                                        In the
                        Missouri Court of Appeals
                                 Western District
JAMES C. RHEA, INDIVIDUALLY                  )
AND AS PLAINTIFF AD LITEM FOR                )
MARGARET RHEA, ET AL.,                       )   WD77301
                                             )
               Respondents,                  )   OPINION FILED: March 3, 2015
                                             )
v.                                           )
                                             )
NORMAN SAPP,                                 )
                                             )
                Appellant.                   )

              Appeal from the Circuit Court of Henry County, Missouri
                       The Honorable Michael C. Dawson, Judge

     Before Division Three: Gary D. Witt, Presiding Judge, Joseph M. Ellis, Judge and
                               Thomas H. Newton, Judge


        This appeal arises from an action for wrongful death brought by the estate of

Margaret Rhea ("Rhea") against multiple defendants after her car was struck by a fireman

responding to a fire. The claims against all defendants were settled with the exception of

the claims against Norman Sapp ("Sapp"), the individual fireman who caused the

accident. The trial court entered judgment in favor of Rhea, and Sapp brings two points

on appeal. He argues that as a firefighter, he should be shielded from liability and
afforded the protections of either the official immunity doctrine or the public duty

doctrine. Because we agree with Sapp that official immunity applies, we reverse.

                                     Factual and Procedural History1

         On May 8, 2009, Gilbert Watson ("Watson") was driving a semi tractor-trailer rig

with a forty-foot trailer hauling bulls. He was traveling westbound on Missouri Highway

52 between the cities of Deep Water and Montrose.

         Watson was passed by another automobile that pulled in front of him, and the

driver of that vehicle began abruptly tapping on his brakes to indicate he wanted Watson

to stop his vehicle. After stopping, Watson was informed that smoke was coming from

the back of his trailer.

         Watson went to the back of his vehicle to investigate. He could smell smoke and

noticed that the inside tire on the left rear axle was on fire.                               Watson had a fire

extinguisher in his truck that he used to knock the fire down, but the fire reignited. When

Watson became unable to extinguish the fire with his extinguisher, he dialed 911 and

informed dispatch that a tire on a cattle trailer was on fire, that the trailer contained bulls,

and that he was halfway between Deepwater and Montrose on Highway 52. While

waiting on emergency responders to help extinguish the fire, Watson used a cup to get

water out of the ditch to pour on the burning tire. Rhea was driving eastbound on

Highway 52 and saw the cattle trailer on fire in the lane of traffic.                                  She stopped

approximately one hundred yards behind it waiting for the highway to clear.


         1
          The facts are drawn from the Joint Stipulation of Facts that the parties submitted to the trial court as well
as from uncontroverted facts in the record.

                                                           2
       Sapp has served on the Montrose Fire Department since 1970 and was serving as

the chief at the time of these events. Sapp drafted the Department's standard operating

procedures approximately ten to fifteen years before litigation of this case.           The

procedures of the department state that if a fireman was to drive in excess of the rules of

the road, he was to engage the vehicle's lights and sirens. Pursuant to the procedures,

when a firefighter receives a pager "tone," he or she is expected to respond pursuant to

the guidelines, protocols, and statutes in place. He or she is also required to respond in an

appropriate manner to the situation depending on the weather conditions and the severity

of the situation presented.

       Sapp lives on Highway 52 in Montrose. Sapp was at home, sometime around or

after 9:15 p.m., when he received a report of a fire on a cattle trailer on westbound

Highway 52 halfway between Montrose and Deepwater. Sapp carried the pager utilized

by the Montrose Fire Department that communicated verbal information from the

dispatcher, and in this instance the pager communicated that a cattle trailer was on fire.

When Sapp was dispatched, he was not given instructions on how to respond to the call.

Sapp was responding in his capacity as fire chief.

       In response to the dispatch, Sapp was driving his personal vehicle, a 2005

Chevrolet pickup that was equipped with a siren and a dashboard light. The siren had a

"wail" that produced an up-and-down sound and also a "yelp" that was "ear catching" and

high pitched. Sapp went to the scene of the fire with his emergency lights on but did not




                                             3
engage the siren.2 Sapp had knowledge of Highway 52 at the location where dispatch

reported the trailer was located. Prior to responding to the scene of the fire, Sapp had

traveled this road hundreds of times. Sapp believed that the highway was narrow at the

location where dispatch indicated the fire was located and that a vehicle on fire would

potentially block the highway.

           The trailer fire was actually much closer to Sapp's location than was reported to

him by dispatch. On the way to the scene on Highway 52, Sapp was traveling at

approximately 80 miles per hour in a 55 mile per hour zone. He observed several cars

stopped in the oncoming lane of traffic.3 As he proceeded to pass the stationary vehicles

in the opposite lane, a person stepped from between the vehicles into his lane of traffic.

He moved onto the edge of the roadway to miss the pedestrian and lost control of his

vehicle. He overcorrected and traveled back across the center line into the oncoming lane

of traffic.

           At approximately 9:28 p.m., Sapp's vehicle collided head-on with Rhea's vehicle,

which remained stopped approximately one hundred yards behind the burning trailer.

She was killed as a result of the collision. Sapp was thrown from his vehicle and severely

injured but survived.

           In this action for wrongful death, all defendants except Sapp reached a settlement

with the plaintiffs concerning the claims against them. Sapp filed a motion for summary

judgment, alleging that he was not liable due to both the official immunity doctrine and

           2
               Sapp testified in his deposition that he intentionally did not use his siren for fear of scaring the bulls in the
trailer.
           3
            The trailer that was on fire was one of the vehicles he observed, but he did not believe this was the scene
of the fire because the location identified by dispatch was further down the highway.

                                                                 4
the public duty doctrine. That motion was denied. The remaining parties entered into an

agreement under Section 537.0654 and then asked the trial court to rule on "the sole

remaining issue" of whether Sapp should be immune from liability pursuant to either

"official immunity" or the "public duty doctrine." The parties agreed that Sapp would file

a Motion to Reconsider the denial of his prior Motion for Summary Judgment to argue

these immunity issues, and they further agreed that the official immunity and public duty

determinations by the trial court would be subject to appeal by either party.

         The parties prepared a "Joint Stipulation of Facts" which set forth certain limited

agreed-upon facts. The parties also submitted a written record that contained portions of

multiple depositions that had been taken during discovery, and they filed additional

"controverted" and "uncontroverted" statements of fact with supporting documentation.

The parties also stipulated that Rhea's damages were in the amount of $618,241 if the

defenses were determined by the trial court to be inapplicable. Following additional legal

briefing and argument by counsel, the case was submitted to the trial court on these

records to determine the sole issue of the application of the defenses. The trial court

considered "the parties' oral arguments, legal briefing, written arguments, exhibits and

deposition testimony presented with said briefing" and concluded that Sapp was not

entitled to a defense on either basis. The court entered judgment for Rhea and awarded

damages in the stipulated amount of $618,241. Sapp appeals.

         Further facts are set forth below as necessary.

         4
          All statutory references are to RSMo 2000 as currently supplemented unless otherwise indicated. An
agreement pursuant to section 537.065 provides for a claimant and a tort-feasor to settle a claim and contract to limit
recovery of damages to specified assets such as insurance coverage.

                                                          5
                                              Standard of Review

         We review de novo questions of law decided in court-tried cases. Pearson v.

Koster, 367 S.W.3d 36, 43 (Mo. banc 2012) (citing StopAquila.org v. City of Peculiar,

208 S.W.3d 895, 899 (Mo. banc 2006)). The judgment of the trial court will be affirmed

"unless there is no substantial evidence to support it, it is against the weight of the

evidence, or it erroneously declares or applies the law." Murphy v. Carron, 536 S.W.2d

30, 32 (Mo. banc 1976).

         When a claim of error on appeal presents a mixed question of law and fact, the

reviewing court applies the same principles noted above except that it must segregate the

parts of the issue that are dependent on factual determinations from those that are

dependent on legal determinations. Pearson, 367 S.W.3d at 44. "[W]hen presented with

an issue of mixed questions of law and fact, a [reviewing court] will defer to the factual

findings made by the trial court so long as they are supported by competent, substantial

evidence, but will review de novo the application of the law to those facts." Id. (citation

omitted).

         "Therefore, it is a matter of deferring to the fact-finder in its assessment of the

facts and then applying de novo review in determining how the law applies to those

facts." Id. (citation omitted).5 In the absence of specific findings of fact, the trial court's



         5
            Sapp argues that because the case was submitted on stipulated facts to the trial court in a bench-tried case,
this case does not involve the resolution of conflicting testimony and thus our review is de novo. Rhea argues that
our standard of review is de novo based on the denial of Sapp's motion for summary judgment. Neither is accurate.
The stipulated facts consisted of only two paragraphs of facts relevant to the analysis of the issues presented in this
case. Clearly, the court, as it stated in its judgment, considered much more than the two paragraphs of stipulated
facts filed by the parties. Certain basic facts were stipulated, others remained disputed, and the record contains
numerous uncontroverted facts.

                                                           6
findings are considered as having been found in accordance with the judgment. Rule

73.01(c).

                                                     Analysis

         In his first point, Sapp argues that because he was a public employee performing a

discretionary duty, he is entitled to official immunity. This judicially-created doctrine

"protects public employees from liability for alleged acts of negligence committed during

the course of their official duties for the performance of discretionary acts." Nguyen v.

Grain Valley R-5 Sch. Dist., 353 S.W.3d 725, 729-730 (Mo. App. W.D. 2011) (citing

Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008)). "The function

of official immunity is to protect individual government actors who, despite limited

resources and imperfect information, must exercise judgment in the performance of their

duties." Davis v. Lambert–St. Louis Int'l Airport, 193 S.W.3d 760, 765 (Mo. banc 2006).

         "Whether an act can be characterized as discretionary depends on the degree of

reason and judgment required." Nguyen, 353 S.W.3d at 729-30 (citing Southers, 263

S.W.3d at 610). "A discretionary act requires the exercise of reason in the adaptation of




          The court noted that "after extensive briefing by both sides," and after "considering the parties' oral
arguments, legal briefing, written arguments, exhibits and deposition testimony presented with briefing," it found
that Sapp was "not entitled to the protections of official immunity." As for the denial of summary judgment, Sapp
did not appeal the denial of summary judgment; rather, Sapp appealed the court's entry of judgment in Rhea's favor
and its conclusion that, based on these facts, Sapp failed to meet his burden of proof and was not entitled to the
affirmative defense of official immunity. In essence, this was a trial based on the written record and on limited
issues because, while many facts were uncontroverted and no live witnesses were called to testify, some factual and
credibility determinations were left to the discretion of the trial court. Thus, we review de novo whether the trial
court correctly applied the law to the facts as it determined. However, to the extent that the facts of the case were
contested, we defer to the trial court's assessment of the contested evidence. White v. Dir. of Revenue, 321 S.W.3d
298, 307 (Mo. banc 2010) (citation omitted). Evidence is uncontested when there are stipulated facts or when a
party has admitted in his pleadings, by counsel, or through the party's testimony the basic facts of the other party's
case. Id. at 308.

                                                          7
means to an end and discretion in determining how or whether an act should be done or

course pursued." Id.

       "The determination of whether an act is discretionary 'is made on a case-by-case

basis, considering (1) the nature of the public employee's duties; (2) the extent to which

the act involves policymaking or exercise of professional judgment; and (3) the

consequences of not applying official immunity.'" Id.

       "Official immunity is only available to a public official when he exercises

legitimate authority in a discretionary manner." Id. at 731 (citing State v. Edwards, 337

S.W.3d 118, 121 (Mo. App. E.D. 2011)).          "Acts which exceed a public official's

legitimate authority are not discretionary and are not protected by official immunity." Id.

As the party asserting the affirmative defense of official immunity, an individual

defendant bears the burden of pleading and proving that he is entitled to that defense. Id.

at 730 (citing Black & Veatch Corp. v. Wellington Syndicate, 302 S.W.3d 114, 127 (Mo.

App. W.D. 2009)).

       On the other hand, "[a] ministerial act is defined as an act that law directs the

official to perform upon a given set of facts, independent of what the officer may think of

the propriety or impropriety of doing the act in a particular case." Jones v. Carnahan,

965 S.W.2d 209, 213 (Mo. App. W.D. 1998) (citation omitted). It can also be "of a

clerical nature" in which "a public officer is required to perform upon a given state of

facts, in a prescribed manner, in obedience to the mandate of legal authority, without

regard to his/her own judgment or opinion concerning the propriety of the act to be

performed." Richardson v. Sherwood, 337 S.W.3d 58, 63 (Mo. App. W.D. 2011) (citing

                                            8
Southers, 263 S.W.3d at 610). "Acts which are discretionary are protected, while acts

which are ministerial are not; the court must determine whether the challenged act was

discretionary or ministerial." Id. at 63 (citing Davis, 193 S.W.3d at 763).

       The general rule as to police officers and other emergency responders is that when

they are "driving in non-emergency situations, [they] do not benefit from official

immunity." Davis v. Lambert-St. Louis Int'l Airport, 193 S.W.3d 760, 763 (Mo. banc

2006). "When an officer is responding to an emergency, however, the officer exercises

judgment and discretion and is entitled to official immunity." Id. The rationale is that

the officer in an emergency situation must use discretion regarding how fast he or she can

safely drive in response to the call, the route he or she must take based on the amount of

traffic, and the location of the problem. Id. Without official immunity, an officer may be

overcautious and not act decisively. Brown v. Tate, 888 S.W.2d 413, 415 (Mo. App.

W.D. 1994). "We grant them immunity in order that they may act decisively, even

though they might afterwards, by hindsight, be adjudged to have acted negligently." Id.

(citation omitted). However, in a non-emergency situation, the operation of a vehicle

does not require a public official to exercise policymaking or the exercise of professional

expertise or judgment. Id.

       In Southers, a police officer joined a pursuit as the third police vehicle chasing a

suspect after the police department was alerted to a robbery. 263 S.W.3d at 607-08. The

third officer's action arguably violated the department's vehicular pursuit policy, which

limited police pursuits "normally . . . to no more than one primary vehicle and one

backup vehicle, unless specifically instructed otherwise. . . ." Id. at 608. In the course of

                                             9
the pursuit, the officer in the third vehicle caused an accident. The Supreme Court held

that the officer's conduct "was in the course of his official duties and involved the kind of

discretionary decisions that require professional expertise and judgment that the official

immunity doctrine is intended to protect." Id. at 619. Even though there was a violation

of the department's policy, the court held he was entitled to the shield of official

immunity.

       In Davis, a police officer responded to an "officer-in-need-of-aid" emergency call.

193 S.W.3d at 763. The court held that the officer exercised judgment in determining

which route to take based on the amount of traffic in the area and the location of the

officer in need and further that the officer exercised judgment and professional expertise

in determining the speed he could travel. Id. The court concluded that "[i]mposing

liability upon the officer in these cases might delay responses to emergency calls, thereby

adversely affecting officers or citizens in need of emergency assistance." Id.

       In McCormack v. Douglas, 328 S.W.3d 446 (Mo. App. S.D. 2010), the Southern

District of our court considered whether the official immunity doctrine applied in the

context of a volunteer firefighter. In that case, the sheriff's department and the fire

district were alerted to a car accident. Id. at 448. A dispatcher instructed a volunteer

firefighter to drive to a fire station to pick up an ambulance-type vehicle and equipment.

Id. The volunteer traveled from his residence in a vehicle equipped with activated

emergency lights and sirens. Id. On his way to the fire station, the volunteer collided

with a vehicle driven by a police officer, who died as a result of the collision. Id. An

accident reconstruction report concluded that the collision was "caused by the

                                             10
[volunteer's] failure to stop or slow his vehicle at [a] stop sign." Id. at 449. The district's

internal policy required firefighters to "come to a complete stop, establish eye contact

with drivers of other vehicles, wait two seconds, and then proceed with caution." Id.

       In an action for negligence, the McCormack court reviewed the undisputed facts

and held that the volunteer firefighter was entitled to official immunity, noting that there

was no willful wrong, bad faith, or malice just because the volunteer violated the district's

policy. The McCormack court held that, without more, any allegation of a violation of an

internal policy is an allegation of negligence, not bad faith, and that the facts of the case

"amount to nothing more than negligence during the course of [the volunteer's] duties in

the performance of discretionary acts." Id. at 451. See also Bachmann v. Welby, 860

S.W.2d 31 (Mo. App. E.D. 1993) (reversing trial court and holding that official immunity

doctrine applied where officer collided with another vehicle in responding to an all-

points-bulletin because speeding was a discretionary act).

       Applying those principles to this case, we hold that the trial court erred in entering

judgment for Rhea because Sapp sufficiently established that he was entitled to the

protection of official immunity. Although the trial court did not make written findings of

fact as to whether Sapp was responding to an emergency or whether Sapp's actions were

discretionary or ministerial, implicit in its judgment is a determination that Sapp was

responding to a non-emergency and/or that his actions were ministerial and not

discretionary. Those findings of fact are not supported by competent and substantial

evidence, and under these facts the trial court erred as a matter of law in not applying the

official immunity doctrine.

                                              11
       The parties' relevant stipulated facts, which are folded into the factual and

procedural history, supra, are these:

       1.      On May 8, 2009, Norman Sapp, the chief of the volunteer
       firefighters for Montrose, Missouri, responded to a report of a fire on a
       cattle trailer on westbound Hwy 52 halfway between Montrose and
       Deepwater, Missouri. In actuality, the trailer was less than a mile from Mr.
       Sapp's house, also located on Hwy 52.

       2.     As Mr. Sapp passed the stopped trailer eastbound at almost eighty
       miles an hour, he lost control of his truck and crashed into a minivan driven
       by Margaret Rhea. Mrs. Rhea's vehicle was parked 100 yards behind the
       stopped trailer. Mrs. Rhea was killed as a result of the collision. Mr. Sapp
       was thrown from his vehicle but survived.

       The record contains additional relevant uncontroverted facts: when Watson could

not put out the fire with his fire extinguisher, he dialed 911; Sapp had served on the

Montrose fire department since 1970 and as a deputy and a reserve deputy for the county

since 1986; Sapp was summoned by dispatch; Sapp had knowledge of Highway 52 at the

location where dispatch reported the trailer was on fire; Sapp believed the highway was

narrow at that location; Sapp believed that a vehicle on fire would potentially block the

highway; it was after 9 p.m. at night so it would be dark on the highway.

       Here, Sapp acted in the course of his duties as chief of the fire department when he

responded to the fire. Based on the circumstances known to him at the time, Sapp

exercised his discretion when he elected to speed while traveling to the fire. Just as in

Davis, where the officer exceeded the speed limit in response to an "officer-in-need-of-

aid" emergency call, Sapp exercised judgment in determining the speed he could travel in

response to a call from dispatch of a fire on a cattle trailer in the middle of the highway.

193 S.W.3d at 763. And just as in McCormack, where a volunteer firefighter elected to

                                            12
run a stop sign in performing tasks he was directed to perform in the course of responding

to a call from dispatch, Sapp exercised discretion in choosing to speed to the scene of a

fire on a loaded cattle trailer. 328 S.W.3d at 449.

       In arguing that Sapp did not establish that he was entitled to official immunity,

Rhea correctly notes that we must view the record in the light most favorable to the

judgment. In that vein, Rhea cites additional facts from the record in an effort to

establish that Sapp was not responding to an emergency and that his actions that night

were ministerial. Rhea's arguments are essentially threefold: 1) driving within the speed

limit was a ministerial activity for Sapp because the Montrose Fire Department had

explicitly dictated a policy that firefighters not exceed the speed limit when responding to

alerts; 2) non-emergency driving is not exercising professional expertise and judgment;

3) the facts do not rise to the level of an emergency, but even assuming this was an

emergency, the "unique circumstances of this incident removed the need for Sapp's

professional expertise."

       As to Rhea's first argument, the record indicates that the fire department's written

operating procedures and guidelines regarding responding to any calls, including

extreme, life-threatening emergencies, required all firefighters to obey all speed laws.

Part of the protocol also stated that if a responder exceeded the speed limit, he or she was

to engage lights and sirens. That policy is based on the fact that others may need to be

alerted that a vehicle is traveling in excess of the normal speed laws. Rhea alleges that

Sapp had no discretion to speed (almost eighty miles per hour in a fifty-five mile per hour

zone) because of the policy and therefore that his arrival to the fire was ministerial. In a

                                             13
nutshell, the argument is that the internal policy of the fire department removed any

discretion that Sapp may have had to exceed the speed limit and therefore that his driving

that evening was solely a ministerial act.

       Courts have dispensed with Rhea's arguments regarding internal policies. Most

bluntly, the Southers court held that "[p]ublic employees' conduct that is contrary to

applicable statutes or policies can constitute evidence that their conduct was negligent,

but that conduct does not remove their negligence from the protections of the official

immunity or public duty doctrines where the provisions at issue indicate no intent to

modify or supersede these common law immunity protections." 263 S.W.3d at 617

(emphasis added). Here, nothing in the departmental policy supplants the common law

immunity protections and, accordingly, the official immunity doctrine is unaffected by

allegations of policy violations. See id. As we are bound to follow the precedent from

our Supreme Court in Southers, we reject Rhea's argument that the departmental policy

removed Sapp's discretion or otherwise rendered Sapp's activity ministerial.

       Rhea additionally argues that non-emergency driving is not exercising

professional expertise and judgment.         As determined above, while this is a correct

citation to the law generally, Davis, 193 S.W.3d at 763, the uncontroverted facts of this

record indicate that Sapp was responding as fire chief to a dispatch report of a fire on a

cattle trailer on a narrow two-lane highway after dark. Additionally, Rhea's two cases

cited in support of her argument that not all responses are emergency responses do not

aid her: Thomas v. Brandt, 325 S.W.3d 481, 484 (Mo. App. E.D. 2010), and Anderson v.

Jones, 902 S.W.2d 889, 890 (Mo. App. E.D. 1995). In Thomas, the question was

                                               14
whether emergency medical personnel were facing an emergency when they had already

arrived at the scene and were working with a patient who was stable; notably, Thomas did

not involve non-emergency driving. 325 S.W.3d at 482. The Thomas court held that the

"time and information available to [emergency medical personnel] was more like that of a

doctor treating a patient in a hospital than that of an emergency responder arriving to find

a patient in critical and devolving condition" such that there was no emergency. 325

S.W.3d at 484-85. In Anderson, the court held that there was a genuine issue of material

fact as to whether there was an emergency where a witness contradicted the officer's

statement that the officer was pursuing a speeding car when he collided with another

vehicle. 902 S.W.2d at 890. In other words, the differing accounts of the officer's

actions in Thomas created a genuine issue of material fact as to whether there was an

emergency that prompted the officer's excessive speed. Id. at 892. Neither case aids

Rhea because here, as explained above, the key uncontroverted facts sufficiently establish

that Sapp was responding in his official capacity to an emergency.

       Rhea additionally argues that the facts of this case make it "evident and obvious

that until Sapp drove his truck onto the scene at eighty miles an hour there was no

apparent or imminent threat to life or property to the people and vehicles parked on" the

highway. To this end, Rhea contends that the Montrose Fire Department was called to

provide backup and support the Deepwater Fire Department, not to fight the fire; that the

speed limit was fifty-five miles per hour; that the policy mandated that responders drive

the speed limit; that this point on the highway was "open, flat, straight, and unobstructed,



                                            15
allowing anyone approaching the stopped traffic ample and adequate time to slow down";

that Sapp's response required no special skill or expertise.

         Again, none of those facts -- even viewing them in the light most favorable to the

judgment -- overcome the uncontroverted facts indicating that Sapp was responding to an

emergency.        Even if Sapp was called to provide backup and support another fire

department (and even assuming he knew this was his role), such a fact does not change

his actions from discretionary to ministerial. As noted above, the volunteer firefighter in

McCormack was instructed by dispatch to drive to a fire station to pick up equipment,

such that he, too, was providing backup and support for primary responders.                                        To

underscore the point, in that case, the firefighter's failure to follow departmental policy as

to stop signs caused a fatal wreck while he was undertaking a role in a backup or support

position. As noted above, McCormack's facts indicated "nothing more than negligence

during the course of [the volunteer's] duties in the performance of discretionary acts."

328 S.W.3d at 451.

         Nor can we accept Rhea's invitation to view "unique circumstances of this incident

[so as to remove] the need for Sapp's professional expertise." Rhea asks us to determine

that the cattle trailer fire on the highway at night was not an emergency because that point

on the highway was "open, flat, straight, and unobstructed, allowing anyone approaching

the stopped traffic ample and adequate time to slow down"6 and because Sapp's response

required no special skill or expertise. But, although the unique facts may establish


         6
           We note that dispatch reported the location of the scene to be further down the highway, which is the
location that Sapp was responding to when he came upon the actual scene of the fire.

                                                         16
negligence such that he could have and should have been driving at a safer speed, neither

the unique character of the road nor the fire chief's role as backup to another department

changes the nature of Sapp's actions from discretionary to ministerial under the current

state of the law.

       This point is granted. In this case, under these facts, our holding on this point

renders unnecessary a determination of whether the public duty doctrine applies.

                                        Conclusion

       The judgment of the trial court is reversed.




                                          __________________________________
                                          Gary D. Witt, Judge

All concur




                                            17
