The Firefighter’s Rule remains a source of confusion

Firefighters arrive at the scene of a crash and begin to render aid. A short while later, a passing driver collides with the firetruck, injuring some of the firefighters. If you're like most people, you harken back to your first year torts class and conclude that the firefighter's rule bars these firefighters' injury claims. Your conclusion would be understandable, but incorrect. The firefighter's rule continues to confuse courts and lawyers alike.

Civil Code 1714.9

California Civil Code section 1714.9 codifies the firefighter's rule. It reads:

"Notwithstanding statutory or decisional law to the contrary, any person is responsible not only for the results of that person's willful acts causing injury to a peace officer, firefighter, or any emergency medical personnel employed by a public entity, but also for any injury occasioned to that person by the want of ordinary care or skill in the management of the person's property or person in any of the following situations:

(1) Where the conduct causing the injury occurs after the person knows or should have known of the presence of the peace officer, firefighter, or emergency medical personnel.

This exception to the firefighter's rule has resulted in many published decisions, including the recent case of Rattary v. Favro. Some more background is appropriate.

Neighbarger v. Irwin Industries

The California Supreme Court provided a detailed analysis of the firefighter's rule in Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532. The plaintiff was a safety supervisor for a private petroleum company. An employee of Irwin Industries, the company responsible for maintaining the facilities, used the wrong tool to repair a gas leak, which in turn caused an explosion that injured the plaintiff. Neighbarger sued for his injuries. Irwin Industries defended on the grounds that the firefighter's rule barred Neighbarger's claims.

The Court provided a detailed analysis of the firefighter's rule. The theoretical underpinning of the rule is the assumption of the risk doctrine. It is the firefighter's business to deal with the hazards of firefighting, and firefighters receive special compensation to confront these hazards. Nevertheless, firefighters do not assume every risk of their occupation. The firefighter's rule bars claims brought by firefighters compensated by the public. The rule does not, however, bar a private safety employee's claims.

Donohue v. San Francisco Housing Authority

What happens when a firefighter or police officer are called to the scene for one reason, and then get injured by an unrelated factor? This is what happened in Donohue v. San Francisco Housing Authority (1993) 16 Cal. App.4th 658. In Donahue, a fire chief visited a property for a random fire code safety inspection. Mr. Donahue walked up a flight of stairs to ensure an attic door was unlocked. The stairs were wet, and he slipped and broke his arm. He sued the building owner for negligence, and the trial court granted summary judgment based on the firefighter's rule.

The Court of Appeals reversed. A firefighter injured while in the regular course of his duties is not the only dispositive factor in firefighter injury cases. Donahue was summoned to the scene to inspect for fire code violations, not to inspect the slipperiness of the stairs. In other words, the slippery stairs were an independent cause of Donahue's injuries. His recovery was therefore not barred by the firefighter's rule.

Rattary v. Favro

Rattary v. Favro, decided last month, involves the scenario described above. A group of firefighters arrived at the scene of car crash A and blocked a lane of traffic. Driver B crashed into their firetruck, and when the firefighters tried helping him, they got hit by Driver C. They sued Driver B, arguing that his negligence placed them at risk of being hit by Driver C. The trial court dismissed the case under the firefighter's rule. In an earlier unpublished opinion, the Court of Appeals reversed, saying whether Driver B knew or should have known that the firefighters were on the scene was a triable issue of fact.

The case proceeded to trial, and during closing arguments, defense counsel argued that Driver B did not increase the risks to the firefighters. The jury agreed, and found for Driver B. The Court of Appeals held that counsel's argument impermissibly raised the burden of proof beyond the requirements of Section 1714.9. The statute does not afford immunity as long as one does not increase the risks to firefighters or police officers who arrive at the scene of an emergency. Rather, if someone knows or has reason to know that a police officer or firefighter are at the scene, the ordinary duty of care applies.

Conclusion

Many people remember the firefighter's rule from law school, and mistakenly think that if a police officer or a firefighter are injured on the job, the rule bars their torts lawsuit. This is not so. The rule is full of exceptions. If an emergency service worker is injured by an unrelated factor after arriving on the scene, the rule does not apply. It also does not apply when a firefighter is injured after arriving on the scene by someone who knew or should have known he was present. You're not alone if you're perplexed. As the cases above demonstrate, courts frequently misapply the law when it comes to firefighter or police officer injuries. The discussion here can be a starting point for practitioners beginning their research and trying to wrap their head around the firefighter's rule and its confusing exceptions.