Indiana Court of Appeals Finds Indiana’s Firefighter’s Rule Does Not Bar Firefighter’s Personal Injury Claim

The Indiana Court of Appeals recently reviewed Indiana’s “firefighter’s rule,” ultimately ruling in favor of a firefighter injured while responding to a building fire in Fort Wayne, Indiana. In Dolsen v. VeoRide, Inc., firefighter Richard Dolsen, Jr. (“Dolsen”) responded to a fire at a building owned by Sweet Real Estate – City Center, LLC (“Sweet”) and leased to VeoRide, Inc. (“VeoRide”). VeoRide, an electric scooter company, stored scooters, batteries, and battery equipment at the building. One of the batteries ignited, causing the fire. While no VeoRide employees were at the building when the fire started, VeoRide and Sweet employees were notified of the fire and knew firefighters were responding to the fire. Dolsen, who had never been in the building before, could not see as he entered the building due to a lack of light and smoke, and as he was moving around the perimeter of the building, he fell through an open wall comprised of bare wooden studs, falling into a stairwell. At the time of the incident, Dolsen had a radio, such that any warning sent by VeoRide or Sweet could have quickly and easily been conveyed to him. Dolsen testified over his career there had been many occasions where commercial building owners or tenants would alert the fire department about potential dangers inside buildings, such as holes in floors.

Dolsen filed a personal injury lawsuit against VeoRide and Sweet alleging negligence in the handling of the batteries at the building and in failing to warn Dolsen about the opening in the wall. VeoRide filed a motion for summary judgment arguing Dolsen’s claims were barred by Indiana’s firefighter’s rule. Sweet filed a motion for summary judgment arguing it could not be held liable since it had given full possession and control of the building to VeoRide. The trial court granted both motions for summary judgment, finding Dolsen’s claims were barred by Indiana’s firefighter’s rule. Dolsen appealed the trial court’s order only with respect to VeoRide.

On appeal, the Court of Appeals reviewed Indiana Supreme Court precedent on Indiana’s firefighter’s rule. According to that precedent, Indiana’s firefighter’s rule bars any claim by a professional emergency responder for any negligent conduct that created the emergency responded to. As such, with regards to Dolsen’s claim arising from any negligence by VeoRide in handling the battery that caused the fire, the Court held that such claim was barred by the firefighter’s rule. However, as noted by the Court, Indiana’s firefighter’s rule does not bar a claim when an injury is caused by conduct separate and apart from the conduct that contributed to the emergency, even if that conduct occurred prior to the emergency responder arriving on the scene. Here, Dolsen also alleged VeoRide was negligent in failing to warn him of the dangers associated with the open wall next to the stairwell. The Court found such claim was separate from and independent of any negligent conduct causing the fire, and therefore, was not barred by Indiana’s firefighter’s rule.

Under Indiana law, claimants pursing premise liability negligence claims must prove the existence of a duty owed to the claimant, breach of that duty by the defendant, and damages proximately caused by the breach. Indiana law categorizes persons entering onto the property of another as either an invitee, a licensee, or a trespasser, and which category a person falls into defines the nature of the duty owed to the person. The highest duty of care is owed to invitees—to exercise reasonable care for the invitee’s protection while the invitee is on the premises. Trespassers are owed the lowest duty of care—a duty to refrain from wantonly or willfully injuring them after discovering their presence. As to licensees, persons privileged to enter or remain on land by virtue of permission or sufferance, such as firefighters, landowners/possessors must not willfully and wantonly injure them or act in a manner increasing their peril, which includes a duty to warn them of any latent (or non-obvious) danger on the premises that the landowner or possessor knows about.

Here, the Court noted that when Dolsen responded to the fire the building was dark and filled with smoke, such that the danger of the open wall was latent, i.e., not obvious to him. The Court found instructive Section 342 of the Restatement (Second) of Torts, which provides a possessor of land is liable to a licensee for a condition on land if (1) the possessor knows or has reason to know of the condition and should realize it involves an unreasonable risk of harm to a licensee and should expect the licensee will not discover the condition, (2) the possessor fails to exercise reasonable care to make the condition safe or warn the licensee of the condition and its risks, and (3) the licensee does not know or have reason to know of the condition and its risks. Based upon this framework, the Court concluded whether VeoRide owed Dolsen a duty to warn him of the open wall depended on underlying facts, for instance, whether VeoRide should have realized the open wall involved an unreasonable risk of harm, whether VeoRide should have expected Dolsen would not discover it, and whether VeoRide had reason to expect Dolsen would encounter the condition as part of his license to enter the land. The Court reasoned these underlying facts required resolution by a court or jury. Assuming the existence of a duty, the Court also found material issues of fact as to breach (whether VeoRide failed to exercise reasonable care to make the condition safe or warn Dolsen of the risks), causation, and comparative fault. Accordingly, the Court of Appeals reversed the trial court’s entry of summary judgment and remanded for further proceedings.

You can read the full opinion here.