2011-445, Jason Antosz & a . v. Doree Allain

The plaintiffs, Jason and Jennifer Antosz, appeal an order

brief and orally), for the defendant. ___________________________ Backus, Meyer & Branch, LLP, of Manchester (Barry M. Scotch on the

(Christopher E. Grant on the brief and orally), for the plaintiffs. a.m. on the morning of their release. T Boynton, Waldron, Doleac, Woodman & Scott, P.A., of Portsmouth reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address:

THE SUPREME COURT OF NEW HAMPSHIRE v.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

page is: http://www.courts.state.nh.us/supreme.

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as in the light most favorable to the non-moving party. Waterfield v. Meredith p. 2 the affidavits and other evidence, and all inferences properly drawn from them,

In reviewing the trial court’s grant of summary judgment, we consider

for reconsideration, which the trial court denied. The plaintiffs now appeal. barred. The court granted the defendant’s motion. The plaintiffs filed a motion

does, under the statute’s provisions, Mr. Antosz’s negligence claim is not

507:8-h does not apply to volunteer firefighters, or alternatively, that even if it

(setting forth the “Fireman’s Rule”). The plaintiffs objected, arguing that RSA judgment arguing that Mr. Antosz’s claim is barred by RSA 507:8-h (2010) Antosz claimed loss of consortium. The defendant moved for summary

as applied to this case, it bars Mr. Antosz’s negligence claim.

and that the condition of the driveway caused his fall and resulting injury. Ms.

applies to volunteer firefighters, we address the trial court’s determination that The plaintiffs appeal both rulings. First, assuming that RSA 507:8-h

condition as a result of the defendant’s failure to remove snow and ice from it, negligence, alleging that the driveway was in an unsafe and unreasonable The plaintiffs filed suit against the defendant. Mr. Antosz claimed

therefore, the Fireman’s Rule barred his negligence action.

workers’ compensation statute, see determination both upon Mr. Antosz’s status as an “employee” under the not preclude the application of the Fireman’s Rule. The trial court based this

incidental to and inherent in Mr. Antosz’s performance of normal duties and, that confronting an ice and snow covered driveway at the scene of the fire was paid firefighters and volunteer firefighters. Second, the trial court determined

made two rulings. First, it determined that Mr. Antosz’s volunteer status does slipped and fell and was seriously injured. covered with packed snow and ice, and as Mr. Antosz walked down it, he fire extinguisher from a fire truck parked on the street. The driveway was

the fact that the text of RSA 507:8-h does not expressly distinguish between

In granting the defendant’s motion for summary judgment, the trial court

Id. We review the trial court’s application of the law to the facts de novo. Id. The lieutenant instructed him to walk back down the driveway and retrieve a material fact, and the moving party is entitled to judgment as a matter of law. judgment only if our review of that evidence discloses no genuine issue of Corp., 161 N.H. 707, 709 (2011). We will affirm the grant of summary

street, and walked up the driveway to speak with the lieutenant on the scene. Mr. Antosz arrived at the scene of the fire, parked his vehicle on the

among the firefighters who responded to the call. Jason Antosz, a volunteer firefighter with the Epping Fire Department, was p. 3 (Quoting Day v. Caslowitz

described as incidental to and inherent in the performance of normal duties.’”

[the officer’s] enforcement presence on the property that it may be accurately walkway at a potential crime scene is so closely connected to the purpose of [Rhode Island] Court reasoned that . . . ‘confronting a snow-and-ice-covered

arising from a slip and fall on an icy walkway, the trial court stated: “The

that held that the Fireman’s Rule barred a police officer’s negligence action Antosz] was performing his duties as a firefighter.” Citing a Rhode Island case The trial court determined that the slip and fall “occurred while [Mr.

expected to perform.”

premises, when he is injured in the course of the duties he is called upon and negligence, even when independent of the cause of his presence at the defendant contends that RSA 507:8-h bars a firefighter’s suit “based upon

his “official engagement” at the scene, a hot water heater fire. In response, the

unambiguous language of our statute.

covered driveway, did not arise from the conduct which created the reason for negligence claim because his injury, caused by a slip and fall on a snow and ice On appeal, the plaintiffs argue that the statute does not bar Mr. Antosz’s

action. The trial court’s conclusion, however, is not supported by the

negligent conduct . . . inherent in the performance of his duties, and ruled that the statute bars his occurring during the [firefighter’s] official engagement, or for other such [firefighter’s] causes of action for unrelated negligent conduct

rationale, the trial court found that Mr. Antosz’s fall was incidental to and [firefighter’s] official engagement. However, this section does not affect, 713 A.2d 758, 761 (R.I. 1998).) Agreeing with this

negligent conduct which created the particular occasion for the Firefighters . . . shall have no cause of action for injuries arising from

in 1997 amended the statute. RSA 507:8-h now provides:

see fit to include. In the Matter of McArdle & McArdle

Kenison v. Dubois legislature as expressed in the words of the statute considered as a whole.” 468-72 (1987). In 1993, the legislature codified the rule as RSA 507:8-h, and We first adopted the Fireman’s Rule in England v. Tasker, 129 N.H. 467,

(2011).

the legislature might have said, nor add language that the legislature did not Sutton v. Town of Gilford, 160 N.H. 43, 54 (2010). We neither consider what statute’s legislative history only if the statutory language is ambiguous. See meaning. Appeal of Union Tel. Co., 160 N.H. 309, 317 (2010). We examine the the statute and, where possible, ascribe to the language its plain and ordinary

, 152 N.H. 448, 451 (2005). We first look to the language of

of statutory interpretation, “[w]e are the final arbiter of the intent of the Resolution of this issue requires us to interpret RSA 507:8-h. In matters occurring during p. 4 statutory bar does not affect “causes of action for unrelated negligent conduct the language of RSA 507:8-h. She points to the provision that states that the

Nonetheless, the defendant contends that her position is supported by

statute. h, the defendant may not avail herself of the limited immunity conferred by the which created the particular occasion for [his] official engagement,” RSA 507:8-

injury giving rise to Mr. Antosz’s claim did not arise from “negligent conduct

the condition of which was unrelated to the fire. Accordingly, because the that Mr. Antosz’s injury occurred as a result of a slip and fall on the driveway, the scene was a fire involving the home’s hot water heater. Nor do they dispute

negligent conduct occurring during the [firefighter’s] official engagement, or for section does not affect such [firefighter’s] causes of action for unrelated subject sentence of the statute. In full, the sentence states: “However, this

Here, the parties do not dispute that the reason firefighters were called to

on the scene. This argument, however, ignores what follows immediately in the

injury was the reason for his presence on the scene. RSA 507:8-h. barred is whether the negligently-created risk that caused the firefighter’s

conduct that led to the condition of the driveway occurred prior to his arrival

conduct occurring prior

conduct” has no qualification. Thus, we hold that the plain language of the other negligent conduct. . . .” Id. (emphasis added). The term “other negligent

statute, the only relevant inquiry in determining whether a cause of action is

the defendant, Mr. Antosz’s claim is barred because the allegedly negligent

and argues that it necessarily follows that the statute bars claims for negligent

the [firefighter’s] official engagement,” id. (emphasis added),

“arising from used to contradict the text of RSA 507:8-h. Under the plain language of the firefighting duties. Rather, the plain language of RSA 507:8-h bars only suits

the enactment of RSA 507:8-h.” See and philosophical underpinning for the Firemen’s Rule . . . expressed before In support of her argument, the defendant relies upon the “public policy

justifications for the judicial adoption of the Fireman’s Rule cannot now be all negligence claims based upon injury suffered during the performance of Union Tel. Co., 160 N.H. at 317, and our previous discussions of the policy statutory language “according to its plain and ordinary meaning,” Appeal of such as that set forth in RSA 507:8-h, are strictly construed. Cecere v. Loon N.H. 433, 437 (1992); Tasker, 129 N.H. at 468, 471-72. However, we construe

[firefighter’s] official engagement.” (Emphases added.)

negligent conduct which created the particular occasion for the

arguments and the trial court’s ruling, the language of the statute does not bar Mt. Recreation Corp., 155 N.H. 289, 291 (2007). Contrary to the defendant’s

Statutory grants of immunity that bar common law rights to recovery, p. 5 Reversed and remanded

the trial court erred in granting the defendant’s motion for summary judgment. We hold, therefore, that based upon the plain language of RSA 507:8-h,

volunteer firefighters at all, but rather applies only to paid firefighters.

DALIANIS, C.J., and HICKS and LYNN, JJ., concurred.

holding on one issue was dispositive).

Mr. Antosz also briefly argues that the statute does not apply to applies only to claims by paid firefighters. See bar Mr. Antosz’s negligence claim, we need not decide whether the statute action). Because we conclude that the plain language of RSA 507:8-h does not

noting that volunteer firefighters “although uncompensated, undertake the

conclusions. Compare

134 N.H. 225, 230 (1991) (declining to address parties’ other arguments where

official engagement on the scene. regardless of whether that conduct occurs during or prior to the firefighter’s firefighter and permitting the volunteer firefighter to pursue the cause of 251-53 (Mich. 1998) (declining to apply the Fireman’s Rule to a volunteer

858-60 (Neb. 1979) (applying the Fireman’s Rule to a volunteer firefighter and

confronted with this issue, courts in other jurisdictions have come to opposite

allegedly negligent conduct that did not create the occasion for his visit, statute permits a firefighter to pursue causes of action for injuries arising from