In what could be a decision with dramatic effect on premises liability carriers as well as those that write municipal entity policies, self insured and Joint Insurance Fund municipal insureds, on March 13, 2007 the New Jersey Supreme Court eliminated the “Firefighters’ Rule”.  This long-standing Rule barred police and firefighters from suing for injuries received as a result of the negligence or intentional conduct of the property owners where they were responding to a police fire or emergency.

In Ruiz v. Mero, A28/29-06, the Supreme Court considered the application of the Firefighter’s Rule.  Justice Long wrote for a unanimous Court, which held that first responders may recover damages from a property owner for any injury sustained when answering an emergency.  This case involved a suit for injuries against a commercial landowner brought by a police officer injured responding to a disturbance at the owner’s bar. The trial judge dismissed the complaint as barred by the Firefighter’s Rule.  The Appellate Division reversed, and held that the common law doctrine was abrogated by the Legislature.  

The origin of the rule came in the 1960 Supreme Court case Krauth v. Geller, 31 N.J. 270 (1960), which held that the owner of a house was not liable to an injured firefighter who fell at their house responding to a fire.  The Court’s reasoning was that the firefighter could not be classified as either an invitee or licensee since his entry did not depend upon permission or an invitation, and the owner could not deny him admittance.  In its interpretation this did not fit within the traditional premises liability concept.

The Firefighter’s Rule was revisited in 1991 in the case Rosa v. Dunkin Donuts, 122 N.J. 66 (1991).  At that time, a police officer was injured in a fall while assisting an unconscious person from the premises.  The Court at that time concluded that the Firefighter’s Rule barred actions for not only the negligence that is the source of the emergency, but also any tangential negligence posing an incidental hazard which is inherent in the performance of the officer’s duties. Rosa, 122 N.J. at 76.

In 1993 the New Jersey Legislature provided for a right of recovery by an injured law enforcement officer, firefighter or a volunteer first aid, emergency, ambulance or rescue squad member in cases of injury or death resulting from neglect, willful omission or culpable conduct.  N.J.S.A. 2A:62A-21 specifically states:

In addition to any other right of action or recovery otherwise available under law, whenever any law enforcement officer, firefighter, or member of a duly incorporated first aid, emergency, ambulance or rescue squad association suffers any injury, disease or death while in the lawful discharge of his official duties and that injury, disease or death is directly or indirectly the result of the neglect, willful omission, or willful or culpable conduct of any person or entity, other than that law enforcement officer, firefighter or first aid, emergency, ambulance or rescue squad member's employer or co-employee, the law enforcement officer, firefighter, or first aid, emergency, ambulance or rescue squad member suffering that injury or disease, or, in the case of death, a representative of that law enforcement officer, firefighter or first aid, emergency, ambulance or rescue squad member's estate, may seek recovery and damages from the person or entity
whose neglect, willful omission, or willful or culpable conduct resulted in that injury, disease or death.

The issue in Ruiz was whether the Legislature intended to completely abrogate the Firefighters’ Rule as contended by the plaintiff, or rather to return it to the rule prior to Rosa.  The Court interpreted the statute to provide “a broad right of action to a first responder who is injured on the premises to which he has been called.  It is broad because it encompasses all causes of action for both negligent and intentional acts, and it sweeps in injuries directly or indirectly resulting from those acts.  No limits on the right of action are recognized except for those Workers’ compensation cases involving an employer or a co-employee.”  Ruiz,  A-28/29-06 at 14.  In so finding, the Court determined that the 1993 statute did intend to abolish the Firefighter’s Rule, as was espoused in Justice Handler’s dissent in Rosa.

Is the public going to be more apprehensive about calling for assistance now that they are opening themselves up to suit by responding emergency personnel?  Will people risk life and property attempting to control a fire or diffuse a confrontation, or transport the injured themselves to the hospital rather than call for assistance?  In all probability this will not be the case, however, there is an element of increased risk now that this bar to suit has officially been lifted.  This ruling will result in a significant increase in these types of claims by first responders.

An interesting offshoot of this ruling is the extent to which there will now be potential for recoupment of claim expense directly from the property owner for workers compensation and disability claims.  This could result in a shifting of the cost burden onto the liability insurers.

An example is a New Jersey Workers Compensation Law involving a presumption of compensability for cardiovascular or cerebrovascular injury or death.   The following law is in effect:

34:15-7.3.  Cardiovascular or cerebrovascular injury or death of police, fire or emergency personnel in response to emergency; presumption of compensability.

1.    a. For any cardiovascular or cerebrovascular injury or death which occurs to an individual covered by subsection b. of this section while that individual is engaged in a response to an emergency, there shall be a rebuttable presumption that the injury or death is compensable under R.S. 34:15-1 et seq., if that injury or death occurs while the individual is responding, under orders from competent authority, to a law enforcement, public safety or medical emergency as defined in subsection c. of this section.
    b. This section shall apply to:    
(1) Any permanent or temporary member of a paid or part-paid fire or police department and force;
(2) Any member of a volunteer fire company;
(3) Any member of a volunteer first aid or rescue squad; and
(4) Any special, reserve, or auxiliary policeman doing volunteer duty.
    c. As used in this section, “law enforcement, public safety or medical emergency” means any combination of circumstances requiring immediate action to prevent the loss of human life, the destruction of property, or the violation of the criminal laws of this State or its political subdivisions, and includes, but is not limited to, the suppression of a fire, a firemanic drill, the apprehension of a criminal, or medical and rescue service.

In a case where a first responder suffers a cardiovascular or cerebrovascular injury or death (i.e. heart attack or stroke), it is presumed to be a compensable injury.  Now, pursuant to Ruiz, there is an avenue for recoupment of these medical and indemnity costs from the property owner.  The language of a particular policy could be a crucial factor in whether the property insurer would cover this.

Does this open up an avenue for recovery by the public entities who shoulder the burden of these claims now?  There now appears to be potential subrogation for reimbursement of medical and indemnity expense, since the right for such recovery is already recognized by the courts.  It remains to be seen how this will manifest, and how the interaction with other forms of insurance such as workers compensation and disability will play out, but now that a barrier which has been in place for nearly 50 years has been lifted, it is certain that there will be increased claims and resultant litigation.