1 A lthough the case w as tried to Grainger W . McIlhany, sitting w ithout a jury, t h e judgm ent was signed by John T. Forbis, also sitting by assignm ent. NO. 07-01-0249 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A MARC H 20, 2002

______________________________ GREENBELT ELECTRIC COOPER ATIVE, APPELLANT V. LYNN MILLS AND BARRY SANDERS, APPELLEE

_________________________________ FROM THE 31 ST DISTRICT COURT OF W HEELER COUNTY; NO. 10,3 72-A; HO NORABLE GRAINGER W . McILHANY, 1 JUDGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Gre enb elt

Electric Cooperative presents this appeal froma judgm ent following a non-j urytrial that Lynn Mills recover $130,000 for per sonal injuries plus pre-judgm ent interest, and that

Barry Sande rs recover $10,000 for personal inj uries plus pre-judgm ent2 The Cit y of Sh am roc k isnot

a pa rty to t his a ppe al. 3 SeeCam pus Management, Inc. v. Kim ball, 991 S .W.2d 948, 950 (Tex.A pp.–Fort W orth 199 9, pet. denied). 2 interest. The judgm ent f urther provides that the City of S hamroc k, intervenor, recover $36 ,948.95 from Greenbelt. 2 Presenting only one issue, Greenbelt contends that the Fireman’s Rul e 3 precludes recovery by M ills and Sanders for personal injuries sustained in the course and scope of their duties as firemen. B ased upon the rationale expressed he re i n, we a ff i rm. Gre enb elta cknowledges th at the underlying facts are undisputed and that the question presented i s one of law. Thus, our rev iew of t he f acts w ill be lim ited to o nly those necess aryto adequatel y address the legal issue. Following a grass fire that occurred on Decem ber

10, 1996, Mills and Sanders, m embers of the Sh amr ock Volunteer Fire Departme nt, filed suit against Greenbelt to recover dama ges for injuries they s ustained while they were engaged in fighting the fire. Am ong other things, they alleged that as a res ult of atre e lim b ru bbin g ag ains t Gr een belt ’s elec

tric lin e, the line broke and ignited foliage an d g ra ss i mmedi at el y un de r i t ca us in g t he fi re to spr ea d t o a djo ining pro perty. Contending that t heir inju ries were proxi m ate ly c aus ed b y Gr een belt ’s neg ligen ce in failing to keep trees trim med near its power lines, Mills and Sanders soug ht dam ages for injuries received in fighting the fire after it spread to property adjacent

to Greenbelt’s electric line easem ent. Am ong other de fenses, Greenbe lt conten ded that Mills and S anders w

ere3

volunteer

fi re men an d t ha t t he i r c l ai ms were barred under t he com mon law Fireman’s R ule. Because this

app eal p res ents on lya qu est ion of law , we w ill apply a de novo standard of re vi ew. Barber v. Colorado Independe nt School Dist., 901 S. W .2d 447, 450 (Tex . 1995). Byits only iss ue, Gree nbelt con tends t he Firem an’s R ule should p reclude recovery byMills and Sanders for personal injuries sustained in the course and scope of their duties as fire fighters. In support of its contention , Greenbel t argues that i n the inter estof p ublic poli cywe should apply the Fireman’s Rule to the facts of the underlying case and reverse and render judgm ent that Mills and Sanders take nothing. W e disagree. W ith com menda ble professional candor, Greenbelt’s counsel acknow ledge that Texascase law recog nizes the Fireman’s R ule of liabil ity. That rule, as discussed in Juhl v. Airington, 936 S.W. 2d 640, 645-46 (Tex. 1996) (concurring opinion), Campus Managem ent, Inc . v. Kim ball , 991 S.W.2d 948, 950 (Tex.App.--Fort Worth 1999, pet. denied), and Peters v. Detsco, Inc., 820 S.W.2d 38, 40-41 (Tex.App.--Hous ton [14th Dist.] 1991, writ denied), applies rules of prem ises liabil ity to fire fighters injured w hile fighting a fire. As stated in Kimball : Texashas long em ployed the Fireman’s R ule in premises liability cases. As we d is cu ss b el ow, the Texasversion of the Fireman’ s Rule provides that a fire figh ter

is a licensee to whom

a property ow ner or

ope rator ow es cert ain duties: not to inj ure the fire fi ghter by will ful, wanton, or gross negligence; to warn of

know n da nge rou s c ond ition s of w hich thefirefigh ter

is unaware; and not to injurethe firefighter through active negligence after the fi re fighter arrives at

the premise s to combat the bl az e.4 Justice Abbott j oined in the concurring opinion. 4 991 S.W .2d at 950. (Em phasis added). Notw ithstanding this rule, proffering t h e concurring opinion of Justice Gonzalez 4 in Juhl , 936 S.W.2d at 645 -46, Greenbel t also argues that weshould extend theFirem an’s Rul e because public policy justifies its application mo re broadly than the premises liab ili ty context. In his concurre nce, Justice Gonzalez m akes a scho larly rev iew of t he h isto ry a nd s tat us of th e Fir em an’ s R ule in various jurisdictions and articulates his reasons for ex tending the rules of prem ises liabil ity to non-prem ises cases as presented here. Howe ver, the m ajority declined to extend th e rule without com ment

. Moreover, legisl ative pow er isdef ined bro adly

in Texas and includes the pow er to setpublic policy. See Tex. Cons t. art. III, §1; see also FM Properties Oper ating v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000). Also, under this provision, the Legislature m ay change com mon law. M iddleton v. Texas Pow er & Light Co, 108 Te x. 96, 185 S.W. 556, 560 (1916). Although the Legislature has adopted significant changes affecting traditional com mon law tort rem edies, i.e . Tex. Civ. P rac. & Rem . Code Ann. §§ 33.0 01-33.01 7 (Vernon 1997 & Supp. 2002), and m ay be in a better position than the courts to fashion new tort rules, the Legislature has als o declined to extend the Firem an’s Rule as suggested by Jus tice Gonzalez and presented by Greenbe lt.5

Considering that t he Texas Su prem e Court has declined to extend the rule to nonpremisescasesand theLegislaturelikewise has not enacted a different rule, it would be inappropriate for this Court as an interm ediate ap pellate cou rt to depart fromthe esta blis hed com mon law rule. See generally Penrod Drilling Corp. v. W illi ams , 868 S.W.2d 294, 296 (Tex. 1993) (noting that Tex as courts are obligated to follow only higher Texascourts and the United S tates Su pre m e Co urt ). G ree nbe lt’ s s ole issue is overruled. Accordingly, the j udgme nt of the trial court is affirmed.

Don H. Rea vis Justice Publish.