Firefighters and Police Can Recover Against Premise Owners for Injuries! Abolition of the Firefighter’s Rule
written by Adam Rothenberg & Gregg Williams
In a recent decision decided on March 13, 2007, the Court ended a long standing debate among lower courts regarding the application of what had traditionally been known as the “Firefighters’ rule”. In Ruiz v. Mero, a unanimous Court held that N.J.S.A. 2A:62A-21 (1994) proffers clear legislative intent to abolish the firefighters’ rule, thereby allowing a rescue worker to recover under traditional tort principles for injuries resulting from the negligence or willful conduct of any person or entity, other than an employer or co-employee. Prior to this decision , the rule had previously barred rescue workers, including firefighters, police officers and emergency medical personnel from recovering from a negligent third-party landowner on whose premise they suffered an injury or occupational disease, and they were therefore limited to worker’s compensation benefits to redress their injuries; the Ruiz decision ends that limitation. This is a significant change in their rights that is now recognized in New Jersey.
Historically, the firefighters’ rule developed as an exception to the traditional common law rescue doctrine that an individual injured attempting to redress a peril created by the negligence of someone else could recover from the negligent party. During the twentieth century, a majority of jurisdictions adopted some form of the firefighters’ rule. The rationale for the doctrine primarily stemmed from assumption of risk and public policy principles. That is, it was viewed as unjust to allow rescue workers to recover for the very risks inherent in their job in which they were hired to address and for which they received hazard pay. Cases such as the 1960 case of Krauth v. Geller, 31 N.J. 270 (1960) helped limit the rights of rescuers such as firefighters and policemen. Subsequently, these rights were even further curtailed, in Rosa v. Dunkin’ Donuts, 122 N.J. 66 (1991) when the Court limited an injured responders right to recovery by eliminating the proviso allowing recovery for the negligence of a landowner unrelated to the situation giving rise to the responder’s presence.
Fortunately, in 1994, the legislature promulgated N.J.S.A. 2A:62A-21 using unambiguous language clearly intended to eliminate the firefighters’ rule. The act covers the gamut of potential responders, encompassing law enforcement officers, fire fighters, first aid, emergency and rescue squad associations. The statute provides that when such individuals are injured while in the lawful discharge of their duties “directly or indirectly the result of the neglect, willful omission, or willful or culpable conduct of any person or entity…other than their employer or co-employee”, the responder has a right to recover from the negligent party. Despite the Legislative change, the State Courts continued to rule that the firefighters’ rule would still bar recovery in many circumstances.
The debate over the firefighters’ rule waged on until the Supreme Court’s decision in Ruiz. With New Jersey’s official abolition of the doctrine, it has followed several other states that have abandoned or extremely limited the scope of the rule. See Minn. Stat. § 604.06 (1984) eliminating the firefighters’ rule in Minnesota and finding that emergency responders hold an invitee status; N.Y. Gen. Mun. Law § 11-106 (McKinney 1996) declaring that police officers and firefighters are entitled to recover for a landowner’s negligence when in the lawful discharge of their duties in New York; Willis v. Bath Excavating, 829 P.2d. 405, 409 (Co. App. Div. 1991) Colorado has abolished the firefighters’ rule; and Christensen v. Murphy, 678 P.2d. 1210, 1218 (1984) setting forth the abolition of the firefighters’ doctrine in Oregon. These jurisdictions used similar rationales in reaching their conclusions. The assumption of risk justification for the doctrine was generally rejected, in that acceptance of employment should not be considered assumption of another’s negligence. See Banyai v. Arruda, 799 P.2d. 441, 443 (Co. App. Div. 1990). Also, these courts found the doctrine antiquated because under modern tort law an emergency responder should be considered an invitee, lawfully entering the premise to provide a benefit to the landowner. See Willis, 829 P.2d. at 410; and Christensen, 678 P.2d. 1210 at 1215 (1984).
These rationales formed the backdrop for the New Jersey Supreme Court’s decision in Ruiz. This, coupled with basic guidelines of statutory interpretation applied to N.J.S.A. 2A:62A-21 (1993), led the Court to the wholesale conclusion that the Firefighters’ rule should be abolished in all respects.
The implication of this change is that if a Fireman or Policeman is hurt in the course of their employment, then there is a potential recovery beyond worker’s compensation. If the hazard or hazardous circumstance was negligently created requiring “rescue”, then a firefighter or policeman who is hurt in the process of performing the official duties has a right to make a claim for those injuries.
For example, if there were a fire which was started by the negligence of the land owner in negligent maintenance of the electric system or carelessly disposing of cinders, then a fireman hurt in fighting that fire could make a claim against the landowner. Another example would be if a police officer tripped over a negligently created or maintained defect, like a torn carpet, while investigating a case, then they could pursue a claim for those injuries. In both situations prior to the Ruiz decision, they could not have made a claim. This is why this decision is so important to their rights to redress for injuries.
An effect of the decision is an end to cases like Kelly v. Ely, 336 N.J. Super. 354 (App. Div. 2001), in which the Appellate Division held that the statute allows a responder to recover for negligence incidental or unrelated to the condition causing his presence on the premises, and that the immunity only exists for the condition initiating the response. In Kelly, the plaintiff, a firefighter was injured when he tripped over a curb while responding to a fire started by the defendant-homeowner. The plaintiff alleged that the homeowner was negligent in attempting to light an outdoor grill without conducting an inspection and therefore should be liable for the responder’s injuries. The court held that the firefighters’ rule immunized the landowner when his only negligence was related to the creation of the fire itself. Under Ruiz, it is likely that the firefighter could recover because the reason for his presence and his injury was the negligence.
The Ruiz decision is a powerful decision that properly follows the Legislative intent of N.J.S.A. 2A:62A-21 and ensures that rescuers acting in an official capacity have the same rights as all other citizens. A fireman, policeman or other rescuer who is injured on the job because of the negligence of another, either in creating the hazard or in negligently creating the need for “rescue”, now has a right to recover for those injuries and damages. This decision protects those who protect us.
