannot establish that the petitioners owed him any common-law duty.
III
[29] Wills asserts that the petitioners, Bath and Hahn, breached a common-law duty owed to him by rupturing the water line. He claims that the petitioners’ actions constituted active negligence.[12] The trial court, however, concluded that the petitioners owed no duty to Wills because “at the time of Wills’ alleged injury, [the petitioners] were no longer in control of the premises, nor was the work being performed in their charge.” In our view, the trial court erred by failing to analyze the question of whether a duty existed prior to the time of the injury.
A
[30] Whether a particular defendant owes a legal duty to a particular plaintiff, as well as the scope of the duty, are questions of law for a court to resolve. Greenberg v. Perkins, No. 91SC768, slip op. at 17 (Colo. Feb. 1, 1993); Mile Hi Concrete, Inc. v. Matz, 842 P.2d 198, 202-03 (Colo. 1992). In determining whether to recognize a duty in a particular case, several factors are relevant to a court’s consideration. These factors include the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the actor. Greenberg, No. 91SC768 at 17; Taco Bell, Inc. v. Lannon, 744 P.2d 43, 50 (Colo. 1987).
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the question is one of fairness under contemporary standards, that is, whether reasonable persons recognize and agree that a duty exists Greenberg, No. 91SC768 at 18; University of Denver v. Whitlock, 744 P.2d 54, 57 (Colo. 1987).
[32] Once a court has determined the existence of a duty, the court must consider the scope of the duty and define the applicable standard of care against which to measure the defendant’s conduct. Greenberg, No. 91SC768 at 18. The finder of fact then must determine whether the defendant breached that duty. Id. at 18; Taco Bell, 744 P.2d at 50. B
[33] In this case, we are satisfied that application of the relevant considerations warrants the imposition of a common-law duty on the part of the petitioners to act with reasonable care to avoid injury in excavating to lay water lines.[13]
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IV
[37] We hold that, in this case, the petitioners owed a common-law duty to exercise reasonable care to avoid injury to Wills in the excavation of water lines. To the extent that Lunt precluded recovery by a public employee while on the property of another based on the injured employee’s common-law status, we agree with the court of appeals that Lunt was overruled by Mile Hi Fence Co. and does not foreclose recovery by Wills. Moreover, neither Lunt nor any subsequent case expressly adopted a no-duty fireman’s rule that would foreclose recovery in this case. Accordingly, we affirm the judgment of the court of appeals and return this case to the court of appeals with directions to remand to the district court for further proceedings consistent with this opinion.
(refusing to extend fireman’s rule to ambulance attendant).
(1970). Even if it has not, we decline to adopt the rule here.” Id. at 443.
I.
[41] We granted certiorari to determine “whether the court of appeals erred in concluding that the `fireman’s rule’ has been rejected in Colorado, and, if so, whether respondent Norman Wills, a city water department employee, is subject to the [rule].” A discussion of the rationales on which other state courts rely as a contemporary basis for the public safety worker rule reveals that this court should adopt and apply a public safety worker rule in this case. Additionally, adoption of such a rule is not inconsistent with this court’s holding in Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971). I would conclude that a public safety worker rule would encompass the respondent Norman Wills (Wills), a Water Systems Operator whose job duties at the time of the accident were to repair ruptured water lines.
A. [42] The Public Safety Worker Rule
[43] The “fireman’s” rule prevents professional fire fighters from “recover[ing] damages from a private party for injuries he [or she] sustained during the course of putting out a fire even though [a] private party’s negligence may have caused the fire and injury.” Thomas v. Pang, 811 P.2d 821, 823 (Haw. 1991). It is well settled that a majority of jurisdictions have adopted some form of this rule. Bycom Corp. v. White, 371 S.E.2d 233, 234 (Ga.App. 1988) (stating that the fireman’s rule is universally accepted); Thomas, 811 P.2d at 823 (stating that a majority of jurisdictions that have considered the rule have adopted some version of it); Winn v. Frasher, 777 P.2d 722, 724 (Idaho 1989) (recognizing that a great majority of states accept the rule); Pottebaum v. Hinds, 347 N.W.2d 642, 644 (Iowa 1984) (stating that almost all jurisdictions have adopted some version of the rule); Calvert v. Garvey Elevators, Inc., 694 P.2d 433, 436-38 (Kan. 1985) (noting that almost all jurisdictions have adopted some version of the rule); Kreski v. Modern Wholesale Elec. Supply Co., 415 N.W.2d 178, 183 (Mich. 1987) (stating that an overwhelming number of courts have favored adopting the rule) Rosa v. Dunkin’ Donuts of Passaic, 583 A.2d 1129 (N.J. 1991) (acknowledging that the rule is followed throughout the country); Mignone v. Fieldcrest Mills,
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556 A.2d 35, 37-40 (R.I. 1989) (stating that the rule is almost universally accepted across the nation); see Von Beltz v. Stuntman, Inc., 255 Cal.Rptr. 755, 761 (Cal.Ct.App. 1989) (relying on Hubbard v. Boelt, 620 P.2d 156 (Cal. 1980)); Furstein v. Hill, 590 A.2d 939, 942-45 (Conn. 1991); Young v. Sherwin-Williams Co., 569 A.2d 1173, 1175-79 (D.C. 1990); Lanza v. Polanin, 581 So.2d 130, 131-33 (Fla. 1991); Coglianese v. Mark Twain Ltd. Partnership, 524 N.E.2d 1031, 1032 (Ill.App.Ct.) appeal denied, 530 N.E.2d 241 (Ill. 1988); Koehn v. Devereaux, 495 N.E.2d 211, 215 (Ind.Ct.App. 1986); Hawkins v. Sunmark Indus., Inc., 727 S.W.2d 397, 400 (Ky. 1986); Flowers v. Rock Creek Terrace Ltd. Partnership, 520 A.2d 361, 364-69 (Md. 1987); Griffiths v. Lovelette Transfer Co., 313 N.W.2d 602, 604-05 (Minn. 1981); Krause v. U.S. Truck Co., 787 S.W.2d 708, 711-13 (Mo. 1990); Moravec v. Moravec, 343 N.W.2d 762, 764 (Neb. 1984); Steelman v. Lind, 634 P.2d 666, 667 (Nev. 1981) Santangelo v. State, 521 N.E.2d 770, 771-72 (N.Y. 1988), superseded by statute as stated in Sharkey v. Mitchell’s Newspaper Delivery, Inc., 560 N.Y.S.2d 140 (N.Y.App. Div. 1990); Maltman v. Sauer, 530 P.2d 254, 257
(Wash. 1975).
(stating that the history of the rule focused on the status of fire fighters on the premises); Kreski, 415 N.W.2d at 183 (stating that the rule premised liability on the basis of traditional status categories of entrants upon property of another); Krause, 787 S.W.2d at 711 (noting that the early cases involved traditional status categories of entrance upon the property of another); Steelman, 634 P.2d at 667 (stating that the origins of the rule stem from the duty owed by an owner or occupier of land to one who enters upon the land); Santangelo, 521 N.E.2d at 771 (recognizing the common-law rationale for the rule as based on fire fighters’ status as licensees); Mignone, 556 A.2d at 37-38 (recognizing that early cases were premised on antiquated property concepts of entrant classifications). Thus, the Iowa Supreme Court has stated: [45] “Historically, the rule arose in the context of the differing duties owed by a landowner or occupier to individuals coming on his land. Since a policeman or fireman was privileged to enter land pursuant to his “”public duties and could come on property any place or time, courts classified them as bare licensees and held the only duty owed these public servants was to not wantonly or willfully injure them.” [46] Pottebaum, 347 N.W.2d at 644. The common-law paradigm has, however, been rejected as a contemporary basis for the rule, in part because fire fighters no longer fit neatly into the status category of licensees, and because many jurisdictions have abolished entrant classifications as defining the duty of care owed by a landowner Furstein, 590 A.2d at 943; Thomas, 811 P.2d at 823; Pottebaum, 347 N.W.2d at 644-45; Flowers, 520 A.2d at 366-67; Kreski, 415 N.W.2d at 183-84; Krause, 787 S.W.2d at 711-12; Mignone, 556 A.2d at 38. [47] Courts have in turn recognized that the primary assumption of risk theory and considerations of public policy support adoption of a public safety worker rule. The
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primary assumption of risk theory bars public safety workers from filing lawsuits on the ground that they perform work which is inherently hazardous; accordingly, individuals who accept public safety employment assume the risks entailed therein. Furstein, 590 A.2d at 943; Young, 569 A.2d at 1175; Gillespie v. Washington, 395 A.2d 18, 20 (D.C. 1978) Bycom Corp., 371 S.E.2d at 234; Thomas, 811 P.2d at 824; Winn, 777 P.2d at 724; Pottebaum, 347 N.W.2d at 645; Calvert, 694 P.2d at 437 Flowers, 520 A.2d at 367-68; Kreski, 415 N.W.2d at 184-85; Griffiths, 313 N.W.2d at 605; Krause, 787 S.W.2d at 711-12; Rosa, 583 A.2d at 1131 Santangelo, 521 N.E.2d at 771; Mignone, 556 A.2d at 38.
[48] Courts have additionally premised contemporary acceptance of a public safety worker rule on considerations of public policy. In this context, courts have identified public policy as encompassing several rationales: (1) The public hires, trains, and compensates public safety workers to contend with dangerous situations; the public should not be liable for injuries to public employees resulting from the very work they were hired to perform; (2) Society has acknowledged the hazardous nature of the work performed by public safety workers through specially enacted benefits such as worker’s compensation; (3) Permitting public safety officers to recover in tort imposes a duplicative burden on taxpayers who already pay taxes in order to receive such services; (4) The rule prevents a proliferation of lawsuits; and (5) The rule encourages rather than discourages citizens to summon public safety services when needed Furstein, 590 A.2d at 943-45; Young, 569 A.2d at 1178-79; Gillespie, 395 A.2d at 20; Lanza, 581 So.2d at 132; Bycom Corp., 371 S.E.2d at 234-35 Thomas, 811 P.2d at 824-25; Winn, 777 P.2d at 725; Pottebaum, 347 N.W.2d at 645-46; Calvert, 694 P.2d at 438; Hawkins, 727 S.W.2d at 400 Flowers, 520 A.2d at 368; Kreski, 415 N.W.2d at 186-89; Krause, 787 S.W.2d at 712; Steelman, 634 P.2d at 667; Rosa, 583 A.2d at 1131-33 Santangelo, 521 N.E.2d at 771-72; Mignone, 556 A.2d at 39. [49] At least one court has recognized that the rule is premised on common sense, insofar as the rule prevents public safety officers from recovering damages in tort for performance of their jobs, which they were already obligated to perform and for which they previously received compensation Kreski, 415 N.W.2d at 183 (“The fireman’s rule is based on practicability and common sense. . . . [The rule states] that a fire fighter or police officer may not recover damages from a private party for negligence in the creation of the reason for the safety officer’s presence.”). [50] In determining whether a contemporary version of the rule should be adopted and operate to bar a public safety worker from filing suit, many courts have examined both the nature of the service provided by the public safety officer’s work, and the relationship of the officer to the public.[1] Thomas, 811 at 824-25 (finding that fire fighters provide a service that entails confronting danger, and that the public relies on them to do so); Winn, 777 P.2d at 725 (relying on Kreski, 415 N.W.2d at 186-87) Flowers, 520 A.2d at 368; Kreski, 415 N.W.2d at 186 (“The policy arguments for adopting a fireman’s rule stem from the nature of the service provided by fire fighters and police officers, as well as the relationship between these safety officers and the public they are employed to protect.”). In concluding that a contemporary version of the rule applied to fire fighters and police officers, the Missouri Supreme Court stated that the rule applied to “the official whose primary public duty is to confront danger.”Krause, 787 S.W.2d at 713. [51] The public policy rationales discussed provide a useful backdrop against which toPage 1152
evaluate whether Colorado should endorse a contemporary version of the public safety worker rule. Analysis of public policy rationales and the factors upon which courts determine the existence of a duty dictates that a public safety worker rule should be adopted in the present case.
B. [52] Colorado Law
[53] As the majority notes, in 1910, this court classified fire fighters as licensees when a surviving spouse filed an action against a building occupant after the deceased spouse, a fire fighter, sustained fatal injuries while responding to an alarm in the building. Lunt v. Post Printing and Publishing Co., 48 Colo. 316, 110 P. 203 (1910). This court recognized that “[t]he firemen are on the premises, not in discharge of any private duty due from them to the occupant, but of a public duty which they owe to the public.” Id. at 325, 110 P. at 206. This court concluded that the deceased fire fighter entered the building “in the character of a licensee, under circumstances and conditions requiring [the fire fighter’s] presence in the discharge of his duties.” Id. at 329, 110 P. at 207. This court sustained the dismissal of the complaint.
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citizens from summoning public safety services. Imposition of liability additionally subjects taxpayers to paying a second time for a service that tax dollars previously funded. Further, those public safety workers who sustain injuries in the course of executing their duties may receive special compensation, such as worker’s compensation. The burden of guarding against the harm to the plaintiff-public service worker in this case is best placed on the public safety worker, who is trained to confront the hazards that their safety employment entails.
[57] Public safety workers should be barred from bringing suits in cases where the circumstances underlying the action are the same as those requiring the public safety worker to perform their duties in the first instance. The balance of these factors dictates that we adopt a public safety worker rule in Colorado. The majority, however, declines to address whether we should reach this issue because “such a rule would not extend to a water department worker.” Maj. op. at 12. I would conversely conclude that a public safety worker rule would encompass a Water Systems Operator whose primary duty is to repair ruptured water lines. C. [58] The Scope of the Public Safety Worker Rule
[59] In the present case, Wills’ supervisor, Terry Popejoy (Popejoy), testified that Wills was a Water Systems Operator, and that water systems operators’ job responsibilities are to perform manual repair work on water lines. Popejoy testified that private persons who rupture water lines are legally required to seek the assistance of the City in repairing the line. Popejoy also testified that water systems operators receive training regarding the hazards of excavation of sites, including shoring school, certification testing, and other classes.
II.
[62] Accordingly, I dissent and would reverse the court of appeals, and remand the case with instructions to reinstate the district court order granting summary judgment in favor of Bath Excavating.
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