Defense Digest

The Firefighters' Rule Is Nothing But Ashes

The firefighters' rule is a common law doctrine that bars a first responder from suing a property owner for injuries sustained while responding to an emergency that brings him/her to the property. In Ruiz v. Mero, __ N.J. __, decided March 13, 2007, the New Jersey Supreme Court put to rest forever the question of whether or not the rule is alive and well in the Garden State. Justice Virginia Long, writing for the unanimous Court, held that a first responder can recover damages from a culpable party for injuries sustained while confronting an emergency created by the party. The Court recounted not only the facts in Ruiz but also the historical roots of the rule and why it no longer had any vitality.

Harry Ruiz was a uniformed policeman who, while on duty, was dispatched to an altercation at the defendants' bar. Upon arriving outside the bar, Ruiz came upon a group of people involved in an argument. One or more of these people attacked Ruiz, causing him injuries for which he sued the defendants.

The defendants' motion to dismiss the complaint for failure to state a cause of action was granted despite the plaintiff's objection that the rule had been eliminated by the 1993 passage of N.J.S.A. 2A:62A-21. On appeal, the trial court's decision was reversed. The defendants' petition to the New Jersey Supreme Court was granted solely to decide the extent the rule had been abrogated by the statute.

The Court's analysis began with a historical review of the genesis of the rule. Deeply rooted in the common law is the rescue doctrine, which provides a source of recovery for one who is injured while engaged in the rescue of another who has negligently created the peril. As Judge, later United States Supreme Court Justice, Cardozo wrote in Wagner v. Int'l Ry., 133 N.E. 437, (N.Y. 1921), "[t]he wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer."

However, over time, the rule developed as an exception to the rescue doctrine. In its most basic form, the rule operates to prevent a firefighter from recovering in tort from a property owner or tenant who has been negligent in starting or failing to curtail a fire. Originally, the rule was premised on the theory that the firefighter's presence on the property, although not invited, was permitted. This basis evolved into an assumption of risk theory and ultimately a public policy argument that it was unjust to allow firefighters and police to recover damages for injuries sustained when facing the very dangers for which they had been hired.

In 1960, New Jersey adopted the rule in Krauth v. Geller, 31 N.J. 270 (1960), premised on the public policy doctrine. However, Krauth left open one exception to the rule, declaring that it was appropriate for liability to be imposed for "negligence with respect to conditions creating undue risks of injury beyond those inevitably involved in fire fighting." This rule was later extended to include police and volunteer firefighters.

In 1991, the Court revisited the rule in the case of Rosa v. Dunkin Donuts, 122 N.J. 66 (1991) and eliminated the sole Krauth exception. However, the Rosa decision was not unanimous. Justice Alan Handler dissented, holding that firefighters and police should be able to recover for injuries caused by the negligence of others.

In Ruiz, the Court noted that Justice Handler's criticism was not a lone voice in the wilderness, that the legal bases for the rule no longer comported with modern concepts of tort law and that New Jersey had adopted a statute to address the rule.

In 1993, the New Jersey Legislature enacted N.J.S.A. 2A:62A-21, which provides that a law enforcement officer, firefighter, or volunteer member of a duly incorporated first aid, emergency, ambulance or rescue squad who suffers injury directly or indirectly as the result of the neglect, willful omission, or willful or culpable conduct of a person or entity, may sue the person or entity for damages. At first blush, it would appear this statute eliminated the rule. However, in Ruiz the question was whether this statute completely abrogated the rule or if the statute merely returned the rule to its status under Krauth.

In holding that the statute eliminated any vestige of the rule, the Court declared the statute clear and unambiguous: it provided a broad right of action by a first responder who is injured on premises to which he/she has been called. The statute provided a right of action regardless of the conduct of the culpable party and whether the injury was caused directly or indirectly by the responsible party. In rejecting the defendants' position to the contrary, the Court considered the legislative history and the recognition that the statute was a response to the holding in Rosa, which included Justice Handler's dissent.

The rescue doctrine has returned. Ruiz stands for the proposition championed by Justice Handler in Rosa: a fundamental principle of jurisprudence should be that firefighters and police enjoy the same right of redress as the general public for injuries sustained due to the wrongdoing of others. The firefighters' rule is nothing more now than ashes remaining from something that once was.

*Bruce is an associate in our Roseland, New Jersey, office. He can be contacted at (973) 618-4173 or baseidman@mdwcg.com.