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

The Indiana Supreme Court has upheld the right of Indiana firefighters to recover damages from negligent property owners despite the firefighter’s rule. In doing so, the court recognized that distinct from the firefighter’s rule is the rescue doctrine, which in turn impacts a third consideration: the first-responder’s rule.

Hang on to your hats for this one. It is going to get deep. A note of caution: if you are not from Indiana, it may not be all that important since most states do not draw the same distinction that their supreme court drew here. For the legal eagles – it’s another perspective on the firefighter’s rule.

The case is one we covered here previously involving Fort Wayne Fire Captain Richard Dolsen, Jr., who was injured at a commercial building fire in 2020. Captain Dolsen fell through an unfinished wall where a stud had been removed, into a stairwell. He fell roughly six feet suffering neck and arm injuries that required surgery. He was subsequently granted a disability pension.

Captain Dolsen sued the building owner Sweet Real Estate – City Center, LLC, and the tenant, VeoRide, Inc.., alleging both were negligent due to the condition of the building and their failure to warn him of the danger posed by the missing stud. The trial court concluded that the firefighter’s rule barred any recovery from either defendant.

Captain Dolsen appealed as to Veoride, claiming that its representatives were on the scene and in a position to have warned him of the danger. The Indiana Court of Appeals agreed with Captain Dolsen, prompting Veoride to appeal the case to the Indiana Supreme Court.

The court traced the history of the firefighter’s rule in Indiana from its origin in an 1893 case, up to the present. The court recognized that the firefighter’s rule has a close-relative: the rescue doctrine. The rescue doctrine holds that one whose negligence creates the need for others to come to his/her rescue, owes a duty to those who may be injured when performing such rescue. The rescue doctrine has an important limitation: a professional first-responder cannot recover damages under the rescue doctrine from a negligent party if liability is premised on their negligence in causing the need for their response. In other words, if Mr. A negligently causes a fire, and a firefighter is injured, the firefighter cannot sue Mr. A for negligence. The Indiana Supreme Court refers to this as the first-responder rule (an unfortunate choice of terms making an already difficult topic even more difficult to comprehend since we now have the firefighter’s rule, the rescue doctrine, and the first-responder’s rule to consider). In explaining the distinction, the Indiana Supreme Court ruled as follows:

  • Indiana caselaw often conflates our firefighter’s rule … with our first-responder’s rule … into one umbrella “fireman’s rule”.
  • But the history of each rule shows the firefighter’s and first-responder’s rules are separate doctrines.
  • We hold that these rules apply separately because they serve distinct functions.
  • This history shows two distinct doctrines: one applying premises-liability principles to firefighters; the other applying rescue-doctrine principles to first responders.
  • One derives from the other, but the two remain distinct in purpose and function.
  • The … firefighter’s rule defines the duty owed to firefighters in premises-liability claims when they enter premises to fight fires.
  • The … first-responder’s rule limits the duty owed to all emergency professionals responding to emergencies.
  • For reasons of public policy, these professionals should not recover tort damages for injuries they sustain while performing their public duties, including injuries from “knowingly combat[ting] the effects of others’ negligence.”
  • When, as here, both rules are implicated, we ask first whether the plaintiff seeks to recover for the negligence that caused the emergency- for the negligence, in other words, that brought the plaintiff to the emergency.
  • If so, the first-responder’s rule bars the plaintiff’s claim, and we stop there.
  • But if that is not the basis for the plaintiff’s claim, we assess the claim under [firefighter’s rule] treating the firefighter as a licensee.
  • Having defined these two rules, we next apply them to Dolsen’s claim.
  • [The] first responder’s rule “bars recovery by a professional emergency responder for the negligence that created the situation requiring the response.”
  • Only negligence “separate from and independent of the negligence that caused the situation necessitating the officer’s presence” can be the basis for liability.
  • Dolsen’s claim survives because the alleged negligence concerning the wall opening above the stairwell is distinct from the negligence that caused the emergency to which Dolsen was responding, namely, the negligent handling of a scooter battery.
  • The only disputed claim on summary judgment is Dolsen’s premises-liability claim.
  • This claim alleges that VeoRide was negligent in not fixing the opening in the wall above the stairwell and in not warning the firefighters of the wall opening during the fire.
  • The wall opening is a condition of the premises and is unrelated to the fire or its cause.
  • VeoRide contends that the claim is nonetheless related to the emergency because smoke from the fire contributed to Dolsen falling through the opening. In
  • Dolsen’s complaint and affidavit, he states that he could not see the opening because of smoke and darkness.
  • While the smoke may have partially caused Dolsen’s injuries, this does not mean the first-responder’s rule bars his claim.
  • Whether the emergency was a contributory cause of his injuries is irrelevant because the key question is whether the alleged negligence caused the emergency.
  • Under the first-responder’s rule, we look to the act (or omission) the plaintiff claims was negligent and do not consider whether the emergency contributed to the injury’s cause.
  • We bar a first-responder’s claim when the alleged negligence causes the emergency.
  • The first-responder’s rule does not apply here because Dolsen is not seeking to recover for the negligent conduct that started the emergency.
  • Dolsen does not claim he was injured because of VeoRide’s negligent handling of one of its scooter batteries. Thus, he is not foreclosed from recovery even if VeoRide did not negligently cause the fire.
  • VeoRide owed no duty to Dolsen to prevent the fire, and thus could not be negligent for causing the fire, Dolsen cannot recover for injuries caused by the fire itself. But Dolsen can still recover for injuries caused by VeoRide’s negligence as to the wall if a jury finds Dolsen’s injuries were the natural and probable consequence of VeoRide’s failure to fix the wall or to warn Dolsen of the wall opening.
  • Since the first-responder’s rule does not bar Dolsen’s claim, we address next whether an issue of fact remains on Dolsen’s premises-liability claim.
  • Dolsen’s premises-liability claim is subject to the firefighter’s rule: he was a professional firefighter who entered VeoRide’s warehouse to fight a fire.
  • Under this rule, Dolsen is a licensee, and thus VeoRide owed him a duty to refrain from “willfully or wantonly injuring him or acting in a manner to increase his peril.”
  • VeoRide “also ha[d] a duty to warn [him] of any latent danger on the premises of which [VeoRide] ha[d] knowledge.”
  • Dolsen argues VeoRide breached its duty to him by (1) willfully or wantonly acting in a manner to increase his peril by not guarding or fixing the wall opening and (2) failing to warn him of the wall opening’s latent danger. We find lingering fact issues as to both arguments.
  • As for the duty to warn, VeoRide needed to warn of any “latent” dangers on the premises of which it was aware.
  • Thus, a factual dispute remains on whether the wall opening was a latent danger when the lights were off and smoke filled the building, creating a duty to warn.
  • On this ground, too, summary judgment for VeoRide was improper.

The case will now go back to the trial court to resolve the factual questions, and perhaps go to trial. 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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