The Firefighter’s Rule And The Kensington Warehouse Fire Lawsuit
Yesterday the family of firefighter Daniel Sweeney, who along with Lt. Robert P. Neary died in a fire at the derelict Buck Hosiery warehouse at the corner of Jasper and York in Kensington, filed suit against the owners of the building, Yechiel Lichtenstein and Nahman Lichtenstein, and their various companies involved.
Anyone who lives around Philadelphia is undoubtedly familiar with the story, which has generated a considerable amount of outrage, but I’d be remiss if I didn’t point you to Hidden City Daily’s coverage. Note that the first story there about the condition of the warehouse, “Passing the Buck,” was originally posted ten days before the fire, and it quotes Jeff Carpineta, president of the East Kensington Neighborhood Association, worrying about the dangers posed by the building and the possibility of a fire. The building had racked up considerable tax liens, and the Lichtensteins themselves couldn’t even identify who was responsible for monitoring the property.
To put it another way, no one was surprised by the fire, and the owners knew of the buildings poor state and frequently break-ins, but hadn’t done anything about it. If I were part of the Sweeney family, I’d want justice, too.
In most states, the Sweeney’s lawsuit would be promptly dismissed. The ”firefighter’s rule” (sometimes called the “police officer’s rule” or the “rescue rule”) “bars an injured public-safety official from maintaining a negligence action against a tortfeasor whose alleged malfeasance is responsible for bringing the officer to the scene of a fire, crime, or other emergency where the officer is injured.” Higgins v. Rhode Island Hospital, 35 A.3d 919 (R.I. 2012)(dismissing lawsuit by firefighter). That’s the majority rule across the United States. See, e.g., Babes Showclub, Jaba, Inc. v. Lair, 918 NE 2d 308, 313 footnote 3 (Ind. 2009)(recounting the many ways firefighters, police officers, paramedics and emergency medical technicians have not been able to recover compensation); but see Christensen v. Murphy, 296 Or. 610, 678 P.2d 1210, 1218 (1984) (Oregon abolishes the fireman’s rule at common law).
In the tri-state area, New Jersey used to recognize the firefighter’s rule until 1993, when it was abrogated by statute. See Ruiz v. Mero, 189 N.J. 525, 917 A.2d 239, 247 (2007). For Delaware, as far as I can tell, only one trial court has ever addressed the issue, and it applied the firefighter’s rule. Carpenter v. O’Day, 562 A.2d 595 (Del. Sup. Ct., 1988).
In Pennsylvania, the courts have taken a nuanced approach, applying the rescue rule in some circumstances but not others.
Back in 1995, the Pennsylvania Superior Court explicitly affirmed that, when it comes to landowners, firefighters are “licensees,” and so are owed the same duty of care as anyone else who is permitted to be on the property:
The “fireman’s rule”, which provides that a police officer or fire fighter who enters upon the land of another in connection with official duties cannot recover from the possessor of land for subsequent injuries, has not been adopted in Pennsylvania. Mull v. Kerstetter, 373 Pa.Super. 228, 231, 540 A.2d 951, 952 (1988). Accord: Drake v. Fenton, 237 Pa. 8, 85 A. 14 (1912) (fireman who fell down unprotected elevator shaft could sue possessor of property for his injuries). A police officer who enters upon another’s land in his or her official capacity and in response to a call for assistance is generally considered a licensee. See: Mull v. Kerstetter, supra, 373 Pa.Super. at 233 n. 3, 540 A.2d at 953 n. 3. In such situations, the land owner’s duty is to warn the licensee of dangerous hidden conditions. Mull v. Kerstetter, supra, 373 Pa.Super. at 233-234, 540 A.2d at 953; Carpenter v. Penn Central Transportation Co., 269 Pa.Super. 9, 13, 409 A.2d 37, 39 (1979); Cutler v. Dushoff, 192 Pa.Super. 37, 42, 159 A.2d 524, 526 (1960). Even if a police officer enters another’s land as an invitee, moreover, the possessor of the land does not become an insurer of the officer’s safety. Cf. Winkler v. Seven Springs Farm, Inc., 240 Pa.Super. 641, 646, 359 A.2d 440, 442 (1976). The possessor’s duty is only to use reasonable care to protect his or her invitees from unknown or nonobvious dangers. Id. at 645-646, 359 A.2d at 442.
Holpp v. Fez, Inc., 656 A.2d 147 (Pa. Sup. Ct. 1995).
But there’s a catch: landowners don’t have too many duties to licensees other than the duty to warn them of hazards, and first responders are generally aware of the hazards on the property. The plaintiff in Holpp, a police officer who was injured in a fight while responding to a complaint of disorderly conduct at a banquet hall on New Year’s Eve (read a bit more about Pennsylvania dram shop law in this post or this post), had his complaint dismissed. The Court held that he “was aware of the potential for violence among patrons who had been consuming alcoholic beverages, and was conscious of the attendant risks,” and so the banquet hall didn’t breach its duties as the landowner because it neither failed to warn him of the danger of the disorderly people nor permitted a dangerous condition on the property.
That’s likely the first defense the Lichtensteins’ lawyers will raise: under Pennsylvania law, Sweeney was a licensee, and he knew he was going there to fight a five-alarm fire. As such, the Lichtensteins had no further duty to warn him of anything.
But that’s not the end of the story for the Sweeney family. Some clues for their likely response can be found in how other courts have interpreted the firefighter’s rule. As the Indiana Supreme Court said in the Babes Showclub case:
In summary, the fireman’s rule allows no claim by a professional emergency responder for the negligence that creates the emergency to which he or she responds. Professionals, whose occupations by nature expose them to particular risks, may not hold another negligent for creating the situation to which they respond in their professional capacity. However, the emergency responder remains free to sue for damages if an injury is caused by negligent or intentional tortious conduct separate and apart from the conduct that contributed to the emergency.
Babes Showclub, 918 NE 2d at 314. That “separate and apart” language is the key.
In other words, if you negligently start a fire, and a firefighter is injured as a result of that fire, the firefighter ordinarily can’t sue you because you negligently started the fire. However, if you negligently start a fire, and then the firefighter is injured by something else negligent you did, then the firefighter can sue you for that.
Which is where I think that Sweeney’s family will likely prevail. Sweeney didn’t simply die in the fire at the warehouse, he (and several other firefighters) were in an adjacent building when one of the warehouse’s walls collapsed and fell through the roof. His death (and their injuries) were thus — at least in my opinion — caused by the landowner’s negligence separate from the negligence that allowed the fire to start and thus brought the firefighters to the scene.
In one sense, once a fire starts, every harm that happens after that is “caused” by the fire. But the collapse of the wall likely wasn’t solely the result of the fire, but was also the result of the poor condition of the wall itself. (Note to law students: pull out your copy of Milwaukee & St. Paul R. Co. v. Kellogg, 94 U.S. 469 (1877) and consider how its proximate causation analysis would apply here.) We don’t yet know the cause of the fire at the Buck Hosiery warehouse — Arson? Trespassers leaving a fire unattended? — but it seems that, legally, the cause of the fire was separate and apart from the cause of wall collapse.
To put it another way, Sweeney didn’t knowingly charge into a dangerous fire and then die in the inferno. Instead, he thought he was in a comparatively safe area when one of the walls from the warehouse unexpectedly collapsed. Sweeney’s family might be precluded (either by the firefighter’s rule or, more likely, the limited duties a landowner has to a licensee) from suing the Buck Hosiery’s owners from allowing a fire to start, but they’re not precluded from suing them for failing to maintain the walls or at least giving the firefighters some warning.
Of course, those issues raise a whole host of other issues, like whether the adjacent building’s walls and roof were properly built and maintained, but those are likely issues for a jury, rather than a complete prohibition on a lawsuit, the way the fireman’s rule works.