Firefighting, rescue, and fire investigation are extremely dangerous, critical operations. Firefighters are faced with risks every time they respond to an incident. However, should a firefighter or surviving family members be forced to accept workers’ compensation or death benefits if a dangerous product causes death or injury? This article discusses the “Fireman’s Rule” and calls for limiting its application.
WHAT IS THE FIREMAN’S RULE?
Following the Fireman’s Rule, a person who does not intentionally start a fire owes no duty of care to ensure that the firefighter summoned to combat the fire is not injured. The Fireman’s Rule is an application of the legal doctrine of “assumption of the risk.” When that rule applies, it operates to exonerate a defendant from the duty of care that would have otherwise been owed to an injured or killed firefighter. Legislators and courts developed the rule stating it is unfair to permit a firefighter to sue for injuries caused by the negligence that has made his employment necessary.
Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 536. Proponents of the rule argue it is the fireman’s business to deal with that very hazard, the fire, and he cannot complain of negligence in the creation of the very occasion of his engagement.
- Catayud v. State of California (1998)18 Cal.4th 1057, 1062. Allowing suits would involve litigation with the employer, retirement system, and defendant’s insurer.
- Lastly, workers’ compensation spreads the costs of injuries to the public at large, similar to self-insurance. Supporters claim workers’ compensation benefits should suffice for work-related injuries. Hence, a firefighter cannot sue individuals or companies injuring them during the line of duty under the Fireman’s Rule.
HOW SERIOUS IS THE PROBLEM?
In 1998, 91 firefighters died while on duty.1 In 1997, the total number of firefighter fireground injuries was 43,080, according to the National Fire Protection Association (NFPA) Survey of Fire Departments for U.S. Fire Experience (1998). Total injuries to all firefighters in the line of duty were 87,500. Fireground injuries include all firefighter activities on the fireground from the time of their arrival to the time of their departure, including setup, extinguishment, and overhaul. These statistics reveal a serious problem.
One example discussing the potential harsh consequences of the Fireman’s Rule noted by the NFPA survey was a firefighter injured by an electrical shock. Firefighters were called to an industrial shop to fight a fire over a machine exhaust duct. An uninsulated wire attached to the ceiling kept the duct in place. A second wire attached was used as a radio antenna. This wire became energized when the insulation failed on the wire supplying the exhaust fan motor, injuring the unsuspecting firefighter.
Does a strict Fireman’s Rule serve the ends of justice? When a firefighter is limited to workers’ compensation or death benefits, the party who created the dangerous condition suffers no consequence for the misconduct. The Fireman’s Rule does not further taking responsibility for one’s own actions. Nor does it encourage property owners or manufacturers to ensure that safety is a paramount concern. The Fireman’s Rule can be viewed as allowing parties who injure firefighters to escape responsibility for their misdeeds.
RECENT CASES ON THE FIREMAN’S RULE
In Stapper v. GMI Holdings, Inc. (1999) 73 Cal.App.4th 787, several fire crews responded to a house fire. Three firefighters entered the house through the garage, which did not contain smoke or flames. They extended a two-inch hoseline into the garage through the open garage door and charged the line. They opened the interior door to the house and put water on the fire. They advanced into the house. Heat and smoke forced the firefighters back into the garage. However, the garage door had come down and would not open. The owners had closed the garage door using a remote-control device.
A rescue was attempted. One firefighter died; another was blinded and sustained brain damage. The garage door opener was defective, according to the plaintiff. Specifically, the automatic reopener did not work, trapping the firefighters inside. The trial judge dismissed the case without sending it to the jury. He entered judgment for the defendant garage door manufacturer.
The case was appealed. The First District, Division Five of the California Court of Appeals reviewed the history of the Fireman’s Rule. It outlined the harsh consequences by literal application of the rule to the brain-damaged firefighter. The Court of Appeals reversed the trial judge. It allowed the suit because the garage door’s malfunction was independent of the fire and not caused by the fire.
The Court noted one policy basis for the Fireman’s Rule is “fairness.” Here, the firefighter sought damage for acts allegedly occurring independently of the fire. The garage door manufacturer’s negligence did not make the firefighter’s employment necessary, nor did it bring the firefighter to the home. The Court of Appeals noted that while it may be reasonable for the public to insure itself from tort suits, it was not reasonable for the public to insure a public manufacturer.
In Harris-Fields v. Syze (1999) 461 Mich 188, 600 N.W.2d 611, the Michigan Supreme Court had to grapple with the Fireman’s Rule related to a Michigan state police trooper killed while standing on the shoulder of a highway near the driver’s door of a car he had stopped for a traffic violation.
The plaintiff’s personal representative brought a wrongful death action alleging that the defendant had been negligent in the operation of her car, causing the death. The defendant moved for summary judgment, asserting the action was barred by the Fireman’s Rule. The trial court agreed and granted the motion. The Court of Appeals, after granting rehearing, affirmed the summary judgment for the defendant. The case was then heard by the Michigan Supreme Court.
The Court noted the rule is deeply rooted in the common law and courts have overwhelmingly been in favor of applying it. The Fireman’s Rule, according to the Court, is based on practicability and common sense. While the rule may have different permutations among the states, its basic formulation is that a firefighter or police officer may not recover damages from a private party for negligence in the creation of the reason for the safety officer’s presence. [Kreski v. Modern Wholesale Electric Supply Co. (1987) 429 Mich. 347, 415 N.W.2d 178.]
The Michigan Supreme Court noted where an officer’s injury results from the subsequent negligence of the defendant after arrival at the scene, the rule does not necessarily bar recovery, citing Garcia v. South Tucson (Ariz.App. 1981) 131 Ariz. 315, 640 P.2d 1117. The Michigan Supreme Court carved out an exception to the Fireman’s Rule stating “we . . . hold that where the allegedly negligent conduct of the defendant did not result in the officer’s presence at the scene of the injury, the Fireman’s Rule does not apply.” The Michigan Supreme Court reversed the Court of Appeals and the trial court.
Some other jurisdictions’ recent discussions of the Fireman’s Rule include the following:
Crews v. Hollenbach (1999) 126 Md. App. 609, 730 A.2d 742 (discusses Fireman’s Rule favorably related to assumption of the risk doctrine).
Campus Management, Inc. v. Kimball (1999) 991 S.W.2d 2d 948 (Texas court applied Fireman’s Rule and precluded recovery by injured firefighter).
- Meyer v. Moreno (1999) 685 N.Y.S.2d 218 (New York court allowed case to go forward to determine the effect of a building code violation on the application of the Fireman’s Rule).
Bally v. Pora (1999) 303 Ill.App.3d 239, 706 N.E.2d 1038 (Illinois court applied the Fireman’s Rule to bar the claim of a firefighter injured when a chimney fell through the roof and injured him on interior stairway).
- Gaither v. Metropolitan Atlanta Rapid Transit Authority (1998) 235 Ga.App. 603, 510 S.E.2d 342 (Georgia court held that a police officer injured was not barred by the Fireman’s Rule because he was struck by a bus while asking a car to move).
Bell v. Whitten 722 So.2d 1057 (La.App.1 Cir. 11/6/98) (Louisiana court applied the rule to a deputy sheriff injured by an intoxicated minor).
- Syracuse Rural Fire Dist. v. Pletan (1998) 254 Neb. 393, 577 N.W.2d 527 (Nebraska court applied the Fireman’s Rule and barred recovery for claims by the fire district).
- Orth v. Cole (1998) 191 Ariz. 291, 955 P.2d 47 (Arizona court allowed a suit by a firefighter injured during an electrical panel inspection, finding the rule not applicable to routine inspections).
- Thompson v. FMC Corp. (1997) 710 So.2d 1270 (Ala.Civ.App. 1997) (Alabama court discussed the Fireman’s Rule favorably in relation to a firefighter’s toxic chemical inhalation claim).
Firefighter and investigator jobs are inherently dangerous. They should not be limited to workers’ compensation or death benefits when injuries are caused by a defective product or an inherently dangerous condition unrelated to the reason for which they were called to the fire scene. Rational people should agree that workers’ compensation/death benefits do not adequately compensate for the injuries sustained. Making families of firefighters killed in the line of duty suffer economically while facing the loss of a loved one is not humane. This is especially true when culpable parties go free. The Fireman’s Rule does not ensure accountability for one’s dangerous acts. We need to hold reckless actors responsible to protect all firefighters from serious injury. It is time to curtail the strict application of the Fireman’s Rule to ensure that fundamental fairness exists for injured firefighters and their families. Altering the rule will promote public safety while ensuring that responsible parties pay for the harm they caused.
1. See “Firefighter Fatalities in the United States,” United States Fire Administration, FEMA (August 1999) available at http:\usfa.fema.gov/pdf/ff_fat98.pdf.
PETER A. LYNCH is a senior member of the national law firm of Cozen and O’Connor, P.C., in its San Diego regional office. The major emphasis of his practice is the representation of individuals, companies, and insurers that arise from fire losses to include personal injury, subrogation, coverage, and defense matters. He has written and published more than 20 articles, has lectured extensively on fire litigation topics, and has been retained as an expert witness. He is the legal advisor to the San Diego County-Wide Fire and Arson Task Force.
- Campus Management, Inc. v. Kimball (1999) 991 S.W.2d 2d 948 (Texas court applied Fireman’s Rule and precluded recovery by injured firefighter).