The Expansion of California’s Firefighter’s Rule Beyond its Intended Scope by Harley Glazer

The firefighter’s rule is a legal doctrine that prevents a firefighter from recovering from an individual whose ordinary negligence created the fire.[1] While it may seem harsh to disadvantage those who risk their lives to protect society, there are several policy considerations that support the doctrine.  First, firefighters should not be permitted to sue for the very negligence which begets their employment.[2] Second, firefighters receive specialized training in combating fires.[3] Thus, if they fail to properly employ their skills, they should not place the blame on the fire starter.  Third, firefighters already receive adequate compensation for the risks attendant with their employment.[4] Lastly, the general public should not be subject to double liability, given that the public already pays for the services of firefighters through taxes.[5] However, the firefighter’s rule is inappropriate in certain other contexts, which the legislature should take action to prevent.

Several California courts have inappropriately extended the firefighter’s rule to other professions. For example, in Holland v. Crumb, the California Second Appellate Division prohibited a tow truck driver from recovering for injuries he sustained when he was struck by a car while attempting to tow a car that was situated on the side of the highway. [6] In this case the firefighter’s rule should not have been employed because the policy considerations which support the rule are inapplicable in this context. Unlike firefighters and police officers, tow truck drivers do not receive additional benefits and salary increases to compensate them for the risk of being hit by a negligent driver on the highway.  Moreover, because taxpayers do not fund the salary of tow truck drivers, a judgment in favor of a tow truck driver would not subject negligent drivers to double liability.  Tow truck drivers also do not receive special training in how to avoid oncoming traffic.

The California Supreme Court’s later ruling in Neighbarger v. Irwin Industries conflicts with the Holland court’s ruling and appeared to be a step in the right direction.  First, the Neighbarger court declared that even for those employees who are engaged in hazardous work, a duty to avoid harming them still exists.[7] This directly contradicts the Holland court’s statement that any plaintiff cannot recover where his occupation exposes him to a risk which is caused by the negligent acts of another.[8] The court in Neighbarger also drew a distinct line between privately and publicly employed workers,[9] a distinction which the Holland court overlooked.  The same considerations which apply to public employees do not apply to private employees. [10]

Despite the Neighbarger court’s recognition of the faulty reasoning behind Holland, the California Supreme Court then applied such faulty reasoning in Nelson v. Priebe.[11] In Nelson v. Priebe, the court utilized the firefighter’s rule to prevent a kennel worker from recovering for injuries she sustained when, while walking a pit bull, the dog viciously attacked her.  Once again, the firefighter’s doctrine should not have been applied here.  First, the job of a kennel worker requires little expertise and employees receive only basic training.[12] The plaintiff, Priebe, stated that “although she received some general training. . . she received no special training on how to care for or manage a dog of [the pit bull’s] vicious and dangerous nature.”[13] Second, kennel workers, unlike firefighters, are not compensated for the risks which they face.  Thus, if Nelson were required to pay compensatory damages to Priebe, he would not be “paying twice,” because the compensation to the kennel covered only ordinary services required for the care of his dog, and not the risk of the dog biting employees.

The expansion of the firefighter’s rule is problematic and potentially limitless.  Currently, under the interpretation of California courts, the firefighter’s rule could be used to prevent suit by any professional who was injured in a manner that the court determines was a risk within the scope of employment.  This interpretation ignores the intended specificity of the rule; it turns the rule into a general assumption of risk doctrine, flying in the face of the policy reasons behind the rule.

One possible solutions to clarify the boundaries of the firefighter’s rule would be for the legislature to codify the rule so that the courts are not able to stretch and trim the boundaries as they see fit.  The legislature is in a position to research the effects of the rule and the reaction of the public to the rule.  Once the rule is codified, the legislature should ensure that the rule is applied narrowly and will not be susceptible to exceptions.  Moreover, as cases such as Holland indicate, it is imperative that a causal relationship exists between the initial negligence which necessitated the public officer’s presence and the injury.

The complications surrounding the rule are not an indication that it is an unfounded or unworkable rule. On the contrary, the firefighter’s rule is grounded in sound policy considerations and only becomes problematic when it is expanded beyond its intended scope.  It is important to maintain the rule because without it, there would be an immense burden on property owners to keep their premises safe, in the event that an emergency occurs which necessitates the aid of public safety officers.  A likely result of that burden would be wasteful spending. No injustice is caused when the rule is appropriately applied to firefighters and police officers, given the nature of their profession, training, and compensation. True injustice only rears its ugly head when the rule is expanded to cover professions other than firefighters and police officers, to whom some duty of care is owed.

[1] See e.g., Christopher M. Hohn, The Missouri Firefighter’s Rule, 59 Mo. L. Rev. 479, 483 (1994).

[2] See e.g., Priebe v. Nelson, 39 Cal. 4th 1112, 1136 (2006).

[3] Id.

[4] Id.  See also Walters v. Sloan, 20 Cal. 3d 199, 205–06 (1977), citing City of Palo Alto v. Industrial Acc. Comm, 232 Cal.App.2d. 305, 306 (1965).

[5] See Priebe, 39 Cal. 4th at 1136, citing Neighbarger v. Irwin Industries, 8 Cal. 4th 532, 540 (1994).  See also Benjamin K. Riley, The Fireman’s Rule, Defining its Scope Using the Cost Spreading Rationale, 71 Cal. L. Rev. 218, 235-236.

[6] Holland v. Crumb, 26 Cal. App. 4th 1844 (1994).

[7] Neighbarger, 8 Cal. 4th at 541.

[8] See Holland, 26 Cal. App. 4th at 1849-50.

[9] Neighbarger, 8 Cal. 4th at 543.

[10] Id. at 543.

[11] Priebe, 39 Cal. 4th at 1112 (2006).

[12] Neighbarger, 8 Cal. 4th at 543.

[13] Priebe, 39 Cal. 4th at 1127.