Hot Topics # 7


There has been a lot of conversation lately about the so called "Fireman's Rule." It has been mentioned several times recently in the media and one might conclude that it is something new. Actually, it is rooted in common law and has been around for a long time. There are apparently a lot of misconceptions about what the rule is and how it impacts public safety professionals. From the sound of the term, one might think this is something from which firefighters could derive benefit. As will be seen, nothing could be further from the truth.

At the outset, some of the underlying legal terms and rationale for the "Fireman's Rule" must be explained. The rule is based upon the legal tort doctrine of "assumption of the risk," as well as the basic public policy doctrines of the state. A tort is a civil wrong, meaning someone, through a negligent action or failure to act when there was a legal duty to act, has caused harm to another or the property of another. As a result, the actor may have incurred a liability to be financially responsible to the person injured. Generally, a property owner owes a general duty to maintain the premises so as to not injure other persons who legally enter the premises.

The legal doctrine of "assumption of the risk" is a possible defense to the tort of negligence. This means generally that an injured person cannot claim damages for injury when that person has, in advance, knowingly waived his/her rights to recovery and knowingly acknowledged the danger. This is similar to the waiver one signs prior to undertaking a dangerous activity such as auto racing or sky diving.

The "Fireman's Rule" stems from this historical assumption of the risk perspective. Basically, a firefighter (or police officer, paramedic, etc.) is assumed to have voluntarily assumed any risk of injury as inherent to his/her occupation. Following the rule, a citizen who does not intentionally start a fire owes no duty of care to ensure that a firefighter summoned to suppress the fire is not injured. After voluntarily assuming such a risk, as the argument goes, the firefighter cannot then sue the person causing the risk for damages when injured. Similarly, from a public policy prospective, risks to which firefighters are exposed are believed to be inherent in the job and it would be unfair to charge all who carelessly cause or fail to prevent fires with the injury suffered by the expert public servant hired with public funds to protect them. The firefighter/police officer is paid to confront such hazards and workers' compensation benefits exist to protect him/her when an injury occurs as a result.

The "Fireman's Rule" is codified in California law under Section 1714.9 of the California Civil Code. This section, among other things, basically prohibits lawsuits by injured firefighters and their families. The rule means a party who does not intentionally start a fire, unlike the general duty owed to the public at large, owes no general duty of due care to responding firefighters. The rule sometimes imposes an injustice on firefighters because the person who creates a dangerous condition resulting in death or injury to a firefighter suffers no consequence for their misconduct.

What does all this mean? It means generally that, when a citizen accidentally causes a fire and calls 911 to summon the Fire Department to extinguish it, that citizen should not fear being sued by the firefighters who answer the call. Example: Mrs. Smith has an unattended food fire in her kitchen and calls 911. She should not be afraid to call 911 for fear of being sued by the responding firefighters. I believe this fact situation, in and of itself, is fundamentally legally sound and just. This is the idea that a public safety employee cannot recover for injuries caused by the very negligence that initially required his/her presence in an official capacity and subjected the public safety employee to harm. However, often times there are other factors which cause the situation to become unjust to firefighters.

An example of these "other factors" occurred in Stockton in 1997. Brett Laws and another Stockton firefighter were killed in a structure fire while searching for an elderly resident and attempting to suppress a fire. What they did not know was that the building owner had previously modified the building, allegedly without a permit and in violation of building codes. As a result the upstairs floor, which had been significantly modified, collapsed killing the firefighters. Hence, it can be argued that it was not the accidental electrical fire that killed the firefighters, but the improper modification of the building.

Examples of these "other factors" might include improper or illegal building code violations and improper or illegal storage of hazardous materials or flammables. These are examples where the allegedly negligent conduct of the defendant was completely unconnected and did not result in the firefighter's presence at the scene. Instead, something unrelated to the illegal construction or storage caused the fire. When an injured firefighter is limited to his/her employer-provided workers' compensation benefits, the person who originally created the dangerous condition escapes all consequences for his misconduct. The employer bears the entire economic burden for the negligent person's conduct. The firefighter is significantly limited in economic recovery by the workers' compensation system.

The basic questions then presented are:

(1) Should a property owner be allowed to escape any liability for his/her improper actions and, correspondingly, should a public employer bear the entire burden? and

(2) Should a firefighter or surviving family members be forced to accept limited workers compensation or death benefits where a dangerous condition or product has caused the death or injury?

Several states have recently overturned the "Fireman's Rule" including Minnesota, Florida, and New Jersey. Pennsylvania, Oregon and Colorado have rejected the Rule by Court decision. And, in 1989, the Wisconsin Supreme Court modified and limited the Rule by holding that the Rule only applies when the firefighter is injured as a result of the negligence of a property owner in starting or failing to curtail a fire. Otherwise, the landowner owes the same general duty of care to a firefighter that he owes to any other non-trespassing citizen. This seems to be a fair and just ruling.

The "Fireman's Rule" issue was raised recently at the 2000 CSFA Conference in San Diego. With the help of attorneys Peter Lynch and Michael Padilla, a resolution was introduced and passed directing CSFA to look into possible legislation to cure this injustice. Mr. Lynch represents the family of Brett Laws. Stay tuned for further details.

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