Good News! “Firefighter’s
Rule” Does Not Apply To Law Enforcement Officers
by Attorney Tamara B. Packard
Cullen Weston Pines & Bach LLP
For many years, Wisconsin law has limited a firefighter’s ability to recover payment for injuries he or she receives in the course of performing his or her duties, even when a third party’s negligence caused the injury. For instance, if a homeowner negligently starts a fire and, in the course of fighting that fire, a firefighter is seriously injured, there is no recourse against the homeowner.
The Wisconsin Supreme Court recently was asked to determine whether this legal principal, called the “Firefighter’s Rule,” applied to police officers as well. The Court wisely determined that it does not. Hence, if you are injured on the job due to some third party’s negligence, you may be able to sue that person for your personal injuries, including pain and suffering. In such circumstances, you are not limited to worker’s compensation and duty disability benefits.
The recent case is Cole v. Hubanks, 2004 WI 74, which was decided by the Wisconsin Supreme Court on June 11, 2004. The case arose when City of Milwaukee Police Officer Julia Cole was on patrol and came upon a large dog wandering in the street. It had apparently come free of its chain, portions of which were still attached to its collar. Officer Cole grasped the loose end of the chain and called the dog to her, kneeling down as she did so. Suddenly, and without any prior indication of viciousness or warning, the 85- to 90-pound Akita lunged at her. It knocked her over and bit her on the face and neck. The officer received 30 stitches to close her wounds.
Officer Cole sued the owners of the dog and their insurance company, claiming that the owners negligently cared for and restrained the animal and harbored a dangerous animal, among other things. The trial court dismissed the officer’s claims based on the Firefighter’s Rule, and she appealed the trial court’s decision to the Supreme Court. Observing that “there are many differences between firefighters and police officers,” the Supreme Court found that the public policy reasons which inspired the Firefighter’s Rule do not apply to police officers’ claims, and therefore allowed Officer Cole to take her case before a jury.
What public policy considerations inspired the Firefighter’s Rule in the first place?
The Firefighter’s Rule was adopted in 1970 in Wisconsin in Hass v. Chicago & N.W. Ry. Co., 48 Wis. 2d 321, 179 N.W.2d 885 (1970). In Hass, the Supreme Court determined that a firefighter injured due to another’s negligence in starting a fire could not recover for personal injuries sustained in fighting the fire. The Court reasoned that because most fires are started by negligence, imposing liability on negligent homeowners for that kind of negligence, without more, placed too large a burden on those homeowners. Focusing on the “greater good” to be served, the Court explained that such homeowners should be encouraged to call for help in putting out a blaze and prevent it from spreading, and making them (or, really, their insurance companies) pay should a firefighter get hurt while stopping the fire would deter them from calling for help in the first place.
What is so different about police officers and firefighters that made the Court decide not to impose the same Rule on police officers?
Even though a police officer’s job, like a firefighter’s job, inherently puts the officer in harm’s way, the Supreme Court did not find that fact dispositive. Instead, the Court reasoned that unlike firefighters, who know they are exposed to danger when called to a fire, police officers often patrol all day, addressing various circumstances, some of which are not obviously dangerous. Also, firefighters are trained on how to fight fires and that is the main thing that they do in their jobs, but for the most part police officers receive no specialized training in capturing stray dogs and do not routinely catch stray dogs, even though occasionally they may be required to do so as part of the job.
Was this a unanimous decision by the Wisconsin Supreme Court?
No, former Justice Diane Sykes dissented from the decision, making it a 6 to 1 vote. According to the Alliance for Justice, Justice Sykes consistently ruled in favor of corporations, insurance companies, and big business. She has left the Wisconsin Supreme Court, having being appointed to the United States Federal Appeals Court for the Seventh Circuit (covering Wisconsin, Illinois, and Indiana) by President George W. Bush. She was confirmed by the U.S. Senate to that position on June 24, 2004. On August 18, 2004, Governor Doyle appointed Louis Butler to complete her term of office. Prior to his appointment, Justice Butler was a Milwaukee County trial court judge.
How does this case apply if I am rear-ended while patrolling in my squad car?
You should file for worker’s compensation, but because driving in your squad car is not an obviously dangerous situation (like fighting a fire is), you may not be limited to that remedy. You may also be able to bring a personal injury claim against the driver who rear-ended you and his or her insurance company to recover your lost wages, medical bills, and pain and suffering. If you are seriously injured, your spouse also may have a claim for his or her “loss of consortium,” and you may also qualify for duty disability. (See, “The Nuts and Bolts of Duty Disability Claims,” Wisconsin Police Journal, April 2004.)
What should I do if I want to pursue a personal injury claim after being injured on the job?
If you make a full recovery quickly, needing little treatment and time off from work, then you may want to settle any claim yourself. Even in this kind of a case, however, it is wise to talk with an experienced personal injury attorney soon after the injury to get some basic advice. If you have been seriously injured or are unsure as to the outcome of your injury, then you should consult an experienced personal injury attorney before you give any statements or sign papers of any kind – other than reports required as part of your job – and as soon after the injury as possible. Most attorneys who represent people in their personal injury claims get paid on a “contingent” or percentage of the full recovery, typically one-third.
As a general rule, personal injury claims must be settled or a lawsuit filed within three years of the date of the incident. There are exceptions to this rule; for instance, if the injured party is a minor or the negligent party is a governmental employee acting in the scope of his or her employment, among other exceptions.
Cullen Weston Pines & Bach LLP has several attorneys, including the author of this article, who represent injured people in their personal injury claims. If you have been injured due to the negligence of another person and wish to pursue your claim with a CWPB attorney, you may direct your inquiries to paralegal Genevieve Gibbs-Benesh, and she will forward your information to the appropriate attorney at CWPB.
