‘Fireman’s Rule’ Does Not Immunize Contractor for Negligent Work That Causes Safety Officer Injury
2008-0534. Torchik v. Boyce, Slip Opinion No. 2009-Ohio-1248.
Ross App. No. 06CA2921, 2008-Ohio-399. Judgment reversed and cause remanded to the trial court.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1248.pdf 
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(March 25, 2009) The Supreme Court of Ohio ruled today that an independent contractor whose negligent work is alleged to have caused injury to a public safety officer is not covered by a common law “fireman’s rule” that immunizes property owners from civil liability for injuries suffered by public safety officers who enter their property while on duty.
The Court’s 7-0 decision, authored by Justice Judith Ann Lanzinger, reversed a ruling by the 4th District Court of Appeals.
The case involved Ross County sheriff’s deputy Ricky Torchik, who was dispatched to the home of Jeffrey Boyce to investigate a burglar alarm that had been activated there. Torchik climbed the stairs on one side of a deck at the rear of the home to check on a door, then attempted to descend via a different set of stairs on the other side of the deck. The stairway broke loose from the deck and collapsed under him, and Torchik suffered leg injuries as a result of the fall.
Torchik filed suit in the Ross County Court of Common Pleas seeking to recover damages from both Boyce and Daniel Heskett, the contractor who had constructed the stairway that collapsed. Boyce and Heskett both filed motions for summary judgment dismissing Torchik’s claims, alleging that they were immune from liability for Torchik’s injuries under the “fireman’s rule.” The fireman’s rule generally exempts a private property owner from liability for injuries to a public safety officer who enters the property in the performance of his or her duties, unless the injury results from the owner’s wanton or illegal act or from a deliberate “trap” or from a known hidden danger about which the owner could have warned the officer but did not.
The trial court found that Torchik’s complaint raised a material question of fact regarding Heskett’s alleged negligent construction of the stairway, but granted summary judgment in favor of both defendants based on its findings that (1) both Boyce’s and Heskett’s potential liability to Torchik were subject to the fireman’s rule; and (2) the facts surrounding Torchik’s injuries did not fall under any of the rule’s exceptions, so liability could not be found on the part of either defendant.
Torchik initially appealed the trial court’s rulings involving both defendants to the 4th District Court of Appeals. He later dropped his claim with regard to the homeowner, and appealed only the summary judgment dismissing his claims against the independent contractor. The court of appeals affirmed the trial court’s decision. Torchik sought and was granted Supreme Court review of the 4th District’s ruling.
Writing for a unanimous Supreme Court in today’s decision, Justice Lanzinger said the public policy rationale that supports a general immunity for private property owners do not apply to an independent contractor like Heskett.
Justice Lanzinger wrote that in a 1996 decision, Hack v. Gillespie, this Court “offered several policy interests that justify limiting a landowner’s duty to firefighters and police officers: (1) ‘fire fighters and police officers can enter the premises of a private property owner or occupant under authority of law’; (2) landowners or occupiers cannot anticipate the presence of safety officers on the premises and would be too burdened if they owed them a duty of reasonable care; (3) all citizens share the benefits provided by firefighters and police officers and, therefore, should share in cost of workers’ compensation provided to police officers and firefighters injured on the job; and (4) firefighters and police officers assume the risk of injury by the very nature of their chosen profession and are trained to expect the unexpected.”
Justice Lanzinger found these public policy interests, however, did not justify a grant of civil immunity for independent contractors. She wrote: “(A)n independent contractor’s duty of care does not depend on whether the presence of a police officer or firefighter is expected. Once the independent contractor has completed a project on property, the contractor’s duty is set with respect to all who may be foreseeably injured due to the contractor’s negligence. See Jackson v. Franklin (1988) ... An injury is foreseeable if the independent contractor knew or should have known that its breach of duty was likely to result in harm to someone. ... Finally, assumption of the risk is also inapplicable to a situation involving an independent contractor. Firefighters and police do not assume a special risk of injury from the work of independent contractors when the risk of being injured by the contractor’s negligence applies equally to all. It would be illogical to insulate an independent contractor from a negligence claim simply because the person injured happened to be a police officer or firefighter acting in the scope of his or her official duties.”
Based on that analysis, Justice Lanzinger concluded: “Accordingly, we hold that an independent contractor whose negligence is alleged to have caused injury to police officers or firefighters acting in the scope of their official duties is not relieved of potential liability under the fireman’s rule. Because the rule does not apply to appellee Daniel Heskett to relieve him of any duty as a matter of law, this case must be analyzed under the ordinary principles of negligence. The judgment of the Ross County Court of Appeals is reversed, and the cause is remanded to the trial court.”
Contacts
Frank E. Todaro, 614,242.4333, for Ricky Torchik.
David A. Herd, 614.443.4866, for Daniel Heskett.