Torchik v. Boyce – Limits Placed on Ohio’s Fireman’s Rule
Henry A. Arnett
Livorno and Arnett Co., LPA
1335 Dublin Road, Suite 108-B
Columbus, Ohio 43215
In a victory for the rights of police officers and firefighters throughout the State of Ohio, on March 25, 2009, an unanimous Ohio Supreme Court refused to extend Ohio’s Fireman’s Rule to allow independent contractors to escape liability where an emergency responder (police officer, firefighter, etc.) is injured in the course of their employment as a result of a defective condition created by that contractor. In announcing its decision in the case of Torchik v. Boyce, the Court wrote that it “ruled today that an independent contractor whose negligent work is alleged to have caused injury to a public safety officer is not covered by a common law ‘fireman’s rule’ that immunizes property owners from civil liability for injuries suffered by public safety officers who enter their property while on duty.”
The case started in 2003, when a Ross County Deputy Sheriff (Torchik) responded to an automatic alarm at a residence. He walked up the stairs on one end of a deck at the rear of the house, checked the back of the house, and then started down the stairway located at the other end of the deck. At that time the entire stairway broke free from the deck and collapsed under him, severely injuring him.
The Deputy Sheriff brought a lawsuit against the homeowner (Boyce) and against the contractor, alleging that the contractor had negligently designed and constructed the stairway. However, the trial court dismissed the lawsuit against both Boyce and the contractor, ruling that under Ohio’s “Fireman’s Rule,” the contractor did not owe a duty of care to the Deputy Sheriff and the Deputy could not recover for his injuries.
The Fireman’s Rule is a court-developed rule of law that allows property owners or occupiers to evade liability for the negligence claims of firefighters or police officers that enter onto the property in the performance of their official duty. The rule generally prevents firefighters and police officers from recovering damages from a property owner or occupant for injuries attributable to the property owner’s or occupant’s negligence. As stated by the Supreme Court in Hack v. Gillespie (1995), 74 Ohio St.3d 362:
The Ohio Association of Professional Fire Fighters filed an amicus curiae brief with the Supreme Court in support of the Deputy Sheriff. The OAPFF pointed out that the Fireman’s Rule operates to deprive a class of public servants of their right to seek compensation for injuries they receive as a result of the negligence of a property owner. Door-to-door sales representatives, water, electric and gas meter readers, postal workers and others who are injured while on the property of another, as a result of the property owner’s negligence, are entitled to receive compensation for their injuries. However, police officers and firefighters who are injured as a result of a property owner’s negligence are generally barred from seeking compensation.
The OAPFF also pointed out that the public policy concerns that supposedly justify the Fireman’s Rule have little validity today. The rule is based upon the idea that a property owner cannot anticipate the presence of a firefighter or police officer on his/her property. That supposition is no longer true, as shown in the Torchik v. Boyce case itself. There, the property owner had an installed security alarm system. The very purpose of the system was to detect any problems and then alert the Sheriff’s office, causing the dispatch of a deputy sheriff to the property. It is difficult to imagine how the property owner could not have anticipated the presence of a law enforcement officer on his property, when he had a system installed that automatically summoned the officer to his property. If a property owner installs an alarm system, isn’t that owner specifically inviting safety forces to come onto his property if the alarm sounds? How can that owner possibly be surprised when safety forces respond to the owner’s alarm? And if he knows that safety forces will be responding to his alarm, doesn’t he have the time and the opportunity to make his premises safe for those responding forces? The basis for the rule, that a landowner or occupier can rarely anticipate the presence of safety officers on the premises, is no longer accurate.
The public policy considerations that currently support the Fireman’s Rule are tenuous to begin with; those public policy considerations certainly do not support an extension of the Fireman’s Rule to allow third party tortfeasors to escape liability for their negligence. For that reason, the OAPFF also pointed out to the Ohio Supreme Court that courts in other states have examined this issue and have refused to expand the Fireman’s Rule to relieve third party tortfeasors of their liability. For instance, in Rennenger v. Pacesetter Co. (Iowa 1997), 558 N.W.2d 419, the Iowa Supreme Court refused to allow a contractor to evade liability for injuries caused to a firefighter by the contractor’s negligence. The Court’s ruling is summarized as follows:
On March 25, the Supreme Court agreed. In Torchik v. Boyce, 2009-Ohio-1248, the Ohio Supreme Court, while not overruling the Fireman’s Rule as it applies to property owners or occupants, acknowledged that the basis for the rule has no applicability to third parties such as negligent contractors. By so doing, the Court preserved the rights of firefighters and police officers to be compensated for their injuries caused by those third parties.