Torchik v. Boyce – Limits Placed on Ohio’s Fireman’s Rule

By

Henry A. Arnett

Livorno and Arnett Co., LPA

1335 Dublin Road, Suite 108-B

Columbus, Ohio 43215

Telephone: 614-224-7771

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:

An owner or occupier of private property can be liable to a fire fighter or police officer who enters the premises and is injured in the performance of his or her official job duties if (1) the injury was caused by the owner’s or occupier’s willful or wanton misconduct or affirmative act of negligence; (2) the injury was a result of a hidden trap on the premises; (3) the injury was caused by the owner’s or occupier’s violation of a duty imposed by statue or ordinance enacted for the benefit of fire fighters, or police officers; or (4) the owner or occupier was aware of the fire fighter’s or police officer’s presence on the premises, but failed to warn them of any known, hidden danger thereon.

The Deputy Sheriff ultimately appealed the dismissal of his case against the contractor to the Ohio Supreme Court. The issue before the Court in the case (Torchik v. Boyce, Supreme Court Case No. 08-0534) was whether the Fireman’s Rule should be expanded to cover, not only the property owner, but to also immunize a contractor who negligently creates a hazard on private property from liability when a police officer or firefighter is injured by that hazard.

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:

Here, we must decide if a contractor involved in the renovation of a four-story apartment building is protected by the firefighter’s rule in a negligence suit brought by a firefighter who was injured while fighting a fire in the apartment building. Under the circumstances of this case, we conclude the firefighter’s rule does not apply. 558 N.W.2d at 420.

Iowa is not the only state that has refused to expand the Fireman’s Rule beyond the property owner to third party tortfeasors. In McKernan v. General Motors Corporation (Kan. 2000), 3 P.3d 1261, the Kansas Supreme Court held that a strong public policy recognized in strict liability law is that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. That requires holding a tortfeasor responsible for his negligence, not granting him immunity. Accordingly, the Court refused to extend the Fireman’s Rule to products liability claims against third party tortfeasors. Similarly, the Wisconsin Supreme Court refused to apply the Fireman’s Rule beyond property owners to third party tortfeasors. In Hauboldt v. Union Carbide (Wisc. 1991), 467 N.W.2d 508, the Court summarized its rationale in the following manner:

None of the public policies served by the firefighter’s rule would be served by an extension of the firefighter’s rule to cover manufacturers in this situation. Hass stated that allowing recovery was likely to “place too great a burden upon homeowners, and other occupiers of real estate.” Hass, 48 Wis. 2d at 327. The rationale behind this principle is that since a large proportion of fires are started by the negligence of the landowner or occupier, it would be unreasonable to make the landowner or occupier respond in damages to the firefighter who is employed and trained for the purpose of fighting such fires. This rationale does not apply to manufacturers of defective products which directly injure firefighters who are not prepared for the danger the defective product presents. Imposing liability where a product, because of a defectively designed or manufactured safety device, explodes in a fire and injures a firefighter is no different from imposing liability for injuries caused by other defective products. The burden on the manufacturer is the same. 467 N.W.2d at 513.

Iowa, Kansas, and Wisconsin are not alone. In Court v. Grzelinski (Ill. 1978), 379 N.E.2d 281, the Illinois Supreme Court also limited the Fireman’s Rule:

“[P]ublic policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market.” (Escola v. Coca Cola Bottling Co. (1944), 24 Cal.2d 453, 462, 150 P.2d 436, 440; accord Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 618-19.) In furtherance of this public policy, a legal duty is imposed upon those responsible for creating a defective product in favor of any person to whom injury from the product may reasonably be foreseen. It would serve no societal interest to limit this duty by carving out of the class of such persons a subclass of firemen to assume the undue risks of injury inherent in defective products. We therefore hold that, to the extent a fireman is a person to whom injury from the product may reasonably be foreseen, he may recover in products liability, even though his injury was incurred while fighting a fire in the course of his employment. In so holding, we reject the opportunity to extend the “fireman’s rule” beyond its limited context of landowner/occupier liability. 379 N.E.2d at 285.

Kentucky has also refused to extend the immunity provided by the Fireman’s Rule beyond owners or occupants of the premises. Hawkins v. Sunmark Industries, Inc. (KY 1986), 727 S.W.2d 397, 401.

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.