ABELL v. WINTERSET FIRE FIGHTERS ASS’N, INC, 710 N.W.2d 258 (Iowa App. 2005)


CHARLES H. ABELL, DESIREE ABELL, WILMA PERRIN, and the ESTATE OF ROBERT PERRIN, WILMA PERRIN, Executor, Plaintiffs-Appellants, v. WINTERSET FIRE FIGHTERS ASSOCIATION, INC., a/k/a WINTERSET FIRE DEPARTMENT, CITY OF WINTERSET, CONNIE MARKER, KENT WHITE, and DALE CLEGHORN, Fire Chief, Defendants-Appellees.

No. 5-775 / 05-0544Court of Appeals of Iowa.
Filed November 23, 2005

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the Iowa District Court for Madison County, David L. Christensen, Judge.

The plaintiffs appeal from the district court’s order granting Dale Cleghorn and the City of Winterset’s motion for summary judgment. AFFIRMED.

A. Zane Blessum of Blessum Law Firm, Winterset, and Catherine K. Levine, Des Moines, for appellants.

Matthew J. Haindfield of Bradshaw, Fowler, Proctor Fairgrave, P.C., Des Moines, for appellees Winterset Fire Fighters Association, Inc., City of Winterset, and Dale Cleghorn.

James E. Nervig of Brick, Gentry, Bowers, Swartz, Stoltze, Schuling Lewis, P.C., Des Moines, for appellees Marker and White.

Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.

EISENHAUER, J.

The plaintiffs appeal from the district court’s order granting Dale Cleghorn and the City of Winterset’s motion for summary judgment. They contend the district court erred in concluding uncontroverted facts showed the defendants were immune from liability.

On April 5, 2002, Charles Abell, Desiree Abell, Wilma Perrin, and the estate of Robert Perrin filed an action against the Winterset Fire Fighters Association, the City of Winterset, Connie Marker, Kent White, and fire chief Dale Cleghorn alleging negligence in an April 7, 2000 explosion that injured Charles Abell and killed Robert Perrin. On the date of the explosion, Abell and Perrin were in the process of removing fuel tanks from a property in Winterset. During this process, a grass fire ignited. The Winterset Fire Department responded and extinguished the fire. Cleghorn then gave Abell and Perrin permission to continue removing the second fuel tank from the property. Upon resuming the use of a cutting torch, the explosion occurred.

The issue now before us is whether defendants Cleghorn and the City of Winterset are immune from liability under Iowa Code section 670.4(11) (2003). The district court so found and granted these defendants summary judgment. We review rulings on motions for summary judgment for errors at law. Sain v. Cedar Rapids Cmty. Sch. Dist., 626 N.W.2d 115, 121 (Iowa 2001). The record before the district court is reviewed to determine whether a genuine issue of material fact existed and whether the district court correctly applied the law. Id. We review the facts in the light most favorable to the party resisting the motion. McIlravy v. North River Ins. Co., 653 N.W.2d 323, 328 (Iowa 2002). The resisting party has the burden of showing a material issue of fact is in dispute. Id.

Iowa Code section 670.4(11) provides municipal immunity for any act or omission in connection with an emergency response. Immunity is not limited solely to the emergency, but rather extends to the occurrence and continuation of an emergency response. Adams v. City of Des Moines, 629 N.W.2d 367, 370
(Iowa 2001). In the context of firefighting, actions considered part of the emergency response can include “overhaul, salvage, and investigation — making sure all embers have been extinguished, trying to salvage what is left of the building, and attempting to determine the cause of the fire.” Id. at 370-71.

We conclude the district court did not err in finding defendants immune from liability and thereby granting summary judgment. The evidence before us shows Cleghorn’s acts occurred in connection with an emergency response, specifically the investigation of the grass fire. There is no dispute the grass fire had been extinguished prior to the explosion. However, the fire department was continuing with its overhaul and investigation duties at the scene. Dale Cleghorn’s affidavit states the fire department was still performing its duties in regard to the emergency response call when the explosion occurred. Specifically, his affidavit states witnesses were being interviewed and an investigation into the cause of the fire was ongoing. Cleghorn’s affidavit also states the department was continuing to look for smoldering embers to ensure the fire was completely extinguished, and that fire fighters continued to man charged hoses. In his deposition, Cleghorn testified the fire fighters stayed on scene to make sure there was no fire under the tank. He testified that at the time of the explosion he had just finished interviewing Merle Hitchcock and was looking at a street sign and writing down the address of the ground fire while walking back to a piece of fire department apparatus. When the tank exploded, he was writing down the address for his investigative report. Fire Fighter Robert Hendricks testified in his deposition that the hoses were still charged at the time of the explosion in case additional “hot spots” were discovered. Hendricks did not recall Cleghorn giving an order to break down the hose lines. Finally, Merrill Hitchock’s affidavit states the fire department still controlled the area at the time of the explosion, including having the street blocked off.

The evidence, when viewed in the light most favorable to the plaintiffs, reveals the fire department was continuing to investigate the grass fire and monitor the scene for any hot spots, embers, or additional, unseen fire. Because these acts were performed in connection with an emergency response, the defendants are immune from liability and summary judgment was properly granted.

AFFIRMED.