Can firefighters sue building owners?

Resurfacing with the news of two FDNY firefighter suing — one going after a homeowner for injuries to his shoulder incurred while responding to a residential fire — is the emotional debate as to whether or not the Firefighter’s Rule should apply to bar lawsuits.

Here’s the issue. An on-duty firefighter assumes the risk of working in conditions where the firefighter deliberately encounters certain types of hazards inherent to firefighting.

So, when the firefighter is injured in the course of an on-duty emergency response, should the firefighter be limited to worker’s compensation or should the firefighter have the ability to recover against the property owner? And if so, under what circumstances?

Evolving over 120 years, under what was initially termed “The Fireman’s Rule,” a property owner was not liable to a firefighter for injuries sustained while fighting a fire [Gibson v. Leonard, 32 N.E. 182 (Ill.1892)].

Assumed risk
The Firefighter’s Rule originated from the theory that firefighters assume the risk inherent in their job for which they are compensated with salary, disability/worker’s compensation and pension benefits. This puts the burden of their financial loss on the public rather that an individual property owner.

Therefore, under this theory, lawsuits are not the correct method for compensating firefighters for injuries incurred as a result of the negligence that created the very need for their employment [Espinoza v. Schulenburg, 129 P.3d 937 (Ariz. 2006)].

Another theory supporting the Firefighter’s Rule is that firefighters — unlike invited guests or business customers — are required by the nature of their job to enter premises at unforeseeable times and to enter into unusual parts of the premises, which may not otherwise be open to or accessible by the public.

Under this theory, firefighters are not considered in the same category as invited guests to the premises [Pearson v. Canada Contracting Co., Inc., 349 S.E.2d 106 (Va. 1986)].

Therefore, the Firefighter’s Rule generally works to prevent a firefighter who is injured in the course of employment as a firefighter from recovering against the person whose negligence or recklessness caused the fire or other hazard resulting in the emergency response.

New York law
The Firefighter’s Rule has evolved differently in different jurisdictions. Notably, in New York the legislature has effectively eliminated the Firefighter’s Rule as it pertains to third-parties and allows both police officers and firefighters to bring a lawsuit against a third party when they are injured in the lawful discharge of their official duties where the injury is caused by that third party whose neglect, willful omission, or intentional, willful or culpable conduct resulted in that injury, disease or death [N.Y. General Obligation Law § 11-106 (McKinney 2001)].

Although the New York legislature opened the door to allow lawsuits previously barred by the rule, a plaintiff firefighter still has to go through the lawsuit process. This includes the potential for dismissal if the plaintiff can’t come forward with evidence on all the elements of the claim — which includes establishing the culpable nature of the conduct and that the conduct was the cause of the injury.

In other jurisdictions, the Firefighter’s Rule has been interpreted and applied narrowly, modified to create exceptions for the ability to sue landowners who fail to keep their premises in reasonably safe condition, or modified to create exceptions for failure to warn of an existing hazard.

How do you see this debate? Should a firefighter have the ability to bring a lawsuit against the person who caused the hazard?

Could elimination of the Firefighter’s Rule adversely impact the public’s willingness to call 911? Should this rule apply to volunteer or paid on call firefighters?

What other issues do you see? Continue the discussion in the comments section.