The ‘Firefighter’s Rule’ Lives And Breathes, At Least In Some States

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This article appears in the July issue of our monthly newsletter, Public Safety Labor News.

Little known in most quarters, the “firefighter’s rule” prevents firefighters and police officers from bringing many kinds of negligence lawsuits against those who injure them on the job. Under the firefighter’s rule, a member of the public whose conduct causes the intervention of a public safety officer is not liable to the officer for the negligence that caused the officer’s intervention.

There are four commonly-advanced justifications for the firefighter’s rule: (1) Public safety employees should not be permitted to sue based on the very negligence they are employed to confront; (2) public safety employees already are adequately compensated with special salary, retirement and disability benefits for undertaking their hazardous work; (3) the public pays taxes to secure the services of public safety employees and should not have to pay twice through taxation and individual liability for that service; and (4) ending the firefighter’s rule would embroil the courts in disputes between the employer, the retirement system and the defendant’s insurer.

Several states have abolished the firefighter’s rule, either through legislative action or court decision. In other states, though, the firefighter’s rule is still vigorous, and routinely blocks lawsuits by firefighters and police officers who are injured due to the negligence of others.

An example of the firefighter’s rule in action involved a lawsuit brought by Douglas Sullivan, a Fresno County, California deputy sheriff. Sullivan was injured when a K-9 police dog for the City of Huron Police Department attacked and injured him when Sullivan was on a dog track with a City K-9 police officer. Sullivan sued the City, contending that the City negligently maintained and released a dangerous dog.

The California Court of Appeals concluded that the firefighter’s rule barred Sullivan’s claims. The Court concluded that “Sullivan’s complaint alleged a situation that fell squarely within the firefighter’s rule. Responding to a burglar alarm and searching the building for a suspect is classic hazardous law enforcement activity, regardless of the amount of time since the alarm was triggered or the officers were at the scene. The search of a burglarized building brings with it risks of harm, such as the presence of burglars, who may be armed and hiding. Officers use police dogs, with their superior sense of smell, speed and agility, to detect and flush out hiding suspects, thereby reducing the risk of harm to the officers. That the dog may attack a fellow officer at the scene is a risk inherent in the activity of searching the building. As a matter of law, the alleged situation demanded law enforcement intervention, thereby bringing it within the firefighter’s rule.

“Imposing a duty of care to avoid injury to fellow officers creates the potential for conflicting duties, particularly when responding to a rapidly developing emergency or crisis. Joint operations by peace officers are to be encouraged. Public safety would be compromised if the threat of a lawsuit accompanied every failure to exercise due care in making an arrest, quelling a disturbance, extinguishing a fire, or handling any of the other functions public safety members routinely discharge.

“The cost-spreading rationale is one of the critical public policy reasons underlying the firefighter’s rule. The public pays the bill, whether the firefighter is compensated by public benefits derived from taxation or from purchased insurance proceeds. Applying the firefighter’s rule relieves public agencies of the burden of lawsuits over rights of subrogation that are pointless because the public fisc pays, regardless of the outcome.”

Sullivan v. City of Huron, 2012 WL 1036032 (Cal. App. 5 Dist. 2012).

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