A hood gas strut exploded, firing the strut rod through the right headlight. The rod pierced McKernan's left hand and penetrated his turnout coat, striking him in the abdomen.

Personnel who, in their practice of protecting life and property, necessarily endanger their safety do not assume the risk of all injury without recourse against others.

Much has already been written about the Fireman's Rule. Many states still follow this rule, although the specific reasons for it and the legal theories on which it's based vary from one jurisdiction to another.

However, the general principle is that a firefighter who enters on the premises of another in the discharge of his or her duty may not maintain a cause of action against the individual whose negligence created the risk that required the firefighter's presence and resulted in injury to the firefighter. This definition of the rule has raised questions regarding whether it also precludes a suit by an injured firefighter against the manufacturer of a defectively designed or manufactured product that didn't cause the fire.

For example, in a Louisiana case, Holloway v. Midland Risk Insurance Company, 33-026 (La.App. 2 Cir. 5/15/00), 759 So.2d 309, Tywonia Roschelle Wilson fell asleep while operating a vehicle and struck a tree. When responding emergency workers determined that she was trapped in the vehicle, firefighter Donnie Holloway tried to remove her by using a 40-inch extrication ram.

While he was using the ram, an allegedly defective high-pressure hose ruptured, injuring him. Holloway sued Wilson and her automobile insurer, as well as his own automobile insurer and the tool manufacturer.

The suit against the automobile insurers centered on whether Wilson was grossly negligent or willful, wanton and reckless in falling asleep behind the wheel and causing a single-car accident that prompted the need for rescue services. If Holloway could prove these elements, he could then pursue his claim against the automobile insurers. His claim against the tool manufacturer was different, though, being based on a claim that the ram was defectively designed.

The Louisiana Court of Appeal stated that the Louisiana Fireman's Rule generally provided that a professional rescuer injured in the performance of his or her professional duties “assumes the risk” of such injury and is not entitled to damages. However, those personnel who, in their practice of protecting life and property, necessarily endanger their safety do not assume the risk of all injury without recourse against others.

In Louisiana, a professional rescuer may recover for an injury caused by a risk that's independent of the emergency or problem the rescuer assumed the duty to remedy. In other words, recovery may still be available if the object creating the risk could pose a hazard to the rescuer even if there had been no emergency, such as the rupture of an acetylene tank with a defective pressure-relief valve.

The court found that Wilson's negligence was remote when compared to the intervening act of the allegedly faulty design and/or manufacture of the emergency equipment. Furthermore, while operating a motor vehicle in an excessively fatigued state, as Wilson did, constitutes a negligent act, it did not, without more, amount to gross negligence or willful, wanton and reckless conduct.

Holloway was therefore unable to proceed with his claims against either of the automobile insurance carriers. Wilson's negligence did not, however, preclude Holloway from pursuing his claim against the extrication tool manufacturer, because that alleged negligence was unrelated to Wilson's negligence in causing a motor vehicle accident. Trial is set for later this year.

Another Fireman's Rule case, this time in Kansas, makes a similar point. In McKernan v. General Motors Corporation, 3 P.3d 1261 (2000), Wichita firefighter Michael W. McKernan was injured when he responded to a car fire. On arrival, he found a 1993 Oldsmobile Achieva with gasoline and rear tires burning. There were no visible flames around the car's engine compartment at that time.

Following fire department procedures, McKernan first circled the car to determine whether there were any injured people in the area and to identify hazards. He also tried to open the hood so he could disconnect the battery, but was unable to do so. As he stepped back from the car, a hood gas strut exploded, firing the strut rod through the right headlight. The rod then pierced McKernan's left hand and penetrated his turnout coat, striking him in the abdomen. The rod was later surgically removed from his left hand.

The gas strut that injured McKernan was one of two struts attached to the car's hood to hold it open when raised. The other strut later exploded during the fire, too. Firefighters heard it pass through some trees, but were unable to find it.

McKernan sued General Motors, alleging that it was negligent in designing, manufacturing or distributing automobiles with gas hood struts and in failing to warn of the risk of exploding struts. He further claimed that GM is strictly liable for his injuries because it manufactured the Achieva with latent and hidden defects and failed to warn of those defects.

McKernan brought his suit in the U.S. District Court for the District of Kansas, which certified to the Kansas Supreme Court for determination of the following two questions of law:

1. Did the Kansas Firefighter's Rule (the court adopted the more modern terminology of “firefighter” rather than “fireman”) bar a firefighter's product-liability claims against a defendant whose product exploded and injured the firefighter during the course of a car fire, but which was not the cause of the fire?

2. Must the hazard or danger that caused the injury be an anticipated, normal or otherwise foreseeable risk of firefighting to justify applying the Firefighter's Rule?

The Kansas Supreme Court noted that there are about 500 car fires a year in Wichita, and that McKernan had responded to about 50 during his career. The fire department provides training and materials that identify car fire hazards and discuss how they should be handled. As a result of McKernan's training and experience, he knew that automobile tires, gas tanks, air bags, air-conditioner evaporators, hollow drive shafts and low-impact bumpers can explode during fires.

McKernan was aware and had been trained as to the potential explosion of gas-filled hatchback struts during car fires. However, prior to this incident, the department training officers were unaware of the placement of gas struts under the hoods of vehicles. In addition, no instructors, safety training class or manual available to Wichita firefighters identified the use of gas-filled struts as hood lifts or warned of specific dangers from them.

The Kansas Supreme Court observed that generally it was a Kansas public policy that a firefighter cannot recover for injuries caused by the very wrong that initially required his or her presence in an official capacity and subjected the firefighter to harm. That public policy, in turn, precludes recovery against an individual whose negligence created a need for the presence of the firefighter at the scene in his or her professional capacity. The rule was established as a defense for owners and occupiers of land whose negligence caused a fire that resulted in injury to a firefighter.

The court then examined the basis for the rule, saying that the theory of premise liability was inadequate to create a duty owed by landowners to firefighters because firefighters are not true licensees. In other words, landowners have no authority to consent to or forbid firefighters from entering the land in fulfillment of their duties.

It further said that assumption of risk didn't work, either, because that doctrine was based on a master/servant relationship, which meant that the individual taxpayer would be the master. The court was unwilling to extend the doctrine of assumption of risk that far.

The court then stated that determining whether the Firefighter's Rule barred product-liability claims against individuals other than the person whose negligence occasioned the firefighter's presence requires a weighing of competing public policies.

On one hand, since a large proportion of fires are started by the negligence of the landowner or occupier, it would be unreasonable to make that person respond in damages to the firefighter who is employed and trained for the purpose of fighting such fires. On the other hand, there's a strong public policy argument that responsibility for these claims should be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market.

The court finally concluded that allowing product-liability claims against parties whose negligence did not create the need for the firefighter at the scene does not frustrate the public policy basis of the Firefighter's Rule as it was adopted in Kansas. It decided that this would actually promote the public policy of fixing responsibility for defective products on the party who introduces the product to the marketplace. Therefore, the Kansas Firefighter's Rule did not bar a product-liability claim against a party whose negligence did not create the need for the firefighter at the scene, and the court answered the first question “no.”

The court then addressed whether the hazard that caused the injury must be an anticipated, normal or otherwise foreseeable risk for the rule to apply. The court answered this question “yes,” saying that a firefighter can only assume hazards that are known and can be reasonably anticipated at the site of the fire and are a part of firefighting.

In this case, it was for the judge or jury to determine whether the hood struts were unknown defective products not anticipated by the firefighter. If so, the Firefighter's Rule would not preclude McKernan's recovery for his damages.

The case was set for trial on McKernan's claim, but a confidential settlement was reached by the parties in the meantime.

These two cases illustrate a few important points.

• In those states that still follow it, the Fireman's Rule might allow an injured firefighter to bring a claim for injuries unrelated to the original reason for the emergency response. In other words, claims based on defective turnout gear, scba, hand tools and other equipment might still be viable. Likewise, claims based on defective products found at the scene, such as the gas struts, may be possible.

• If such a claim occurs, preserving the offending equipment is very important. Document the condition of the equipment at the time of the injury and treat it as you would treat evidence in a criminal investigation.

• If the equipment belongs to the fire department, such as extrication tools, save all purchase, maintenance and repair records relating to it.

Philip C. Stittleburg, a Wisconsin attorney, has been chief of the La Farge (Wis.) Fire Department since 1977. He has been legal counsel for the Wisconsin State Fire Fighters Association, legal counsel and Wisconsin director for the National Volunteer Fire Council Inc., president of the nvfc Foundation, and an instructor at the National Fire Academy. Stittleburg sits on the nfpa board of directors and on both the nfpa Fire Service Occupational Safety Committee and the Fire Service Occupational Medical and Health Committee. He is also a Member of the Institution of Fire Engineers.