Author by Chris Bergin, Esq.
Edited by Brian A. Cafritz, Esq.
A common risk for retails is that one of its products is defective and causes an accident. For example, if a consumer buys a product from a retailer and the product causes a fire, the retailer is sued for personal injuries or property damage due to the breach of the UCC Implied Warranties. Taking this scenario one step further, could a firefighter or emergency responder who is injured by the fire or product recover against the retailer as well?
Since at least 1968, the Commonwealth of Virginia has recognized and followed a common law doctrine called the “Fireman’s Rule.” The Fireman’s Rule holds that police officers, firefighters, and other public officials who are engaged in a high-risk activities as a result of their public duties, are not permitted to recover for a defendant’s simple negligence. Thus, for example, if a store or a restaurant negligently causes a fire on its property, it cannot be held civilly liable for any injury or death caused to firefighters who responded to the scene.
At first blush, the Fireman’s Rule seems counterintuitive, or even cruel. However, it rests upon the sound legal doctrine of assumption of risk, which is strongly adhered to in Virginia. When a firefighter, for example, responds to an alarm, she is necessarily aware that a fire is in progress and that fire-related hazards are likely to exist. Yet her duty to respond to the fire still exists, in spite of this known danger. The firefighter is duty-bound to respond to the emergency, regardless of whether the emergency was caused by someone’s negligence.
This rationale behind the Fireman’s Rule is buttressed by the fact that ordinary citizens cannot prevent firefighters from conducting their public duty to fight fires. “[I]f your neighbor notices your home on fire and alerts the fire department, you cannot say to a firefighter, ‘Don’t fight that fire; I don’t want any civil liability for your possible injuries.’” Hudgins v. Holman, 49 Va. Cir. 279, 285–86 (1999).
Despite the long history of the Fireman’s Rule in Virginia, the Virginia Supreme Court has never explicitly applied it to a products liability claim. Recently, however, in the case of Runnels v. Norcold, Inc., the District Court for the Eastern District of Virginia used the Fireman’s Rule to dismiss a Plaintiff’s product liability claim upon a Defendant’s Motion for Summary Judgment. 2017 U.S. Dist. LEXIS 446989, 1:16-cv-713 (E.D. Va. March 24, 2017).
In Runnels, a fire began in an allegedly malfunctioning refrigerator inside of a Winnebago. The Plaintiff, Brian Colbert, was a sheriff’s deputy and volunteer firefighter who arrived at the scene and was subsequently injured in the blaze. Mr. Colbert brought a personal injury lawsuit against Norcold, Inc. (“Norcold”), the manufacturer of the allegedly faulty refrigerator. Mr. Colbert admitted that, due to the Fireman’s Rule, his position as a deputy police officer precluded him from asserting a claim for ordinary negligence. However, he argued that he could assert a claim against Norcold for a breach of the implied warranty of merchantability. The District Court disagreed and granted summary judgment in favor of Norcold. Despite lacking any mandatory authority from the Supreme Court of Virginia, the District Court held that the Fireman’s Rule barred the Plaintiff’s claim for three reasons.
First, the Court explained that Virginia law does not permit tort recovery on a strict-liability theory in products-liability cases. Because Virginia had hesitated to adopt a strict liability standard for products liability law, the District Court was unwilling to adopt a blanket “products liability” exception to the Fireman’s Rule.
Second, the Court explained that the Plaintiff could not recover on a theory of breach of the implied warranty at all, because the Plaintiff was not a reasonably expected user of the refrigerator at issue. Strictly speaking, the Plaintiff was not a user, purchaser, or beneficiary of the allegedly defective product at all. Indeed, the Plaintiff never interacted with the refrigerator as a consumer—he only interacted with the fire in his official capacity as a firefighter. As such, he could not assert a claim for the breach of the implied warranty of merchantability.
Finally, the Court reviewed the persuasive case law from jurisdictions outside Virginia. It noted that the “great weight” of legal authority from neighboring jurisdictions has concluded that the Fireman’s Rule prevents Plaintiffs from recovering for product liability. The Court noted that “[i]n light of the rationale underlying the Fireman’s Rule in the first place, this conclusion makes perfect sense.” Id at 16. Regardless of what causes a fire—a party’s negligence or a defective product—a firefighter is duty-bound to respond.
This modest expansion to the applicability of the Fireman’s Rule in Virginia provides retailers merchants with an extra layer of insulation against liability. In the event of a catastrophic event caused by an allegedly malfunctioning product, retailers and manufacturers likely cannot be held liable for harm caused to firefighters and other public officials.