Utah Supreme Court Creates Exception to Professional Rescuer Rule

In a landmark decision the Supreme Court of Utah has ruled that a firefighter injured at an emergency scene can recover from a property owner despite the professional rescuer rule when the injury results from gross negligence or intentional conduct. The 3-2 ruling handed down last week will allow a suit filed by South Salt Lake firefighter David Scott Ipsen to proceed.

Ipsen suffered career-ending lung injuries at a mulch fire at Diamond Tree Experts, Inc. on July 10, 2014. Ten days prior to the fire, Diamond Tree was cited by the county over the size of the mulch pile. In the week before the fire, there were at least two other fires.

As explained by the Utah Supreme Court:

  • Ipsen sued Diamond Tree in district court for gross negligence, intentional harm, and negligent infliction of emotional distress.
  • Diamond Tree moved for summary judgment, claiming that it owed no duty to Ipsen under Utah’s professional rescuer rule, which says that “a person does not owe a duty of care to a professional rescuer for injury that was sustained by the very negligence that occasioned the rescuer’s presence and that was within the scope of hazards inherent in the rescuer’s duties.”
  • The district court agreed with Diamond Tree and dismissed Ipsen’s claim for three main reasons.
  • First, it held that under Fordham, Diamond Tree owed Ipsen no duty of care, even if Diamond Tree’s underlying conduct was egregious carelessness or violated ordinances.
  • Second, the district court found that all the injuries that Ipsen alleged were inherent in firefighting.
  • Third, the district court held that although Fordham does not immunize intentional behavior from liability, Ipsen had not established a genuine dispute of fact about an intentional behavior on Diamond Tree’s part.

The professional rescuer rule, commonly referred to by its historical politically-incorrect name, the Fireman’s Rule, stands as a bar to many suits brought by injured emergency responders. The court explained the Utah version of the rule as follows:

  • “a person does not owe a duty of care to a professional rescuer for injury that was sustained by the very negligence that occasioned the rescuer’s presence and that was within the scope of hazards inherent in the rescuer’s duties.”

However, a number of exceptions to the rule are commonly recognized and many states have eliminated the rule entirely. As explained in the decision:

  • In Fordham v. Oldroyd, we announced the professional rescuer rule.
  • Under that rule, “a person does not owe a duty of care to a professional rescuer for injury that was sustained by the very negligence that occasioned the rescuer’s presence and that was within the scope of hazards inherent in the rescuer’s duties.”
  • Ipsen asks us to limit this rule so that professional rescuers can recover in tort for injuries stemming from gross negligence, intentional torts, and the violation of statutes and ordinances.
  • Based on public policy, we hold that the Fordham’s professional rescuer rule does not apply in cases of gross negligence and intentional torts.
  • A person thus does owe a duty of care to a professional rescuer for injuries sustained by gross negligence or an intentional tort causing the rescuer’s presence.
  • Our holding is based on the vast difference in culpability and the considerably greater deterrence considerations gross negligence and intentional torts present compared to ordinary negligence.

The supreme court remanded the case back to the trial court. Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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