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Jason Antosz & A. v. Doree Allain

February 24, 2012

JASON ANTOSZ & A.
v.
DOREE ALLAIN



The opinion of the court was delivered by: Conboy, J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Argued: January 18, 2012

The plaintiffs, Jason and Jennifer Antosz, appeal an order of the Superior Court (McHugh, J.) granting summary judgment in favor of the defendant, Doree Allain. We reverse and remand.

The trial court found, or the record supports, the following facts. The defendant owns property located at 87 North River Road in Epping. On January 29, 2008, the Town of Epping Fire Department was called to the defendant's property because of a fire involving the home's hot water heater.

Jason Antosz, a volunteer firefighter with the Epping Fire Department, was among the firefighters who responded to the call.

Mr. Antosz arrived at the scene of the fire, parked his vehicle on the street, and walked up the driveway to speak with the lieutenant on the scene. The lieutenant instructed him to walk back down the driveway and retrieve a fire extinguisher from a fire truck parked on the street. The driveway was covered with packed snow and ice, and as Mr. Antosz walked down it, he slipped and fell and was seriously injured.

The plaintiffs filed suit against the defendant. Mr. Antosz claimed negligence, alleging that the driveway was in an unsafe and unreasonable condition as a result of the defendant's failure to remove snow and ice from it, and that the condition of the driveway caused his fall and resulting injury. Ms. Antosz claimed loss of consortium. The defendant moved for summary judgment arguing that Mr. Antosz's claim is barred by RSA 507:8-h (2010) (setting forth the "Fireman's Rule"). The plaintiffs objected, arguing that RSA 507:8-h does not apply to volunteer firefighters, or alternatively, that even if it does, under the statute's provisions, Mr. Antosz's negligence claim is not barred. The court granted the defendant's motion. The plaintiffs filed a motion for reconsideration, which the trial court denied. The plaintiffs now appeal.

In reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Waterfield v. Meredith Corp., 161 N.H. 707, 709 (2011). We will affirm the grant of summary judgment only if our review of that evidence discloses no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Id. We review the trial court's application of the law to the facts de novo. Id.

In granting the defendant's motion for summary judgment, the trial court made two rulings. First, it determined that Mr. Antosz's volunteer status does not preclude the application of the Fireman's Rule. The trial court based this determination both upon Mr. Antosz's status as an "employee" under the workers' compensation statute, see RSA 281-A:2, I, VII(a)(2) (2010), as well as the fact that the text of RSA 507:8-h does not expressly distinguish between paid firefighters and volunteer firefighters. Second, the trial court determined that confronting an ice and snow covered driveway at the scene of the fire was incidental to and inherent in Mr. Antosz's performance of normal duties and, therefore, the Fireman's Rule barred his negligence action.

The plaintiffs appeal both rulings. First, assuming that RSA 507:8-h applies to volunteer firefighters, we address the trial court's determination that as applied to this case, it bars Mr. Antosz's negligence claim.

Resolution of this issue requires us to interpret RSA 507:8-h. In matters of statutory interpretation, "[w]e are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole." Kenison v. Dubois, 152 N.H. 448, 451 (2005). We first look to the language of the statute and, where possible, ascribe to the language its plain and ordinary meaning. Appeal of Union Tel. Co., 160 N.H. 309, 317 (2010). We examine the statute's legislative history only if the statutory language is ambiguous. See Sutton v. Town of Gilford, 160 N.H. 43, 54 (2010). We neither consider what the legislature might have said, nor add language that the legislature did not see fit to include. In the Matter of McArdle & McArdle, 162 N.H. 482, 485 (2011).

We first adopted the Fireman's Rule in England v. Tasker, 129 N.H. 467, 468-72 (1987). In 1993, the legislature codified the rule as RSA 507:8-h, and in 1997 amended the statute. RSA 507:8-h now provides:

Firefighters . . . shall have no cause of action for injuries arising from negligent conduct which created the particular occasion for the [firefighter's] official engagement. However, this section does not affect such [firefighter's] causes of action for unrelated negligent conduct occurring during the [firefighter's] official engagement, or for other negligent conduct . . .

On appeal, the plaintiffs argue that the statute does not bar Mr. Antosz's negligence claim because his injury, caused by a slip and fall on a snow and ice covered driveway, did not arise from the conduct which created the reason for his "official engagement" at the scene, a hot water heater fire. In response, the defendant contends that RSA 507:8-h bars a firefighter's suit "based upon negligence, even when independent of the cause of his ...


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