Johnson v. Teal, Civ. A. No. 91-00081-A.

Citation769 F. Supp. 947
Decision Date11 July 1991
Docket NumberCiv. A. No. 91-00081-A.
PartiesWilliam D. JOHNSON, Plaintiff, v. Chavis TEAL, Defendant.
CourtU.S. District Court — Eastern District of Virginia

Peter C. Depaolis, Koonz, McKenney & Johnson, P.C., Falls Church, Va., for William D. Johnson.

William J. Virgulak Jr., Doherty, Sheridan & Grimaldi, Fairfax, Va., for Chavis Teal.

Charles J. O'Hara, Robertson, Notarius, McNeil, Arlington, Va., for Travelers Ins. Co.

MEMORANDUM OPINION

ELLIS, District Judge.

This diversity motor vehicle accident case raises the issue, unresolved in Virginia, whether the "fireman's rule" operates to bar recovery by a policeman when he is injured by the negligence of a person unrelated to risk to which he was responding. Plaintiff, a police officer, alleges he was injured when defendant's negligently operated vehicle caused him to lose control of his motorcycle. Plaintiff, at the time, was responding to a robbery alarm. His siren and emergency lights were on, but apparently went unheeded. Defendant was neither related to, nor the cause of, the robbery to which plaintiff was responding. Although the Supreme Court of Virginia has adopted the fireman's rule, it has never been called upon to decide whether the rule applies in circumstances such as those at bar.

This matter came before the Court on defendant's Motion for Judgment on the Pleadings, or in the alternative for Summary Judgment. Because the material facts were undisputed, this matter was ripe for summary disposition on the legal issue presented. For the reasons stated from the bench and elaborated here, the Court concluded that the fireman's rule in Virginia shields from liability only those negligent acts which create the need for a fire fighter or police officer; it does not shield the negligent acts of third parties unrelated to the risk that required the officer's presence. Accordingly, defendant's motion was denied from the bench.

Facts

The pertinent facts may be simply stated. Plaintiff worked as a police officer for the Metropolitan Washington Airport Authority at Washington National Airport in Arlington, Virginia. On February 15, 1989, he received notice of an emergency holdup alarm. In response, plaintiff drove his motorcycle north on Thomas Avenue in Arlington at approximately fifteen miles per hour with full emergency gear activated. The complaint alleges that defendant was driving south on Thomas Avenue towards the intersection at Abingdon Access Road, at which southbound vehicles are required to yield the right-of-way to northbound vehicles. Plaintiff alleges that defendant negligently failed to yield the right-of-way, or to heed plaintiff's siren and emergency lights. Plaintiff further claims that defendant's negligence forced him to take evasive action and to lose control of his motorcycle. As a result, plaintiff was pinned beneath his motorcycle and suffered extensive and serious injuries.

Analysis

The fireman's rule is a common law principle holding that an injured fireman may not recover against a defendant who negligently started the fire or created the risk requiring the fire fighter's presence. Firemen, in this event, are held, as a matter of law, to have assumed the risk. The rule arose as a judicial response to the question of the standard of care property owners and occupiers owed to fire fighters who came onto their land or property in the course of performing their duties. See Pottebaum v. Hinds, 347 N.W.2d 642, 644 (Iowa 1984); W. Prosser and W. Keeton, The Law of Torts 429-430 (5th ed. 1984) (hereafter "The Law of Torts"). A fire fighter did not fit into the common law categories of invitee, licensee, and trespasser. "They clearly are not trespassers. Nor can they be classified as licensees or invitees, who enter with consent or invitation of the occupant, as consent and invitation are irrelevant to a policeman's or a fireman's privileged entry." Pearson v. Canada Contracting Co., Inc., 232 Va. 177, 349 S.E.2d 106, 110 (1986). Most courts have either classified fire fighters as licensees or have ascribed to them the same rights as enjoyed by licensees. Thus, these courts have held that an owner may be held liable for injuring fire fighters "intentionally or by willful and wanton misconduct, and he must exercise reasonable care for their protection in carrying on his activities, and give warning of hidden dangers of which he knows." The Law of Torts at 429-430.

More recently, courts have extended the fireman's rule to cover all acts of negligence which create the need for fire fighters. These courts have followed the lead of the Supreme Court of New Jersey, which reasoned, "probably most fires are attributable to negligence, and in the final analysis the policy decision is that it would be too burdensome to charge all who cause or fail to prevent fires with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created, occurrences." Krauth v. Geller, 31 N.J. 270, 157 A.2d 129, 131 (1960); see also Annotation, Liability of Owner or Occupant of Premises to Fireman Coming Thereon in Discharge of his Duty, 11 ALR 4th 597, 607-612 (1982). Thus the Krauth court held that fire fighters assume the risk of fire hazards, and no duty is "owed the fireman to exercise care so as not to require the special services for which he is trained and paid." Krauth, 157 A.2d at 131. In economic terms, then, courts implementing the rule have decided that the costs of fire fighters' injuries should be borne by society as a whole and not by the individuals whose negligent acts created the risk. In a sense, fire fighters assume the risk in return for society's assurance that they will be compensated for their injuries through their pay and the appropriate worker compensation schemes. In the words of the Supreme Court of Virginia, "it has not been the policy of the law of Virginia to facilitate litigation by such public officers as a means of compensating them for injuries received in the line of duty, but rather to impose that burden on the public generally, through workers' compensation and other benefits." Commonwealth v. Millsaps, 232 Va. 502, 352 S.E.2d 311, 315 (1987).1 And finally, courts in Virginia2 and elsewhere3 have generally held that the rule covers police officers as well as fire fighters.

The question presented here does not involve the typical focus of the fireman's rule, namely the negligently created risk that furnished the occasion for the fire fighter's or police officer's presence. Rather, the question here concerns whether the rule should be extended to risks independent of the risk that occasioned the officer's presence. Virginia has not yet squarely addressed this question.4 The Court must therefore divine what the Supreme Court of Virginia would decide if faced with this question. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); see also Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967); Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 209, 76 S.Ct. 273, 279, 100 L.Ed. 199 (1956) (Frankfurter, J. concurring). This divination process requires (i) canvassing authorities beyond Virginia, (ii) looking for clues in Virginia Supreme Court decisions applying the rule in other contexts, and (iii) analyzing whether the rule's underlying policies suggest an answer. These sources point persuasively to the conclusion that the rule should not be extended to shield negligent acts that are separate and independent from the act that occasions the officer's presence.

Most courts consider that the fireman's rule is of limited scope; they view the rule as barring recovery for the negligent act which caused public officers to be present in their official capacity, but permitting recovery for any unrelated acts of negligence. In the words of one court, "negligently-created risks that did not create the occasion for the firefighter's presence will give rise to a cause of action against the homeowner." Berko v. Freda, 93 N.J. 81, 459 A.2d 663, 666 (1983).5

Commentators, too, recognize that the rule has been "held only to apply when the firefighter or police officer is injured from the very danger, created by the defendant's act of negligence, that required his professional assistance and presence at the scene in the first place, and the rule will not shield a defendant from liability for independent acts of misconduct which otherwise cause the injury." The Law of Torts at 431; see also Annotation, 11 ALR 4th at 612-616; Note, The Fireman's Rule: Defining Its Scope Using the Cost-Spreading Rationale, 71 Calif.L.Rev. 218, 222 (1983).

Virginia authority, while not explicit on the issue at bar, still points persuasively to the same result. Analysis of the Virginia cases appropriately begins with Chesapeake & Ohio Ry. Co. v. Crouch, 208 Va. 602, 159 S.E.2d 650 (1968), cert. denied, 393 U.S. 845, 89 S.Ct. 128, 21 L.Ed.2d 115 (1968), the first case squarely adopting the rule.6 There, the Supreme Court of Virginia applied the rule to bar a fireman's estate from recovering against a railroad for fatal injuries incurred while fighting a blaze negligently caused by the railroad. In reaching this conclusion, the Crouch court, in terms especially pertinent here, emphasized the rule's reliance on the assumption of risk doctrine. And significantly, the court made clear that fire fighters do not assume any and all risks; rather, the rule operates to bar liability only for the "usual risks of injury in undertaking to suppress fires," id. 159 S.E.2d at 654, and not "risks beyond those inevitably involved in firefighting." Id. at 653. In other words, Crouch clearly limited the rule to risks inherent in fire fighting. Consistent with this, none of the authorities cited in Crouch hold that the rule shields the negligent acts of parties unrelated to the reason for the officer's presence.7

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4 cases
  • Byelick v. Vivadelli, CIV.A. 3:98CV787.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • December 20, 1999
    ...considered dicta, and the state's trial court decisions." Wells v. Liddy, 186 F.3d 505, 528 (4th Cir.1999); see also Johnson v. Teal, 769 F.Supp. 947, 949 (E.D.Va.1991). Equally appropriate for the Court's consideration are law review articles on the subject. See State Farm Fire & Cas. Co. ......
  • White v. Edmond, 91-8903
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 4, 1992
    ...omitted). Other decisions have applied a similar rationale for limiting the application of the Fireman's Rule. See Johnson v. Teal, 769 F.Supp. 947, 951-52 (E.D.Va.1991) (rejecting application of Rule under Virginia law to bar recovery by motorcycle policeman injured by negligent motorist i......
  • Aetna Cas. & Sur. Co. v. Vierra
    • United States
    • United States State Supreme Court of Rhode Island
    • January 27, 1993
    ...one of these officials. Mignone, 556 A.2d at 39; Lipson, 31 Cal.3d at 369, 644 P.2d at 826, 182 Cal.Rptr. at 633. See Johnson v. Teal, 769 F.Supp. 947, 950 (E.D.Va.1991). In Rhode Island, therefore, a tortfeasor seeking to invoke the firefighter's rule must demonstrate (1) that the tortfeas......
  • Greene v. Consolidated Freightways Corp. of Del., CIV. A. 299CV384.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • November 15, 1999
    ...officers. Id. (citing Millsaps, 232 Va. at 510, 352 S.E.2d 311 and Pearson, 232 Va. at 185, 349 S.E.2d 106); see also Johnson v. Teal, 769 F.Supp. 947, 951-52 (E.D.Va.1991) (refusing to apply fireman's rule to injury sustained by the independent act of a third-party). Greene argues that Par......

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