Fireman’s Rule and Recovering for Injuries

Today’s burning question: I am a career firefighter and tore the MCL in my left knee on a medical call when a patient kicked me. The patient was a disabled 25-year old male with a history of traumatic brain injury. The injury will require surgery and 4-5 months to fully recuperate. My medical expenses and time off will be covered by workman’s comp, but I was wondering, does a firefighter have the ability and any chance of winning a lawsuit against the mother of the disabled patient that injured me? The patient lives with his mother and she is responsible for him. Could I sue her homeowners insurance for pain and suffering?

Answer: A firefighter’s ability to recover for injuries sustained in the line of duty is going to depend initially on your state’s interpretation of the “Fireman’s Rule”. The Fireman’s Rule prohibits injured firefighters from recovering from people whose negligence either caused the emergency that led to the fire department’s response or otherwise contributed to the injury. There are many different formulations and interpretations of the Fireman’s Rule and just as many exceptions. In addition, some states have abandoned the Fireman’s Rule and allow firefighters to sue just like any other person.

There are jurisdictions that say the Fireman’s Rule only applies to negligence that “causes the need for” the emergency response (ie. someone who negligently starts a fire) but not to someone whose negligence at the scene leads to an injury (ie. someone who negligently runs a firefighter over at the scene while the firefighter is battling a fire). Some say the Fireman’s Rule only applies to the property owner on which the fire/emergency occurs, but not to the negligence of others when that negligence causes injuries.

There are some common exceptions to the Fireman’s Rule as well, such as intentional acts (eg arson by the property owner), failure to warn of hidden danger on the property, recklessness, and gross negligence. Some states allow suits where the property owner has violated a state law, building code or fire code.

So as an initial matter, your ability to recover from the patient’s mother will turn on the Fireman’s Rule as interpreted in your jurisdiction. If your state recognizes the Fireman’s Rule and recognizes the hidden danger exception, an issue in the case may be whether the patient’s propensity to kick might be considered to be a hidden danger that she had a duty to report.

Assuming you get past the Fireman’s Rule, the next issue is whether the patient’s mother was negligent. It is possible that she was not negligent, and if not she would not be liable to you. Drilling down into the elements of negligence, probably the biggest issue will be: did she have a legal duty to warn you that the patient might kick you, and did she breach that duty. The answer to that question is likely going to turn on the decision of a judge and jury based upon the facts as they come out at trial. There is also a question of causation – whether her “carelessness” in failing to warn you was the proximate case of your injuries.

The mother may also raised the defense of “assumption of risk.” The concept of assumption of risk is actually at the heart of the reasoning for the Fireman’s Rule, but it also applies separately from it as well. The mother could argue that by responding to the emergency scene you assumed the risk of these types of injuries occurring – and that she is not responsible for your injuries. She may also claim that you (or the department) through prior runs should have been aware of her son’s issues without her having to warn you.

Lastly, you should understand that your employer, your worker’s comp insurer, and any insurance provider that compensated you for your injuries may have a right to compensation from you for any amounts you successfully recover, to reimburse them for the costs that they paid on your behalf. We call this the right of subrogation.

Here is a pretty well written article on how the harshness of the Fireman’s Rule in California, is raising some hard questions. The injured firefighter, Gabriel Terry, was not permitted to recover from the party who started the fire. He and his family have to bear the burden of his expenses.