Babes Showclub, Jaba, Inc. v. Lair
| Decision Date | 15 December 2009 |
| Docket Number | No. 49S05-0905-CV-214.,49S05-0905-CV-214. |
| Citation | 918 N.E.2d 308 |
| Parties | BABES SHOWCLUB, JABA, INC. and James B. Altman, Appellants (Defendants below), v. Patrick LAIR and Lisa Lair, Appellees (Plaintiffs below). |
| Court | Indiana Supreme Court |
Michael P. Maxwell, Jr., Indianapolis, IN, Attorney for Appellants.
John F. Townsend, III, Indianapolis, IN, Attorney for Appellees.
On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-0805-CV-262
In this case a police officer responded to a complaint of an unruly patron at a nightclub and was assaulted by the patron. The officer sued the club for negligence in failing to maintain adequate security. We hold that the "fireman's rule" bars recovery by a professional emergency responder for the negligence that created the situation requiring the response.
On November 30, 2005, Patrick Lair, an Indianapolis police officer, responded to a report of an unruly customer at Babes Showclub, an adult entertainment business. Lair claims that shortly after he arrived, he was injured in an assault by an underage male who had been consuming alcohol at Babes. Lair sued Babes Showclub and related defendants, (collectively "Babes")1 alleging that Babes maintained a nuisance and was negligent in failing to provide adequate security. Lair also alleged that Babes's violation of Dram Shop laws and statutes prohibiting the sale of alcohol to minors caused his injuries. He sought medical expenses, lost income, and compensation for pain, suffering, and mental anguish. His wife, Lisa Lair, sued for lost services and consortium.
Babes filed a motion to dismiss for failure to state a claim on which relief could be granted, citing Indiana's fireman's rule. The trial court denied Babes's motion but certified its order for interlocutory appeal. The Court of Appeals reversed, holding that the fireman's rule precluded any recovery by Lair. Babes Showclub v. Lair, 901 N.E.2d 44, 62 (Ind.Ct.App.2009). We granted transfer.
A motion to dismiss for failure to state a claim tests the legal sufficiency of the claim, not the facts supporting it. Charter One Mortgage Corp. v. Condra, 865 N.E.2d 602, 604 (Ind.2007). Review of a trial court's grant or denial of a motion based on Trial Rule 12(B)(6) is therefore de novo. Id. When reviewing a motion to dismiss, we view the pleadings in the light most favorable to the nonmoving party, with every reasonable inference construed in the nonmovant's favor. City of New Haven v. Reichhart, 748 N.E.2d 374, 377 (Ind.2001). A complaint may not be dismissed for failure to state a claim upon which relief can be granted unless it is clear on the face of the complaint that the complaining party is not entitled to relief. Id. ().
Both Lair and Babes ask us to reconsider aspects of the fireman's rule in Indiana, and both rely on a series of prior Indiana decisions.
The fireman's rule was initially established in Indiana in 1893 by this Court's decision in Woodruff v. Bowen, 136 Ind. 431, 34 N.E. 1113 (1893). In that case, a firefighter died fighting a fire in a building in downtown Indianapolis. We held that the property owner had no liability to the firefighter for injuries incurred in responding to a fire caused by the owner's negligence. Id. The owner was aware that structural deficiencies rendered the building unsafe. We held that the owner nevertheless had no liability for the firefighter's death, even if the fire was attributable to the owner's negligence or to violation of a city safety ordinance. The Court looked to common-law premises liability in addressing the general negligence claim and determined that the fire-fighter, as a licensee,2 was owed only the duty of "abstaining from positive wrongful acts." The Court found that a city ordinance requiring property owners to maintain their premises safely was not enacted to protect firefighters, and for that reason rejected liability based on violation of the ordinance. Id., 136 Ind. at 441-45, 34 N.E. at 1117-18.
Over the ensuing century the "fireman's rule" was upheld and expanded in a number of decisions by the Court of Appeals. Although the results of these cases can be reconciled, the reasons cited did not develop a consistent theory justifying the rule. In Pallikan v. Mark, the court followed Woodruff and upheld the rule, viewing a firefighter as a licensee for the purposes of a premises liability claim and again holding that the property owner owed the firefighter only the duty of refraining from "positive wrongful acts." 163 Ind.App. 178, 180, 322 N.E.2d 398, 399 (1975). The rule was later invoked to deny recovery where the injury did not arise on the defendant's property. Koehn v. Devereaux, 495 N.E.2d 211 (Ind.Ct.App.1986) (). The rule was also applied to police officers and other professional emergency responders in addition to firefighters. See Koop v. Bailey, 502 N.E.2d 116, 117 (Ind. Ct.App.1986) (); Sports Bench, Inc. v. McPherson, 509 N.E.2d 233, 236 (Ind.Ct.App. 1987), trans. denied (off-duty deputy sheriffs who intervened to subdue an armed customer in a bar denied recovery because they were acting in their professional capacity as emergency responders); Kennedy v. Tri-City Comprehensive Comty. Mental Health Ctr., Inc., 590 N.E.2d 140, 145 (Ind.Ct.App.1992), trans. denied (police officers cannot recover for injuries sustained while responding to a disturbance involving an uncooperative patient at a residential mental health center); Fox v. Hawkins, 594 N.E.2d 493, 498 (Ind.Ct. App.1992) ().
This Court last addressed the fireman's rule in Heck v. Robey, where we invoked the exception to the rule that permitted recovery for "positive wrongful acts." 659 N.E.2d 498, 500 (Ind.1995). We held that a paramedic was not barred from recovering for injuries sustained as a result of acts occurring after the paramedic arrived on the scene. Id. at 505. Robey was a paramedic who responded to a 911 call after Heck drove a truck into a ravine at his worksite. Robey sustained back injuries when Heck, who was intoxicated, became violent as Robey attempted to extricate him from the truck. The fireman's rule did not bar Robey's claim because Heck's actions were separate and apart from his negligent act that brought Robey to the scene. Robey, as a paramedic, was an emergency responder subject to the fireman's rule, but the occupation of the injured plaintiff is not the only relevant factor. Heck's post-wreck acts exposed him to liability despite the plaintiff's status as an emergency responder. Id. at 503-504.
After Heck, Indiana's appellate courts have issued only one published opinion addressing the fireman's rule. In Johnson v. Steffen, 685 N.E.2d 1117 (Ind.Ct.App. 1997), trans. denied, a police officer working security and traffic control during a triathlon was attempting to remove a car stopped in lanes closed off for competing cyclists. The officer was struck by a bicycle ridden by one of the competitors, and sued the cyclist and the event organizers. A divided court held that the fireman's rule did not bar the officer's claims. Id. at 1119. Like the Court of Appeals in the case before us today, both the majority and the dissent in Johnson viewed Heck as limiting the fireman's rule to premises liability cases. They did not agree whether the bicycle competition course constituted premises under the control of the race organizers, and the majority concluded that the fireman's rule did not apply to Johnson's claim against those defendants because the accident did not occur on their premises. Id. Both the majority and dissenting opinions questioned the continued viability of the fireman's rule, noting the inconsistency in applying the rule to premises cases but not to off-premises cases. Both also read our opinion in Heck as abolishing public policy as a ground supporting the fireman's rule.
We think that the Johnson court reached the correct result on the facts before it, but incorrectly viewed the fireman's rule as turning solely on premises liability. The officer in Johnson was responding in the line of duty to a problem, if not an emergency, when he attempted to remove the parked car from the bicycle lane. But the cyclist's negligence in hitting the officer was not the event to which the officer was responding, and the driver of the stopped car was not a defendant. As Judge Patrick Sullivan pointed out in dissent, the organizers of the race were the persons in control of the site, and therefore had potential premises liability to the extent negligence in designing the course contributed to the accident. Johnson, 685 N.E.2d at 1125 (Sullivan, J., dissenting). See also Jackson v. Scheible, 902 N.E.2d 807, 810 (Ind.2009) (). Johnson thus differed significantly from previous Indiana cases where the fireman's rule was held to bar recovery, in each of which an injury was incurred in the course of responding in the line of duty to a situation caused by the defendant's negligence.
We do not agree that Heck limited the fireman's rule to injuries sustained on the defendant's premises. In Heck the plaintiff was allowed to recover, but not because the injury was not sustained on the defendants' premises. The "positive wrongful acts" that permitted recovery in Heck were the...
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