The ‘Firefighter’s Rule’ Marches On

The Firefighter’s Rule is what some term an unfortunate relic of court decisions that date back more than 100 years. Under the Firefighter’s Rule, a firefighter or a police officer who is injured by a third party cannot sue the third party for negligence, no matter how badly the firefighter or officer is injured by the negligence. The Firefighter’s Rule began as a court-created rule applying only to firefighters, but many states have also applied it to law enforcement officers.

Courts have justified the Firefighter’s Rule using several theories, with the three most popular being that (1) the jobs of firefighters and law enforcement officers are inherently hazardous since they often enter property at unforeseen times and are forced to enter unusual parts of the premises under emergency conditions, (2) that officers and firefighters voluntarily choose their professions and thus by implication assume the risk of these hazards, and (3) that the public already compensates officers and firefighters for undertaking these expanded risks in the form of higher salaries and more readily available workers’ compensation benefits.

Whatever the justification, the Firefighter’s Rule clearly treats firefighters and law enforcement officers differently than any other category of employee, and denies them the ability to sue those whose negligence causes them injuries. That means that the risk of negligence is transferred from the negligent party to firefighters and officers and their employers (who bear the costs of workers’ compensation and pension systems).

The harshness of the Firefighter’s Rule has led several state legislatures, including that in Minnesota, to repeal it. Courts in other states, including Oregon and Colorado, have reexamined the rationales behind the Rule and have abandoned it. However, the majority of states today still retain some version of the Firefighter’s Rule.

Several 2015 cases have dealt with different aspects of the Firefighter’s Rule. The Kansas Court of Appeals continued the trend in those states still using the Firefighter’s Rule to apply it to law enforcement officers as well as firefighters, though it expressed some doubts as to the continued viability of the Rule, Apodaca v. Willmore, 349 P.3d 481 (Kan. App. 2015). The Court found that “as public safety officers, both firefighters and law enforcement officers are called upon to respond to a wide range of emergencies in their official capacities. They do so not because of any private duty owed to an individual but because of their sworn duty to the public as a whole. Moreover, like firefighters, law enforcement officers are employed at the taxpayers’ expense for the express purpose of dealing with such emergencies. It would be fundamentally unfair to allow a law enforcement officer to seek to recover damages from one who causes an automobile accident but deny this right to a firefighter injured while responding to the same accident.

“We recognize that some have questioned whether the Firefighter’s Rule still reflects a sound public policy. Nevertheless, our Supreme Court currently recognizes the Firefighter’s Rule as the public policy of the State of Kansas. Moreover, we have not been presented with – nor do we answer in this opinion – the question of whether the Firefighter’s Rule would also apply to a firefighter or law enforcement officer conducting a criminal investigation. Rather, we limit our holding to law enforcement officers who are called upon in their professional capacities to respond for public safety or community caretaking reasons such as automobile accidents caused by the negligence of the person who created the need for the presence of the officer at the scene.”

A Pennsylvania case, Juszczyszyn v. Taiwo, 113 A.3d 853 (Pa. Super. 2015), applied the Firefighter’s Rule to bar a lawsuit by a Philadelphia police officer who responded to a disturbance call regarding an unruly patron in a bar. While attempting to intervene in the disturbance, the officer encountered an intoxicated patron who was groping female patrons, drinking other people’s drinks, and being physically confrontational. The patron allegedly assaulted and injured the officer, who sued the bar owner for serving the intoxicated patron alcohol to the point of inebriation.

The Court rejected the lawsuit, finding that the officer’s employment meant that the bar owner was only required “to warn the officer of dangerous hidden conditions. The bar owner was only bound to use reasonable care to protect the officer from unknown or nonobvious dangers. The officer was responding to a disturbance call at a bar where the perpetrator was groping female patrons, drinking other people’s drinks, and being physically confrontational. Thus, when he arrived at the bar, encountering an intoxicated and physically confrontational individual was an obvious and known risk.”

A Connecticut case, Nagy v. Arsenault, 2015 WL 3685212 (Conn. Super. 2015), rejected the expansion of the Firefighter’s Rule to include privately-employed paramedics who have no firefighting duties. The case involved Daniel Nagy, an employee of American Ambulance Service, Inc. who was injured when one of the outside steps of a building gave way beneath him. Nagy sued the building owner, claiming that the steps were in a defective and highly dangerous condition, and that the building owner knew or could have discovered that condition by a reasonable inspection which he negligently ignored.

The Court’s decision focused on the building owner’s argument that the public “should [and does] compensate its safety officers both in pay that reflects the hazard of their work and in workers’ compensation benefits for injuries suffered when the risks inherent in the occupation materialize,” and that subjecting it to liability for Nagy’s injuries was double taxation. The Court found this argument curious given that Nagy worked for a private ambulance company: “Defendant’s conjuring the specter of double taxation in the instant case is factually and legally off the mark. Nagy is not a public employee, but rather an employee of a corporation that is a private domestic corporation. The double taxation argument stems from circumstances and policy considerations wholly distinct from those presented by the actual details of this case. Whatever value it provided for adoption of the Firefighter’s Fule historically is entirely absent from the instant case.”

Finally, a California case, Ferreira v. King Taco Restaurant, 2015 WL 353211 (Cal. App. 2015), applied the Firefighter’s Rule to bar a lawsuit by a Los Angeles County Deputy Sheriff who was stabbed while attempting to arrest a restaurant patron who had been pushing the deputy’s nephews while in a parking lot. The Court found that because the deputy had successfully pursued a workers’ compensation claim for his injuries and had established that his injuries were sustained in the course of his job, the Firefighter’s Rule prohibited him from arguing in a lawsuit against the restaurant that he was acting as a private citizen in his encounter with the patron.