Divided Kansas Court Extends ‘Firefighter’s Rule’ To Police

A little-known legal principle that rarely fails to surprise firefighters and law enforcement officers is known as the “firefighter’s rule.” Under the rule, firefighters (and increasingly law enforcement officers) are barred from suing third parties whose negligence has caused them injuries on the job.

The firefighter’s rule started 125 years ago with an Illinois court decision. It spread around the country, but stalled in the 1980s when several state courts and a handful of state legislatures rejected it. However, the firefighter’s rule still exists today in a majority of states.

A case involving Riley County Police Officer Juan Apodaca faced the Kansas Supreme Court with the question of whether the firefighter’s rule – which it had long ago adopted – should be extended to law enforcement officers.

On October 18, 2009, Apodaca responded to a single-truck accident on a four-lane highway. The young truck driver, who was drunk, exited the truck without activating his headlights or flashers. Believing someone was injured in the accident, Apodaca drove at a high rate of speed to the accident site, with his emergency lights and sirens activated.

Apodaca saw the headlights and flashers from a bystander’s vehicle – that was parked on the center-edge of the northbound lanes – from over a mile away, and he believed it was the scene of the accident. Apodaca did not see the disabled pickup in the southbound lanes and struck it while travelling 104 mph.

Apodaca and his partner were seriously injured, and filed a lawsuit against the drunk driver and his father, who owned the pickup truck. Apodaca’s main argument was that the driver was negligent by not activating his lights and flashers after the initial accident.

In dismissing Apodaca’s claims, the Court began by reciting its formulation of the firefighter’s rule: “Firefighters enter on the premises to discharge their duties. Firefighters are present upon the premises, not because of any private duty owed the occupant, but because of the duty owed to the public as a whole. In populous areas firefighters are first concerned with keeping a fire confined and preventing it from spreading to other structures, and then with the preservation of the burning property. It is a public policy of the State of Kansas that a firefighter cannot recover for injuries caused by the very wrong that initially required his presence in an official capacity and subjected the firefighter to harm; that public policy precludes recovery against an individual whose negligence created a need for the presence of the firefighter at the scene in his professional capacity.”

Turning to Apodaca’s case, the Court held that the firefighter’s rule should be extended to law enforcement officers. The Court held that “Apodaca’s efforts to distinguish firefighters and law enforcement officers ignore the many instances in which their duties overlap or are similar. The circumstances of this case are illustrative. Both police officers and firefighters often respond to traffic accidents. Although he is correct that police officers generally do not fight fires, their general duty is the same as a firefighter’s – to neutralize hazards and provide for the safety of the public. We are convinced that extension of the limited firefighter’s rule of Calvert to law enforcement officers is the wisest course for Kansas, and we so hold. Not only is extension of the rule consistent with the common law and statutory law developed in the clear majority of our sister jurisdictions, it is also consistent with the public policy rationale that prompted this court to adopt the firefighter’s rule in the first place.”

Apodaca argued that even if the firefighter’s rule applied to police, his claim fell within a well-recognized exception to the rule – one which allows lawsuits if the defendant fails to warn the firefighter or officer of “known, hidden danger.” Apodaca contended that because the truck driver turned off the truck’s headlights and taillights and did not turn on its emergency flashers, it was not possible for him to see the pickup in the dark; thus the disabled truck was a known, hidden danger.

The Court disagreed, ruling that “on the facts of this case, Apodaca had been warned about the position of the pickup. Although the driver himself may not have warned Apodaca directly of the danger – the information may have been transmitted through the person who stopped at the scene to assist the driver and the 911 operator or dispatcher – Apodaca was fully informed. The public policy underlying the exception seeks to ensure that the existence of a danger is communicated to a first responder. That policy goal was met by the description of the accident scene Apodaca received in this case.

“Furthermore, we note that the particular danger in this case, a truck blocking the road, was of the type a law enforcement officer responding to the scene of an accident should be able to anticipate, in a way that an ordinary citizen might not. This fact reinforces our decision that the hidden danger exception does not apply to allow Apodaca’s claims against the defendants to proceed.”

The Court’s opinion brought three vigorous dissenting opinions from other justices. As one justice put it, “I dissent from the majority’s unjustified expansion of the singularly arbitrary, capricious, and constitutionally suspect firefighter’s rule.”

Apodaca v. Willmore, 392 P.3d 529 (Kan. 2017).