Application of the Fireman’s Rule Under D.C. Law

07/13/2023

     A
plaintiff injured while performing professional rescue work may be barred from
recovery under most circumstances.

The
Professional Rescuer Doctrine, otherwise known as the Fireman’s Rule, generally
precludes recovery in tort for those whose business it is to save lives and
prevent injury to persons and property. It states that those engaged in rescue
work as part of their employment may not, as a matter of law, recover for
injuries sustained by them on the job, from those whose negligence was the
proximate cause of the injuries. Gillespie v. Washington, 395 A.2d 18,
20 (D.C. 1978).

Under
the professional rescuer doctrine, the professional rescuer is held to have
assumed the risks attending his work. "Those dangers which are inherent in
professional rescue activity, and therefore foreseeable, are willingly
submitted to by the professional rescuer when he accepts the position and the
remuneration inextricably connected therewith." Id.; see also Young v.
Sherwin-Williams Co., 569 A.2d 1173 (D.C. 1990) (“The rationale underlying
the rule is that professional rescuers, such as police or firefighters, have
assumed the risks inherent in the profession for which they are compensated by
the public”); Flowers v. Sting Security, Inc., 62 Md. App. 116, 123 n.1
(1985) (“Although called ‘the fireman's rule,’ the rule is without exception
applied to policemen as fully as it is to firemen. The rule is applied to bar
certain tort causes of action by firemen and policemen injured during the
course of their hazardous occupations.”).

The
District of Columbia Court of Appeals (“COA”) has addressed the scope and
applicability of the Professional Rescuer Doctrine in at least four reported
cases: Gillespie v. Washington, 395 A.2d 18, 20 (D.C. 1978); Young v.
Sherwin-Williams Co., 569 A.2d 1173 (D.C. 1990); Lee v. Luigi, 696
A.2d 1371, 1373-74 (D.C. 1997); Melton v. Crane Rental Co., 742 A.2d 875
(D.C. 1999).

In
Gillespie v. Washington, 395 A.2d 18, 20 (D.C. 1978), the Plaintiff was
a member of the Metropolitan Police Department's Harbor Patrol who was
responding to the scene of a capsized boat. In attempting to upright the boat
and free any remaining passengers, the Plaintiff injured his back. Plaintiff
subsequently sued the Estate of the boat’s operator (who died in the accident).
The COA stated that the proper test for determining whether the doctrine
applies to bar recovery by a professional rescuer is "whether the hazard
ultimately responsible for causing the injuries is inherently within the ambit
of those dangers which are unique to and generally associated with the
particular rescue activity.” In Gillespie, the COA held that “[s]ince
[Plaintiff’s] injuries were sustained in the regular course of his professional
rescue responsibilities, [Plaintiff’s] may not recover in this case as a matter
of law.”

In
Young v. Sherwin-Williams Co., 569 A.2d 1173
(D.C. 1990), a plaintiff firefighter sought to recover for permanent
injuries sustained after catching a man who fell off a bridge. The firefighter
argued that the professional rescuer doctrine does not apply to his case
because, when injured, he was acting outside the scope of his firefighting
duties. He based this argument on his testimony that at the time of the
accident, the plaintiff was a "pumper driver," whose primary duty was
to drive a piece of apparatus called the pumper and to connect the hoses to the
hydrant and to supply the necessary water to extinguish a fire. There was also
testimony that a firefighter is not expected to catch, either bare-handed or
with a net, a grown man falling from a height of fifty feet. The firefighter
essentially argued that the court should inquire into whether the particular
rescue operation at issue came within the firefighter's specific duties in the
company.

The
COA rejected the firefighter’s argument that rescue work was outside the scope
of his duties as a pumper driver. In explaining its reasoning, the Court stated
that:

“[the
firefighter’s] injury was caused by [rescue victim’s] fall, a risk that, far
from being hidden, was the focus of all eyes on the scene. Nor can it be said
that someone hanging from a high place in life-threatening danger is a type of
hazard unknown to firefighters in the course of their work. Finally, trying to
save [the rescue victim’s] life was not some sort of extracurricular activity
for [the firefighter].”

In
Lee v. Luigi, 696 A.2d 1371, 1373-74 (D.C. 1997), the plaintiff police
officer responded to an activated burglar alarm at a restaurant and filed suit
against the restaurant when he fell down some stairs and was injured. The
restaurant filed a motion for summary judgment and the lower court granted the
motion, holding that the claim was barred by the professional rescuer doctrine.
On appeal, the policeman argued that his claim was not barred because the
restaurant's negligence, which caused his injuries, was independent of his
police work. The COA affirmed the summary judgment, holding that the risk
involved was inherent and incidental to the policeman's work, and therefore,
his claim was barred by the professional rescuer doctrine. Further, the court
held that there was no extremely dangerous and concealed condition known to the
restaurant. The court noted that police should have reasonably expected that
property owners use portions of their premises to store items and that they may
not keep them clear for those not expected ordinarily to enter those areas.

In
addressing the scope of Plaintiff’s rescue activity, the COA stated:

[Plaintiff]
was performing his police responsibilities when he entered [Defendant’s]
premises to look for burglars or signs of burglary. The investigation
necessitated that he look in various areas of the restaurant, as he did. That
he had completed his examination of the door at the top of the stairs before he
fell does not show that his police business on the premises was at an end, as
he contends. To perform the investigation, he not only had to ascend the
stairs, but descend them as well. Nor does the fact that other officers arrived
on the scene change the purpose of [Plaintiff]’s presence in [Defendant’s]
premises at the time that he fell. [Plaintiff] seeks to draw too narrowly the
scope of the work incident to the performance of his "rescue"
activity.

Plaintiff argued that his
police responsibilities, and thus his rescue activity, were at an end by the
time of his injury (when he descended stairs of restaurant while investigating
burglary). The COA rejected this argument and held that, in light of case
precedent, the Plaintiff was still within the ambit of his police activities.

This case is helpful in
the sense that the doctrine was applied to a situation where the “professional rescuer”
was not engaged in “rescue activity” in the traditional sense. Rather, the test
is:

whether
the hazard ultimately responsible for causing the injury is inherently within
the ambit of those dangers which are unique to and generally associated with the
particular rescue activity.

The Plaintiff in Luigi,
Inc. actually argued that “he was not engaged in rescue activity at the
time he was injured” and that “he had completed his professional duties when he
fell as a result of [the restaurant owner’s] maintenance of a dangerous
condition on the stairway. However, the COA (in applying the above test) found
that the dangerous condition on the stairway was a foreseeable risk of the
officer’s “rescue activity” of searching the premises for a burglar. See id.
at 1375 (“While the doctrine may not preclude recovery for hidden or unknown
hazardous conditions, foreseeable risks are within the parameters of the
professional's work, and such risks will not support a claim for recovery.”).

The
most recent D.C. case to address the doctrine is Melton v. Crane Rental Co.,
742 A.2d 875 (D.C. 1999). In Melton, an EMT was transporting a pregnant
woman to the hospital via ambulance when he was permanently injured after a
truck crane struck the ambulance. The COA held for the first time that the
doctrine did not apply to bar the professional rescuer’s recovery because the
injury (i.e., 3^rd party traffic accident while on the way to the
hospital) was not a risk associated with the reason for the rescuer’s presence
at the scene. It appears that the COA recognized an independent tort exception
to the general doctrine. The COA stated:

Although
EMT's regularly ride in emergency vehicles as part of their employment
obligations, the fact that the emergency vehicle might become involved in a
traffic accident is not a risk associated with the reason for the rescuer's
presence at the scene.

The COA went on to state
that the only activities the professional rescuer’s doctrine immunizes from
liability are “those negligent acts that occasioned [the professional
rescuer’s] presence at the scene.” Furthermore, application of the doctrine
requires some nexus between (1) the rescue, (2) the specific rescue activity,
and (3) the negligent act causing injury. Id. at 13.

 -John Thompson, Associate

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