Indiana Appeals Court Upholds Firefighter’s Right to Sue Despite Firefighter’s Rule

A Fort Wayne fire captain who was injured at a commercial building fire, will be able to proceed with a negligence suit against the tenant whose scooter business caused the fire. Captain Richard Dolsen, Jr., was injured in 2020 when he fell through an unfinished wall where a stud had been removed, into a stairwell.

The building was owned by Sweet Real Estate – City Center, LLC and leased to VeoRide, Inc. VeoRide used the building “to store scooters, scooter parts, batteries, battery racks, and battery recharging equipment.”

Quoting from the decision:

  • On June 11, 2020, one of the batteries ignited and started a fire in the building.
  • No VeoRide employees were on the premises at that time.
  • Around 6:00 p.m., [Sweet Real Estate broker Tiffany] Fries received a call from her company’s security chief about the fire, and she started driving toward the building.
  • Fries called the fire department and VeoRide manager Eric Xayarath, who had already been notified about the fire 2 and also was en route to the building.
  • Xayarath called [VeoRide regional general manager Benjamin] Thomas and said that “there was a fire” and “the firefighters had been called[.]”
  • Xayarath said “that he would keep [Thomas] posted on kind of next steps what was going to go on.”
  • Around 6:38 p.m., Dolsen’s unit was dispatched to the fire.
  • Dolsen had never been inside the building.
  • He was “equipped with a radio, so any warning sent by [Sweet’s employees] or [VeoRide’s employees] could quickly and easily have been conveyed to [him].”
  • On “many occasions in [his] career, [he had] responded to other fires where an owner or tenant at a commercial building [had] warned [fire department personnel] about potential dangers inside, including holes in a floor.”
  • Dolsen entered the building through a door, “at which point [he] could not see due to lack of light and smoke.”
  • He “moved around the perimeter of the inside of the building … to look for a ventilation opening and electrical breaker box by touching and pressing the inside wall to guide [him].”
  • Just after he passed a closed door “at the southeast corner of the building, [he] extended [his] left arm to press the wall, as [he] had been doing, but contacted nothing but air, and fell through an opening in the wall down into what [he] later realized was a stairwell.”
  • The wall was composed of bare wooden studs, with a gap left by a missing stud.
  • Dolsen “could not see the opening in the wall due to the lack of light and the presence of smoke.”
  • Dolsen “fell to the bottom of the stairwell” and was injured.
  • Fries and Xayarath arrived at the building after the fire was extinguished.

Captain Dolsen’s lawsuit accuses Sweet Real Estate – City Center, LLC  and VeoRide of negligence in (1) causing the fire and (2) failure to warn of fire personnel of the dangerous situation posed by the missing stud. Allen County Superior Court granted summary judgment to both Sweet and Veloride based on the firefighter’s rule. Captain Dolsen filed an appeal as to the grant of summary judgment to VeoRide.

In reversing the trial court and allowing Captain Dolsen’s suit to proceed, the Indiana Court of Appeals held:

  • In its relatively recent restatement of Indiana’s firefighter’s rule, which was originally established in 1893, the Indiana Supreme Court explained that the rule “allows no claim by a professional emergency responder for the negligence that creates the emergency to which he or she responds.”
  • Thus, Dolsen has no claim for VeoRide’s allegedly negligent handling of the scooter batteries, which allegedly started the fire to which he responded.
  • That said… an “emergency responder remains free to sue for damages if an injury is caused by negligent or intentional tortious conduct separate and apart from the conduct that contributed to the emergency.”
  • “The negligent conduct need not occur after the officer arrives on the scene, but must be separate from and independent of the negligence that caused the situation necessitating the officer’s presence. Such a claim will be subject to the provisions of Indiana’s Comparative Fault Act.”
  • Here, Dolsen alleged that VeoRide was also negligent in failing to warn him of the danger posed by the gap in the wall next to the stairwell, which he was unable to see “due to the lack of light and the presence of smoke.”
  • Clearly, this allegedly negligent conduct is separate from and independent of the negligence that caused the situation necessitating Dolsen’s presence in VeoRide’s building.
  • “Under Indiana law, the status of a person when he or she is injured on the premises of another determines the duty owed to that person by the owner of the property.”
  • A firefighter is a licensee and therefore “is owed only ‘the duty to refrain from willfully or wantonly injuring him or acting in a manner to increase his peril’ and ‘to warn the licensee of any latent [non-obvious] danger’ of which the landowner [or possessor] is aware.”
  • Based on the foregoing, we conclude that whether VeoRide owed Dolsen a duty to warn him of the gap in the wall next to the stairwell depends upon underlying facts that require resolution by the trier of fact, including whether VeoRide should have realized that the condition involved an unreasonable risk of causing physical harm to Dolsen (who did not know or have reason to know of the condition and the risk involved), whether VeoRide should have expected that Dolsen would not discover or realize the danger, and whether VeoRide had reason to expect that Dolsen would encounter the condition in the exercise of his license.
  • Assuming arguendo that such a duty existed, we further conclude that genuine issues of material fact exist regarding whether VeoRide’s failure to warn Dolsen of the condition and the risk involved was a breach of that duty, that is, a failure to exercise reasonable care under the circumstances pursuant to Restatement Section 342(b); among the factors to be considered are whether VeoRide had a reasonable opportunity to alert fire department personnel.
  • Additional issues of material fact exist regarding whether any breach of a duty to warn proximately caused Dolsen’s injuries and the extent to which Dolsen might have contributed to his injuries for purposes of the Comparative Fault Act.
  • Consequently, we reverse the trial court’s entry of summary judgment in VeoRide’s favor and remand for further proceedings.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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