Babes Showclub, Jaba, Inc. v. Lair, 49S05-0905-CV-214.

Citation918 N.E.2d 308
Case DateDecember 15, 2009
CourtSupreme Court of Indiana
918 N.E.2d 308
BABES SHOWCLUB, JABA, INC. and James B. Altman, Appellants (Defendants below),
Patrick LAIR and Lisa Lair, Appellees (Plaintiffs below).
No. 49S05-0905-CV-214.
Supreme Court of Indiana.
December 15, 2009.

[918 N.E.2d 309]

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

BOEHM, Justice.

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.

Facts and Procedural History

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,

918 N.E.2d 310

"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.

Standard of Review

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. (citing McQueen v. Fayette County Sch. Corp., 711 N.E.2d 62, 65 (Ind.Ct.App. 1999), trans. denied).

I. The Fireman's Rule

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.

A. Indiana Precedent

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

918 N.E.2d 311

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) (fireman's rule bars recovery by estate of firefighter killed attempting to rescue truck driver from contact with overhead power lines). 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) (police SWAT team member, shot while responding to a call that a man had barricaded himself inside his parents' home, cannot recover from the parents for negligence in allowing their son access to firearms); 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) (deputy sheriff injured while investigating unattended car left in busy intersection could not recover for the car owners' negligence).

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

918 N.E.2d 312

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...

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