UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

CHESTER W. PEAK, by and through his 

guardian and next friend, Gina Peak; 

DONALD “REX” LOWE; JUSTIN D. 

GIBSON; JUSTIN T. EHM; DANIEL A. 

JOHNSON; NATHAN W. ROTH; CITY 

OF KIRWIN, KANSAS, 

 Plaintiffs - Appellants, 

v. 

CENTRAL TANK COATINGS, INC., 

 Defendant - Appellee. 

No. 14-3157 

(D.C. No. 6:12-CV-01251-JAR) 

(D. Kan.)

 

ORDER AND JUDGMENT*

 

Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges. 

 

 A number of volunteer firefighters for the City of Kirwin, Kansas, and the City 

sought damages for personal injuries and property damages suffered in an explosion 

at the City’s water tower. The explosion occurred while Central Tank Coatings was 

 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 12, 2015

Elisabeth A. Shumaker 

Clerk of Court

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repairing the tower. The district court concluded plaintiffs’ claims were barred by 

the so-called Fireman’s Rule as adopted by the Kansas Supreme Court in Calvert v. 

Garvey Elevators, Inc., 694 P.2d 433, 438-39 (Kan. 1985). Under the Rule, a 

firefighter cannot recover damages for injuries from known hazards or those that can 

be reasonably anticipated at the site of a fire and are part of firefighting. 

We affirm. We conclude the Kansas Supreme Court would apply the 

Fireman’s Rule to the circumstances here, where plaintiffs could have reasonably 

anticipated the explosion. 

BACKGROUND 

 The City hired Central Tank to repair and repaint its water tower. In July 

2010, Central Tank’s crew arrived at the site with an open deck tractor trailer. A 

large, unmarked metal container box was mounted to the wood deck of the trailer. It 

was used by the crew to store various tools, oxygen/acetylene tanks, and other 

materials, including paint thinner. On the day of the fire, the crew performed work 

on the roof of the tower between 1:00 p.m. through 3:00 p.m. Starting at about 

3:00 p.m., the crew worked on the ground welding new pieces for the roof. There 

was no smoke or other signs of a fire when the crew left the site at about 5:00 p.m. 

 Shortly before 7:00 p.m., two witnesses saw smoke coming from the roof of 

the tower. They called for emergency assistance and the City’s volunteer fire 

department (including plaintiffs who were trained and experienced firefighters) was 

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dispatched to the site. The firefighters observed that the rear tires of the tractor 

trailer were on fire and they focused their efforts on extinguishing the tire fire. 

 Some, but not all, of the firefighters noticed a stack of large containers of paint 

thinner, with a bright orange label that stated in large type “FLAMMABLE LIQUID” 

some fifteen feet from the rear of the tractor trailer. Aplt. App. Vol. 1 at 224. 

Others, including Firemen Lowe and Johnson, had a discussion with Chief Roth 

about the container box, which was padlocked. Lowe explained that they should not 

cut off the lock because either the interior could be on fire or oxygen might enter and 

ignite something. Chief Roth observed green and red hoses in the area of the tractor 

trailer and assumed they were connected to oxygen/acetylene tanks inside the box. 

Fireman Ehm, who also saw the hoses, talked with Chief Roth about the hoses and 

the potential for an explosion. In fact, Ehm stated that if he had seen the hoses prior 

to extinguishing the tire fire, he would have backed off and allowed the fire to burn 

itself out. Firemen Gibson and Johnson did not recall seeing either the hoses or 

warning labels on the containers of paint thinner. 

 The presence of the paint thinner and hoses prompted Fireman Stones (not a 

party to the suit) to call Central Tank’s workmen about the container box; however, 

he did not reach anyone. Chief Roth instructed the firefighters to back away from the 

tractor trailer. During the retreat, the box exploded. 

 According to plaintiffs, Fireman Peak was too far away from Chief Roth to 

hear the instructions to retreat. He “sustained life-altering . . . injur[ies] . . . 

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including traumatic brain injury [that] will require around-the-clock care and 

supervision for the rest of his life. . . . [Fireman] Lowe sustained a severe laceration 

from the concussion of the blast[] [and] [s]everal plaintiffs sustained life-long 

hearing loss.” Aplt. Opening Br. at 4-5. 

 An investigation by the Federal Bureau of Alcohol, Tobacco, Firearms and 

Explosives (ATF) revealed that “the fire originated under the metal roof of the water 

tower within the wood substructure where a cutting operation [by Central Tank] had 

been ongoing prior to [the] fire.” Aplt. App. Vol. 2 at 497. The “fire was caused by 

an open flame and/or sparks coming into contact with the wood substructure for a 

sufficient period of time that allowed the wood to be brought to its ignition 

temperature.” Id. The Kansas State Fire Marshall explained that eventually, “wood 

members burned and fell to the ground, igniting combustibles and eventually the 

[rear] trailer tires.” Id. at 516. The ATF noted “[t]he wood decking over the rear 

half of the trailer exhibited very heavy direct flame impingement damage . . . [with] 

burn through of the wood decking in several locations which coincided with the 

location of the tires that were observed burning by several witnesses.” Id. at 496. 

The agencies concluded the paint thinner inside the container box likely provided the 

fuel for the explosion. 

 All parties moved for summary judgment. Central Tank’s motion was based 

on its affirmative defense that the suit was barred by the Fireman’s Rule. The 

plaintiffs argued that their claims fell within an exception to the Rule that allows 

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claims where injuries result from unknown, hidden dangers. The district court 

concluded that the undisputed, material facts established that the exception did not 

apply and granted summary judgment in favor of Central Tank. The court found “the 

labels on the paint thinner cans . . . warned that there were flammable materials on 

site. Indeed, [Chief] Roth stated that the combination of the paint thinner with 

warning labels and torch hoses with potentially explosive contents, prompted 

[Firefighter] Stones to call [Central Tank’s] workmen.” Id. at 816. And “[a]lthough 

Stones was unsuccessful in reaching the workmen before the explosion occurred, 

Roth and other Firefighters were concerned enough about the contents of the 

container box to discuss their concerns with each other and eventually follow Roth’s 

direction to retreat.” Id. 

STANDARD OF REVIEW 

 “We review a district court’s grant of summary judgment de novo, applying 

the same standard as the district court.” Helm v. Kansas, 656 F.3d 1277, 1284 

(10th Cir. 2011). Summary judgment is appropriate “if the movant shows that there 

is no genuine dispute as to any material fact and the movant is entitled to judgment as 

a matter of law.” Fed. R. Civ. P. 56(a). “Where . . . a defendant moves for summary 

judgment to test an affirmative defense, the defendant must demonstrate that no 

disputed material fact exists regarding the affirmative defense asserted.” Helm, 

656 F.3d at 1284 (brackets, ellipsis, internal quotation marks omitted). “Once the 

defendant makes this initial showing, the plaintiff must then demonstrate with 

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specificity the existence of a disputed material fact. If the plaintiff cannot meet this 

burden, the affirmative defense bars [the] claim and the defendant is then entitled to 

summary judgment as a matter of law.” Id. (internal quotation marks omitted). “In 

determining whether summary judgment is proper, we view the evidence in the light 

most favorable to the non-moving party.” Id. 

ANALYSIS 

This is a diversity case governed by Kansas law. Reid v. Geico Gen. Ins. Co., 

499 F.3d 1163, 1167 (10th Cir. 2007). Our “task is not to reach [our] own judgment 

regarding the substance of the common law, but simply to ascertain and apply the 

state law.” Wade v. EMCASCO Ins. Co., 483 F.3d 657, 665 (10th Cir. 2007) (internal 

quotation marks omitted). In doing so, we “must follow the most recent decisions of 

the state’s highest court.” Id. at 665-66. “Where no controlling state decision exists, 

[we] must attempt to predict what the state’s highest court would do.” Id. at 666 

(internal quotation marks omitted). Under such circumstances, it is appropriate for us 

to look to “appellate decisions in other states with similar legal principles.” Id. 

 Following the lead of other appellate courts that had adopted the Fireman’s 

Rule on the grounds of public policy, the Kansas Supreme Court held: 

[I]t is a public policy of the State of Kansas that a fire fighter cannot 

recover for injuries caused by the very wrong that initially required his 

presence in an official capacity and subjected the fire fighter to harm; 

that public policy precludes recovery against an individual whose 

negligence created a need for the presence of the fire fighter at the scene 

in his professional capacity. 

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Calvert, 694 P.2d at 438.1

 One of the decisions relied upon by the Calvert court was Clark v. Corby, 

249 N.W.2d 567 (Wis. 1977). Clark, in turn, followed the Fireman’s Rule as adopted 

on public policy grounds in Hass v. Chicago & North Western Railway, 179 N.W.2d 

885, 888 (Wis. 1970). Significantly, the Clark court also carved out an exception to 

the Rule: “[T]here is in Wisconsin a duty on the part of a property owner or occupier 

to warn a fire fighter of hidden hazards known to the owner but not known to the 

fireman.” 249 N.W.2d at 570. The Calvert court not only adopted the Rule on public 

policy grounds, but also adopted the “hidden hazard” exception: 

Public policy would not bar a fire fighter from recovery if an individual 

fails to warn of known, hidden dangers on his premises or for 

misrepresenting the nature of the hazard where such misconduct causes 

the injury to the fire fighter. A fire fighter only assumes hazards which 

are known and can be reasonably anticipated[2] at the site of the fire and 

are a part of fire fighting. 

694 P.2d at 439.3

 

1

 Part of the underpinning of the public policy rationale is the fact that injured 

firefighters are compensated for their injuries under regimes such as workmen’s 

compensation. See Calvert, 694 P.2d at 438. The plaintiff-firefighters in this case 

received such benefits. 

2

 A hazard that “can be reasonably anticipated” is not hidden. 

3

 The Calvert court also adopted two other exceptions to the Fireman’s Rule – 

intentional acts of misconduct by a third party and subsequent acts of negligence or 

misconduct upon the arrival of the firefighter at the scene – but neither of these 

exceptions apply in this case. 

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 Since its decision in Calvert, the Kansas courts have not had occasion to 

expound on the “hidden hazard” exception to the Fireman’s Rule.4

 But because the 

Kansas Supreme Court followed the reasoning of the Clark court when it adopted the 

Rule, including the “hidden hazard” exception, we predict the Kansas Supreme Court 

would follow the test announced in Clark as to when the “hidden hazard” exception 

applies. 

[T]o trigger [the] duty to warn [of a hidden hazard] there must coexist 

the following four prongs: (1) A hidden hazard – a concealed danger 

that foreseeably created an unreasonable risk to others; (2) which hidden 

hazard or danger is known to the landowner; (3) which hidden hazard or 

danger is not known and not observable by the fire fighter; and 

(4) existence of a clear opportunity for the landowner to give warning of 

the hidden hazard. 

Clark, 249 N.W.2d at 570. 

We agree with the district court that the “hidden hazard” test applies here, and 

precludes plaintiffs’ claims. First, there is no evidence that the paint thinner stored in 

the container box was a “hidden hazard” or that explosion was foreseeable. We 

address first whether the paint thinner was a “hidden hazard.” Plaintiffs attempted to 

prove a “hidden hazard” on the basis of two expert reports. One expert, Jon J. Pina, 

opined that Central Tank’s failure to post warning signs on the trailer or box violated 

numerous regulations, including the Code of Federal Regulations (CFR), the 

 

4

 Plaintiffs rely heavily on McKernan ex rel. McKernan v. General Motors 

Corp., 3 P.3d 1261 (Kan. 2000). That reliance is misplaced because McKernan

involved product defect claims against a third party who attempted to invoke 

protection of the Fireman’s Rule. 

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Occupational Safety & Health Administration (OSHA), and the American National 

Standards Institute (ANSI). In particular, plaintiffs argue that Mr. Pina stated that 

Central Tank’s “cargo box on the trailer . . . violated OSHA, ANSI, and CFR’s 

because the box was not marked with any signage to alert others that the contents of 

the box were hazardous or flammable.” Aplt. Opening Br. at 19. Plaintiffs’ other 

expert, Robert C. Krause, opined that “[t]he responding firefighters had no prior 

knowledge of the storage of these flammable materials within the metal container and 

the lack of any exterior signage or warnings contributed to their lack of information.” 

Aplt. App. Vol. 2 at 491. 

 There are several problems with this argument. Setting aside the issue of 

foreseeability, which we discuss below, Mr. Pina’s report does not cite a single 

regulation that says storing paint thinner in a closed container is a hazard, or that a 

box with such contents must be marked. Nor does Mr. Krause identify any 

requirement that the container box be marked. 

As to foreseeability, plaintiffs argue that Mr. Pina “opined that the close 

proximity of [Central Tank’s] truck and metal storage container to the area where 

welding and cutting activities were taking place significantly increased the hazard.” 

Aplt. Opening Br. at 19-20. However, this ignores that neither the fire nor ensuing 

explosion were foreseeable. “An accident that is not reasonably foreseeable by the 

exercise of reasonable care and prudence is not sufficient grounds for a negligence 

action.” Woodruff v. City of Ottawa, 951 P.2d 953, 956 (Kan. 1997). “Natural and 

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probable consequences are those that human foresight can anticipate because they 

happen so frequently they may be expected to recur.” Chaplin v. Gas Serv. Co., 

397 P.2d 317, 320 (Kan. 1964) (internal quotation marks omitted). The undisputed 

material facts are that several hours after Central Tank completed its work on the roof 

and left the site, the wooden members of the tower caught fire, fell to the ground, 

caught the surrounding grass on fire and eventually spread to the tires of the trailer. 

This domino chain of events was unforeseeable. 

More to the point, these unsworn expert reports are not competent evidence on 

summary judgment. See Fed. R. Civ. P. 56(c)(4) advisory committee’s notes (2010 

Amendments) (Although “[a] formal affidavit is no longer required,” Rule 56(c)(4) 

still requires that “a written unsworn declaration, certificate, verification, or 

statement [be] subscribed in proper form as true under penalty of perjury [under 

28 U.S.C. § 1746] to substitute for an affidavit.”). Because neither report contains 

proper subscriptions, they cannot be considered on summary judgment. 

 Second, despite plaintiffs’ argument that “[t]he explosion was caused by 

inappropriate storage of hazardous and flammable chemicals in the ventless metal 

box,” Aplt. Opening Br. at 4 (emphasis added), there is no evidence that it was 

improper to store paint thinner in the container box. There is also no evidence that 

Central Tank knew that the storage of paint thinner was dangerous. 

 Third, the danger was known or could have been reasonably anticipated, and 

thus not hidden. A tire fire was burning directly under the container box. Although 

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no one knew precisely what was inside the box, Chief Roth observed green and red 

hoses in the area of the trailer, which he assumed were connected to 

oxygen/acetylene tanks inside the box. Fireman Ehm and Chief Roth discussed their 

concerns about the presence of the hoses and the potential for an explosion. And 

even though Firemen Lowe and Johnson may not have observed the hoses, they 

discussed with Chief Roth the danger of opening the box, because either the interior 

could be on fire or opening the box could allow oxygen to enter and ignite its 

ingredients. 

 We acknowledge that the open presence of several containers of paint thinner 

labeled “FLAMMABLE LIQUID” near the rear of the trailer, alone, is not dispositive 

for Central Tank. But the presence of these materials, coupled with the other indicia 

of danger, including a tire fire burning directly under the container box which several 

firefighters believed contained oxygen/acetylene tanks, created a situation where an 

explosion could be reasonably anticipated. As the least experienced firefighter on the 

scene explained, “anything can happen” when fighting a fire where a container box is 

involved. Aplt. App. Vol. 2 at 778. 

 Fourth, there was no chance for Central Tank to give a clear warning because 

it was unaware of the fire, which first manifested itself two hours after its crew left 

the site. Nor did Central Tank know that plaintiffs had responded to the fire either 

prior to or during the explosion. 

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We have reviewed the matter de novo and conclude that plaintiffs failed to 

demonstrate the existence of a disputed material fact regarding whether they could 

have reasonably anticipated the explosion and their claims are therefore barred by the 

Fireman’s Rule as adopted in Kansas. 

The judgment of the district court is affirmed. 

 Entered for the Court 

 Timothy M. Tymkovich 

 Circuit Judge 

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