Fire Law: The Fireman’s Rule: An Outdated Concept?

The Fireman’s Rule. By today’s standards, the name itself is considered to be politically incorrect, if not offensive. In fact, if you teach at certain national fire conferences, the term “fireman” is on a list of words you are prohibited from using!

Notwithstanding the outdated nature of the phrase, the Fireman’s Rule remains an important concept in our legal system. It refers to a defense to lawsuits filed by emergency responders, including firefighters, EMS personnel and police officers, who are injured in the line of duty. The defense is used when an emergency responder who is injured at an incident scene sues a person whose negligence:

• Caused the emergency incident,
• Created a hazard at the incident scene that contributed to their injuries, or
• Caused their injuries by something they did at the scene. 

Let’s consider examples of each in the context of a fire at Mrs. Smith’s house caused when Mrs. Smith left food cooking unattended on her stove. We will be using minor injuries as examples, but the same principles would apply if the firefighters were seriously injured or killed.

Scenario 1: Firefighter A injures his back while extinguishing the burning food at Mrs. Smith’s house. Firefighter A wants to sue Mrs. Smith because if not for her negligence in causing the fire, he would not have been injured. The legal rational for holding Mrs. Smith liable is that when someone’s negligence causes a fire, it is reasonably foreseeable that firefighters will respond and in turn that a firefighter could be injured. Thus Mrs. Smith could be held liable for Firefighter A’s injury.

Scenario 2: Firefighter B is climbing a flight of stairs in Mrs. Smith’s house when the stairs suddenly collapse, causing him to fall into the basement and injure his hip and shoulder. Acme Restoration recently rebuilt the stairs but used nails that were too short. Firefighter B wants to sue Acme Restoration for negligence in rebuilding the stairs that caused his injuries.

Scenario 3: While getting off the apparatus at a fire hydrant one block from the scene, Firefighter C is struck by Mr. Jones’ vehicle that is driving past. Firefighter C wants to sue Mr. Jones for his injuries, claiming he was negligent in the operation of his vehicle.

In its broadest sense, the Fireman’s Rule could be applied to any or all of the three scenarios to prohibit a suit by the firefighters. Many believe the Fireman’s Rule is unfair to emergency responders, depriving them of the ability to recover damages and costs from careless parties. The same rule prohibits a fire department from recouping the costs of workers’ compensation, medical bills and paid leave extended to the injured firefighters from the negligent parties.

Origins of the Fireman’s Rule

The origin of the Fireman’s Rule goes back to common law principles associated with assumption of risk and last clear chance doctrines. Under the assumption of risk doctrine, an injured party who understands the dangers and risks associated with a given activity, and freely and voluntarily chooses to engage in it, is prohibited from suing for injuries that result.

The last clear chance doctrine is a defense that arises when two parties have both been negligent, and the second party, being aware of the negligence of the first party, has the opportunity to avoid the harm and fails to do so. In the three scenarios above, the last clear chance rule would only be a possible defense if the firefighters themselves were somehow negligent in not protecting themselves from injury.

Both the assumption of risk and last clear chance doctrines are outdated concepts that have considerably less importance today as juries apportion fault among all parties involved on a percentage basis. Yet the Fireman’s Rule continues to be applied in most jurisdictions, often being rationalized based on a range of concerns, including:

• Emergency responders know the risks, voluntarily assume them, and are in the best position to prevent their own injuries;
• Citizens may be discouraged from calling for help if they think they may be subject to liability, resulting in delayed responses and an increase in civilian casualties and property damage;
• Allowing suits would place too heavy a burden on property owners to maintain their premises in a prepared and safe condition at all times in the unlikely event that emergency personnel suddenly show up;
• Emergency responders are adequately compensated through workers’ compensation, sick leave and disability programs paid for by taxpayers; and
• The cost of injuries to emergency responders should be spread among all the taxpayers in a community, not just those who have a fire or emergency.

There are state-to-state differences in how the Fireman’s Rule is applied. Some states consider the Fireman’s Rule to be an extension of property and trespass laws, and limit its application to incidents where emergency responders come upon a defendant’s property. Such states would only apply the rule to prohibit suits against Mrs. Smith, while allowing suits against Acme Restoration and Mr. Jones.

There are states that focus more on the assumption of risk aspect of the Fireman’s Rule, and apply it to all emergency scenes, including motor vehicle accidents. Such states would prohibit suits not just against Mrs. Smith, but Acme Restoration and Mr. Jones as well.

Multiple states have eliminated the Fireman’s Rule entirely, finding it to be an outdated concept that is unfair to emergency responders. Oregon abolished the Fireman’s Rule by case law, see Christensen v. Murphy, 296 Or. 610 (Or., 1982), and New Jersey abolished it by statute, see New Jersey Public Statutes 2A:62A-21.

Like most principles in the law, there are a number of exceptions to the Fireman’s Rule that permit injured responders to sue even in states where the rule still applies. These exceptions are state-specific and include:

• The person’s conduct was willful, wanton, or intentional. Example: If Mr. Jones intentionally ran over Firefighter C, most states would allow Firefighter C to recover.
• The injury was the result of a hidden trap. Example: If Mrs. Smith had purposefully booby-trapped the stairs to collapse, hoping to catch an unsuspecting burglar, but the collapse accidentally injured Firefighter B, most states would allow Firefighter B to recover damages from Mrs. Smith.
• The injury was the result of a violation of law enacted to protect firefighters, police officers, EMS personnel or the public. Example: If Acme Restoration violated a building code when making repairs to the stairs, Firefighter B could sue in such a state.
• The owner/occupier was aware of a hidden danger on the property, and failed to warn the firefighters of its presence. Example: If Mrs. Smith was on scene at the time of the fire, was aware of a dangerous defect in the stairs, and failed to warn Firefighter B, Firefighter B could recover damages from her.
• The negligence occurs at the scene once responders are present. Jurisdictions recognizing this exception would prohibit suits against Mrs. Smith and Acme Restoration since their negligence occurred prior to the response, but allow suits against Mr. Jones.
• The rescuer was off-duty, stopped voluntarily at an incident scene to offer assistance, and was injured by another driver. 

In sum

As its name suggests, the Fireman’s Rule is considered by many to be an outdated concept. A number of states have abandoned the rule finding it to be unfair to firefighters, police officers and emergency medical personnel who are injured in the line of duty. However, most states continue to recognize the rule, moderating its unfairness by applying a variety of exceptions that permit suits by emergency responders under certain circumstances.