New Hampshire Court Limits Firefighter’s Rule–Slip and Fall Action by Firefighter May Continue Against Homeowner

“Danger invites rescue,” wrote Judge Benjamin Cordozo in his typical profound and pithy manner [see Wagner v. International Railway, 232 N.Y. 176, 133 N.E. 437 (1921)]. Cordozo’s pronouncement is generally credited with the establishment of the “rescue doctrine,” pursuant to which one who is injured while reasonably undertaking the rescue of another may recover from the one being rescued if the latter negligently placed himself or herself in a position of peril.

A number of jurisdictions have been reluctant, however, to allow recovery by firefighters, police officers, and other first responders injured in the course of their professional activities. Responding to danger, after all, is what they’ve been hired and trained to do. Whether based upon an assumption of the risk doctrine or on grounds of public policy, a minority of jurisdictions refuse to allow tort recovery by some or all first responders. After all, the fire or other crisis creates the occasion for the presence of the firefighter; he or she has no reasonable expectation that the property has been made safe for his or her arrival.

The “firefighter’s rule,” in place in approximately 20 percent of American jurisdictions, either by statute or court decision, in its most basic and straightforward version holds that a firefighter may not recover in tort from a landowner or occupier who has been negligent in starting or failing to curtail a fire [see Larson’s Workers’ Compensation Law, § 110.08].

In a recent decision from New Hampshire, Antosz v. Allain, 2012 N.H. LEXIS 24 (Feb. 24, 2012), the state high court refused to extend the rule to bar a tort claim filed by a volunteer firefighter who sustained injuries when he slipped and fell on an icy driveway as he maneuvered to a firefighting vehicle to retrieve a fire extinguisher pursuant to a request made by the lieutenant in charge. The firefighter and lieutenant were present at the personal residence due to a fire in the home’s hot water heater. The trial court granted summary judgment to the defendant home owner, finding the firefighter’s tort claim for negligence was barred by the firefighter’s rule. 

The high court reversed, finding that the rule, as codified by RSA 507:8-h, did not affect the firefighter’s causes of action for unrelated negligent conduct occurring during the firefighter’s official engagement. The firefighter had alleged injuries not due to the negligent setting of the fire or negligence in maintaining the house that might in turn have caused the fire, but rather for unrelated negligence in connection with maintenance of the driveway. The court agreed with the firefighter that the statute did not bar the firefighter’s negligence claim because his injury, caused by a slip and fall on a snow and ice covered driveway, did not arise from the conduct which created the reason for his “official engagement” at the scene, a hot water heater fire.

It would certainly appear, therefore, that in New Hampshire, if one wants to avoid tort liability to firefighters and other first responders, one needs to keep a clean and tidy house and a safe and clear driveway. If the water heater, toaster, or other household appliance starts a fire, don’t worry so much about trying to douse the flames while waiting for the fire department; spread some salt on the drive and steps and, for Heaven’s sakes, pick up those toys in the living room! Someone might fall over them.

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