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SEPEGA v. DELAURA—CONCURRENCE
ROBINSON, J., with whom PALMER and McDON-
ALD, Js., join, concurring in the judgment. I agree with
the majority’s conclusion that the common-law fire-
fighter’s rule1 does not bar the claims of ordinary negli-
gence made by the plaintiff, Robert Sepega,2 a municipal
police officer, against the defendant, Lawrence R.
DeLaura. Specifically, I agree with the majority that
this case, which arises from injuries that the plaintiff
sustained when he forcibly entered a home inside of
which the defendant had barricaded himself while vio-
lating a protective order, is controlled by this court’s
decision in Levandoski v. Cone, 267 Conn. 651, 841 A.2d
208 (2004). I respectfully disagree, however, with the
analytical approach taken in the majority’s opinion inso-
far as it follows Levandoski and broadly holds that
the firefighter’s rule does not apply beyond the limited
context of premises liability. As discussed in part I
A of this concurring opinion, I believe that much of
Levandoski, echoed by the majority in the present case,
constitutes legally flawed dictum that undercuts the
duty analyses in Kaminski v. Fairfield, 216 Conn. 29,
578 A.2d 1048 (1990), and Lodge v. Arett Sales Corp.,
246 Conn. 563, 717 A.2d 215 (1998), which are based
substantially on the well established public policies that
support the firefighter’s rule, especially that of encour-
aging our citizens to call for professional help in emer-
gencies without fear of civil liability. Beyond the
majority’s reliance on Levandoski, I suggest in part I
B of this concurring opinion that the breadth of the
majority’s opinion carries with it numerous unintended
and deleterious consequences insofar as it invites first
responders to bring civil actions against victims of
crime and motor vehicle accidents. Consistent with
Kaminski and Lodge, I would instead adopt a ‘‘policy-
based approach to the firefighter’s rule [that] will
encourage the public to ask for rescue while allowing
professional rescuers to seek redress in limited but
appropriate circumstances.’’ Baldonado v. El Paso Nat-
ural Gas Co., 143 N.M. 288, 293, 176 P.3d 277 (2008).
To that end, as discussed in part II of this concurring
opinion, I read Levandoski to stand only for the limited
proposition that none of the public policies supporting
the firefighter’s rule precludes the imposition of a duty
of care on suspected criminals who are fleeing or
resisting a police officer. Accordingly, I concur only in
reversing the judgment of the trial court.
I agree with the majority’s statement of the relevant
facts, procedural history, and standard of review. Turn-
ing to the applicable legal principles, it is well settled
that a ‘‘cause of action in negligence is comprised of
four elements: duty; breach of that duty; causation;
and actual injury.’’ (Internal quotation marks omitted.)
Lawrence v. O & G Industries, Inc., 319 Conn. 641,
649, 126 A.3d 569 (2015). The application of the firefight-
er’s rule concerns the duty element of the negligence
cause of action. See, e.g., Levandoski v. Cone, supra,
267 Conn. 658–59; Roberts v. Rosenblatt, 146 Conn. 110,
112–13, 148 A.2d 142 (1959).
‘‘Whether a duty exists is a question of law for the
court, and only if the court finds that such a duty exists
does the trier of fact consider whether that duty was
breached. . . .
‘‘Duty is a legal conclusion about relationships
between individuals, made after the fact, and imperative
to a negligence cause of action. The nature of the duty,
and the specific persons to whom it is owed, are deter-
mined by the circumstances surrounding the conduct
of the individual. . . . Although it has been said that
no universal test for [duty] ever has been formulated
. . . our threshold inquiry has always been whether the
specific harm alleged by the plaintiff was foreseeable
to the defendant. The ultimate test of the existence of
the duty to use care is found in the foreseeability that
harm may result if it is not exercised. . . . By that is
not meant that one charged with negligence must be
found actually to have foreseen the probability of harm
or that the particular injury [that] resulted was foresee-
able . . . . [T]he test for the existence of a legal duty
entails (1) a determination of whether an ordinary per-
son in the defendant’s position, knowing what the
defendant knew or should have known, would antici-
pate that harm of the general nature of that suffered
was likely to result, and (2) a determination, on the basis
of a public policy analysis, of whether the defendant’s
responsibility for its negligent conduct should extend
to the particular consequences or particular plaintiff in
the case.’’ (Internal quotation marks omitted.) Law-
rence v. O & G Industries, Inc., supra, 319 Conn. 649–50.
With respect to the public policy aspect of the duty
analysis, it is well established that: ‘‘Many harms are
quite literally foreseeable, yet for pragmatic reasons,
no recovery is allowed. . . . A further inquiry must be
made, for we recognize that duty is not sacrosanct in
itself . . . but is only an expression of the sum total
of those considerations of policy [that] lead the law to
say that the plaintiff is entitled to protection. . . . The
final step in the duty inquiry, then, is to make a determi-
nation of the fundamental policy of the law, as to
whether the defendant’s responsibility should extend
to such results. . . . [I]n considering whether public
policy suggests the imposition of a duty, we . . . con-
sider the following four factors: (1) the normal expecta-
tions of the participants in the activity under review;
(2) the public policy of encouraging participation in the
activity, while weighing the safety of the participants;
(3) the avoidance of increased litigation; and (4) the
decisions of other jurisdictions. . . . [This] totality of
the circumstances rule . . . is most consistent with the
public policy goals of our legal system, as well as the
general tenor of our [tort] jurisprudence.’’ (Internal quo-
tation marks omitted.) Id., 650–51.
I
Like the majority, I begin my analysis with a review
of this court’s decision in Levandoski. I conclude that:
(1) much of Levandoski is based on flawed reasoning,
errors that the majority compounds by extending that
decision in a way that is inconsistent with the significant
public policy of encouraging Connecticut’s citizens to
seek professional help in emergencies; and (2) it was
not necessary for the court in Levandoski to reach that
broader conclusion because the facts of that case, like
those of the present case, did not implicate the funda-
mental public policies underlying the firefighter’s rule
insofar as those facts did not involve a civil action
against a citizen who requested or is receiving aid from
first responders.
A
I begin with the broader firefighter’s rule analysis in
Levandoski, in which this court held that the firefight-
er’s rule did not bar the claim of the plaintiff, a police
officer, who was injured while chasing the defendant,
whom he suspected of possessing marijuana while
attending a house party that the officer had been called
to break up. Levandoski v. Cone, supra, 267 Conn. 654–
56. In its analysis, the court considered the firefighter’s
rule as described in Furstein v. Hill, 218 Conn. 610,
615–16, 590 A.2d 939 (1991), which extended the doc-
trine to police officers. Levandoski v. Cone, supra, 659.
Observing that the firefighter’s rule was rooted in prem-
ises liability principles under § 345 (1) of the
Restatement (Second) of Torts, the court stated that it
‘‘provides, in general terms, that a firefighter or police
officer who enters private property in the exercise of his
duties occupies the status of a licensee and, therefore,
is owed a duty of care by the property owner that is
less than that owed to an ordinary invitee. . . . Thus,
under the firefighter’s rule, the landowner generally
owes the firefighter or police officer injured on his
property ‘only the duty not to injure him wilfully or
wantonly . . . .’ ’’3 (Citation omitted.) Levandoski v.
Cone, supra, 653–54, 658–59. The court determined in
Levandoski that the three major policy considera-
tions—namely, premises liability considerations,
assumption of risk, and avoiding the double taxation
of landowners given the availability of workers’ com-
pensation benefits—that supported the extension of the
firefighter’s rule to police officers in Furstein, neverthe-
less did not support the rule’s expansion ‘‘beyond the
scope of premises liability so as to bar a police officer
from recovering, based on a claim of ordinary negli-
gence, from a tortfeasor who is neither an owner nor
a person in control of the premises.’’ Id., 654; see also
id., 661–64. I believe that the court’s overbroad conclu-
sion in Levandoski that the firefighter’s rule should not
extend beyond premises liability cases rested on legally
and factually incorrect premises.
I start with the assumption of risk doctrine. In Levan-
doski, this court stated that, ‘‘to the extent that the
firefighter’s rule rests on the doctrine of assumption of
risk, it would be inconsistent with the policy of our
general tort law to extend the rule beyond its present
confines. That policy is expressed in General Statutes
§ 52-572h, pursuant to which the legislature has abol-
ished the doctrine of assumption of risk in negligence
actions.’’ (Footnote omitted.) Id., 662–63. I disagree
with Levandoski’s conclusion, echoed by the majority
in the present case, that the statutory abolition of
assumption of risk precludes expansion of the firefight-
er’s rule beyond premises liability cases. Rather, I agree
with the multitude of other courts that have concluded
that the abolition of the assumption of risk doctrine
does not by itself furnish a basis for the abolition or
restriction of the firefighter’s rule, given the substantial
public policies that continue to support the firefighter’s
rule. See, e.g., Winn v. Frasher, 116 Idaho 500, 503–504,
777 P.2d 722 (1989); Babes Showclub, Jaba, Inc. v. Lair,
918 N.E.2d 308, 313 (Ind. 2009); Apodaca v. Willmore,
306 Kan. 103, 110–12, 392 P.3d 529 (2017); Farmer v.
B & G Food Enterprises, Inc., 818 So. 2d 1154, 1157
(Miss. 2002); England v. Tasker, 129 N.H. 467, 470–71,
529 A.2d 938 (1987); Carson v. Headrick, 900 S.W.2d
685, 689–90 (Tenn. 1995); Fordham v. Oldroyd, 171 P.3d
411, 414–16 (Utah 2007); Pinter v. American Family
Mutual Ins. Co., 236 Wis. 2d 137, 152–53, 613 N.W.2d
110 (2000); see also Kreski v. Modern Wholesale Electric
Supply Co., 429 Mich. 347, 365, 415 N.W.2d 178 (1987)
(‘‘While we find that primary assumption of a risk is
still viable in Michigan, we decline to adopt the fire-
man’s rule on the basis of the doctrine. However, we
do not do so for the reason argued by plaintiff—the
lack of direct employment relationship between taxpay-
ers and fire fighters. The public policy rationales
advanced in favor of the rule are more than sufficient
to support it.’’), superseded by statute as stated in Lego
v. Liss, 498 Mich. 559, 563, 874 N.W.2d 684 (2016); but
see Christensen v. Murphy, 296 Or. 610, 619–21, 678
P.2d 1210 (1984) (relying largely on statutory abolition
of doctrine of assumption of risk, and abandoning com-
mon-law firefighter’s doctrine in Oregon, noting that
‘‘so-called policy reasons [in support of firefighter’s
rule] are merely redraped arguments drawn from prem-
ises liability or implied assumption of risk, neither of
which are now available as legal foundations in this
state’’).
I next address the court’s determination in Levan-
doski that the ‘‘distinction upon which [the firefighter’s
rule] rests, namely, whether the plaintiff is an invitee
or licensee, is itself a distinction that exists in our law
only with regard to claims based upon premises liability,
and the differing duties of care that emanate from those
distinctions are cast in terms of a landowner’s duty to
persons on his or her land.’’4 Levandoski v. Cone, supra,
267 Conn. 661–62. The court stated that ‘‘[t]his essential
link to a landowner’s liability . . . is the most compel-
ling argument for the rule, because of the reasonable
expectations of landowners, and because of the ensuing
hardship that would be visited upon a landowner in the
absence of the rule.’’5 Id., 662. Specifically, the court
observed that, ‘‘to the extent that the firefighter’s rule
rests on the avoidance of double taxation of the land-
owner and the presence of workers’ compensation ben-
efits for the injured firefighter or police officer, the
rationale does not apply to the present case. The defen-
dant is not a taxpayer, as is a landowner who pays
taxes on his or her property. Of course, although in
any given case a negligent tortfeasor who injures a
firefighter or police officer may also pay taxes to the
local municipality, that fact would be wholly fortuitous.
The point of the rule, however, is that the landowner
who owes a lesser degree of duty to the police officer
who enters his or her land has that benefit because, as
a landowner, he or she also indirectly pays the salary
of the officer through property taxes.’’ Id., 663.
In my view, Levandoski’s reliance on the defendant’s
status as a property taxpayer, echoed by the majority
in the present case, is a distinction without a difference
that manages to raise the unappealing specter of eco-
nomic classism by, in effect, bestowing tort immunity
only on landowners.6 More fundamentally, Levandoski
ignores the fact that renters of property also contribute
to the property tax coffers of the municipalities in which
they live, both directly through personal property tax
payments on vehicles and indirectly through rental pay-
ments to their landlords. Levandoski also ignores the
fact that not all first responders are solely compensated
through property tax revenues.7 Even putting aside
those first responders who are employed by the state
of Connecticut, such as state troopers, income, sales,
and other tax receipts flow to municipalities though
various state aid payments to municipalities. See, e.g.,
General Statutes § 12-19a (providing grants to munici-
palities in lieu of property tax for state-owned prop-
erty). Unlike the majority, which perpetuates these
flawed distinctions in its firefighter’s rule analysis, I
agree with those jurisdictions who understand that the
entire community pays indirectly for the services of
first responders,8 shares in the benefits of their services,
and spreads the cost of their injuries.9 See, e.g., Moody
v. Delta Western, Inc., 38 P.3d 1139, 1142–43 (Alaska
2002); Farmer v. B & G Food Enterprises, Inc., supra,
818 So. 2d 1159; Baldonado v. El Paso Natural Gas Co.,
supra, 143 N.M. 291; Pinter v. American Family Mutual
Ins. Co., supra, 236 Wis. 2d 154–55; accord Flowers
v. Rock Creek Terrace Ltd. Partnership, 308 Md. 432,
446–47, 520 A.2d 361 (1987) (relying on public policy
in abandoning premises liability distinctions as basis
for firefighter’s rule).
Second, limiting the firefighter’s rule to premises lia-
bility cases creates an absolutely illogical distinction in
both theory and practice. My research has revealed
only one other case, where, akin to the language in
Levandoski, the Illinois Supreme Court, holding that
the firefighter’s rule did not preclude a products liability
action against automobile dealer and manufacturer,
also specifically ‘‘reject[ed] the opportunity to extend
the ‘fireman’s rule’ beyond its limited context of land-
owner/occupier liability.’’ Court v. Grzelinski, 72 Ill. 2d
141, 150–51, 379 N.E.2d 281 (1978); see also Knight v.
Schneider National Carriers, Inc., 350 F. Supp. 2d 775,
782–83 (N.D. Ill. 2004) (reviewing Illinois case law sub-
sequent to Grzelinski confirming application of fire-
fighter’s rule is limited to premises liability cases). Like
the Michigan Supreme Court; see Kreski v. Modern
Wholesale Electric Supply Co., supra, 429 Mich. 376
n.19; I find Justice Ryan’s dissenting opinion in Grzelin-
ski far more persuasive, as it points out the ‘‘extremely
illogical’’ result of limiting the firefighter’s rule to prem-
ises liability cases, which ‘‘would not permit a fireman
to recover for injuries he receives in extinguishing a
fire in my automobile which I caused by negligently
pouring gasoline on the hot manifold if the automobile
is parked in my driveway, but [would permit recovery]
if my automobile is parked in the street.’’ Court v. Grzel-
inski, supra, 152.
An even more glaring error in Levandoski, which is
amplified by the majority in the present case, was the
short shrift given to Kaminski v. Fairfield, supra, 216
Conn. 29, which ‘‘held that homeowners, who had sum-
moned mental health workers to their home to evaluate
their mentally ill son, had no duty to warn a police
officer, who accompanied the mental health workers,
of the son’s dangerous and violent propensities.’’10 Lev-
andoski v. Cone, supra, 267 Conn. 664; see Kaminski
v. Fairfield, supra, 36–39. In my view, Kaminski is
significant because it is our seminal recognition, as a
matter of public policy, of the benefits of encouraging
our state’s citizens to seek assistance from our commu-
nities’ first responders, rather than stoking a fear of
liability that would create incentives for delayed calls,
self-help, or both. In concluding that the parents had
no duty to warn, the court emphasized in Kaminski
that there were ‘‘two significant uncontroverted facts:
(1) the plaintiffs disclosed [their son’s] excitable condi-
tion to the crisis team when they asked for its interven-
tion; and (2) the defendant, an armed police officer,
came to the plaintiffs’ home in the course of his profes-
sional responsibilities to assist in dealing with the
crisis to which the team had been alerted.’’ (Emphasis
added.) Kaminski v. Fairfield, supra, 37.
Turning to the second consideration, the court cited
the firefighter’s rule case law and emphasized that the
parents ‘‘cannot be held liable to the defendant for risks
that inhered in his presence, as a police officer acting
as a trained escort for a mental health team on a visit
to a disturbed patient known to be agitated and to
have access to axes. ‘[F]undamental concepts of justice
prohibit a police officer from complaining of negli-
gence in the creation of the very occasion for his
engagement. . . . This fundamental concept rests on
the assumption that governmental entities employ fire-
fighters and police officers, at least in part, to deal with
the hazards that may result from their taxpayers’ own
future acts of negligence. Exposing the negligent tax-
payer to liability for having summoned the police would
impose upon him multiple burdens for that protection.’
Berko v. Freda, 93 N.J. 81, 87, 459 A.2d 663 (1983) (a
police officer injured in the pursuit of a stolen car can-
not sue the car owner for negligence in leaving the car
with keys in the ignition).’’ (Emphasis added; footnote
omitted.) Kaminski v. Fairfield, supra, 216 Conn. 38–
39. The court observed that, in ‘‘accordance with this
principle, a police officer has been precluded from suing
parents for negligence when he was assaulted by intoxi-
cated guests at a party after having been summoned to
quell the disturbance. Walters v. Sloan, 20 Cal. 3d 199,
202–205, 571 P.2d 609, 142 Cal. Rptr. 152 (1977). Simi-
larly, a police officer struck by another car while
assisting a truck driver to gather fallen cargo was not
allowed to sue the truck driver for having negligently
secured his freight. Steelman v. Lind, 97 Nev. 425, 427–
28, 634 P.2d 666 (1981) . . . .’’ (Citations omitted.)
Kaminski v. Fairfield, supra, 39. Relying on these pub-
lic policy considerations, all of which are germane to
the firefighter’s rule, the court held that the parents
owed no duty to the police officer. Id.
Looking beyond Kaminski, public policy aspects of
the duty analysis in Lodge v. Arett Sales Corp., supra,
246 Conn. 563, also recognize the importance of timely
calls for emergency aid and, thus, support the extension
of the firefighter’s rule beyond premises liability cases.
In Lodge, this court held that a fire alarm monitoring
service, which had negligently transmitted a false alarm,
did not owe a duty to firefighters injured or killed in
an accident caused by the failure of the brakes on the
fire engine that they were using to respond to that
false alarm. Id., 567–71, 585. Beyond concluding that
the harm caused by the fire engine’s brake failure, as
opposed to an ordinary traffic accident, was not reason-
ably foreseeable; id., 577–78; the court also emphasized
that ‘‘liability should not attach because of those policy
considerations relating to the underlying purposes of
tort recovery.’’ Id., 578. After citing the firefighter’s rule
cases,11 the court emphasized that, ‘‘[i]f one who initi-
ates a false alarm may be liable for those consequences
that are not reasonably foreseeable, but, rather, are
significantly attenuated from the original negligent con-
duct, that liability will impose an unreasonable burden
on the public. The costs stemming from this undue
burden may include a substantial chilling of the will-
ingness to report an emergency prior to investigating
further to determine whether it is legitimate. Such
delay may cost precious time, possibly leading to the
unnecessary loss of life and property. It also may
reduce the willingness of property owners to install
alarms for fear of liability. Furthermore, imposing liabil-
ity for such remote consequences undoubtedly will
increase the cost of installing and monitoring alarms.
Although those social costs may not be sufficient to
prompt us to conclude that public policy dictates that
there should be no duty in a case where the harm and
the negligence are less attenuated or where the benefits
of imposing liability are more substantial, under the
circumstances of this case, we find them compelling.’’
(Emphasis added.) Id., 584–85; but see id., 585–86
(emphasizing that alarm companies can be held liable
for harms that ‘‘are reasonably foreseeable and within
the scope of the risk created by their negligent con-
duct,’’ and that brake failure on responding fire truck
was not foreseeable risk).
Indeed, even after Levandoski, our Appellate Court
has followed Lodge and Kaminski in recognizing, as
a policy matter, that it is undesirable to allow first
responders to bring negligence actions against citizens
who have called for their help. In addition to recognizing
their compensation via workers’ compensation and
other statutory benefits, these decisions observe that
it is bad public policy to create a specter of liability
that chills the reporting of emergencies. See Hollister
v. Thomas, 110 Conn. App. 692, 703–704, 955 A.2d 1212
(concluding that homeowner owed no duty to fire-
fighter, injured when jumping from fire truck, to have
reported fire more promptly), cert. denied, 289 Conn.
956, 961 A.2d 419 (2008); Demers v. Rosa, 102 Conn.
App. 497, 505–506 n.6, 925 A.2d 1165 (stating that policy
considerations disfavor allowing police officer, injured
in fall after recovering roaming dog, to bring negligence
lawsuit against dog’s owner, as existing statutory penal-
ties provide ‘‘substantial incentive for dog owners to
take appropriate precautions’’), cert. denied, 284 Conn.
907, 931 A.2d 262 (2007). Put differently, ‘‘[f]ear of a
civil action should not deter a citizen from seeking aid
in the event of a conflagration.’’ (Internal quotation
marks omitted.) Hollister v. Thomas, supra, 704.
The majority, however, relies on Dean William L.
Prosser’s criticism of this policy justification as ‘‘pre-
posterous rubbish,’’ and contends that the absence of
a firefighter’s rule will not deter citizens from calling
for emergency aid. W. Prosser, Law of Torts (4th Ed.
1971) § 61, p. 397. The majority, however, cites no legal
authority or empirical evidence tending to support Pro-
sser’s view. My research demonstrates that, although
one court has agreed with Prosser;12 see Christensen
v. Murphy, supra, 296 Or. 620; the overwhelming major-
ity of other courts continue to hold that encouraging
citizens to call for help without fear of liability, even
for emergencies of their own creation, remains a para-
mount public policy. See, e.g., Neighbarger v. Irwin
Industries, Inc., 8 Cal. 4th 532, 544, 882 P.2d 347, 34
Cal. Rptr. 2d 630 (1994); Melton v. Crane Rental Co.,
742 A.2d 875, 876 n.5 (D.C. 1999); Lanza v. Polanin,
581 So. 2d 130, 132 (Fla. 1991); Kapherr v. MFG Chemi-
cal, Inc., 277 Ga. App. 112, 114–15, 625 S.E.2d 513 (2005);
Babes Showclub, Jaba, Inc. v. Lair, supra, 918 N.E.2d
314; Pottebaum v. Hinds, 347 N.W.2d 642, 645 (Iowa
1984); Steelman v. Lind, supra, 97 Nev. 428; England
v. Tasker, supra, 129 N.H. 471; Berko v. Freda, supra,
93 N.J. 88–89; Baldonado v. El Paso Natural Gas Co.,
supra, 143 N.M. 291; Day v. Caslowitz, 713 A.2d 758,
761 (R.I. 1998); Carson v. Headrick, supra, 900 S.W.2d
690; Fordham v. Oldroyd, supra, 171 P.3d 413–14.
As one scholarly commentator, Professor Robert H.
Heidt, observes in disagreeing with Prosser, ‘‘once a
fire has started at a business . . . it is not preposterous
to think that fear of liability to the firefighters may lead
the business to delay calling the professionals in the
hope that its employees—the preferred firefighters—
can deal with the fire. Abolishing the fireman’s rule,
therefore, sends a potential defendant who discovers
a peril the message: ‘First, see if your employees can
handle it.’ ’’13 R. Heidt, ‘‘When Plaintiffs Are Premium
Planners for Their Injuries: A Fresh Look at the Fire-
man’s Rule,’’ 82 Ind. L.J. 745, 784 (2007). I agree with
his observation that, ‘‘[w]hile this message may serve
the interests of potential defendants, it offends the inter-
est of society. Defendants and their employees may
overestimate their relative competence to deal with the
peril compared to the professionals.’’14 Id.
Moreover, ‘‘government entities employ and train fir-
efighters and policemen, at least in part, to deal with
those hazards that may result from the actions or inac-
tion of an uncircumspect citizenry, it offends public
policy to say that a citizen invites private liability merely
because he happens to create a need for those public
services. . . . Citizens should be encouraged and not
in any way discouraged from relying on those public
employees who have been specially trained and paid
to deal with these hazards. Additionally, a citizen does
not have the right to exclude public safety officers from
emergency situations or to control their actions once
they have been alerted to an emergency and arrive on
the scene. Indeed, a citizen may have a legal duty to
summon a public safety officer in some instances and
[saying that] he may, in the course of discharging that
duty, risk tort liability to officers who are specially
trained and hired to cope with these hazards, [would
be] inconsistent and unfair.’’ (Citation omitted.) Potteb-
aum v. Hinds, supra, 347 N.W.2d 645; see also Babes
Showclub, Jaba, Inc. v. Lair, supra, 918 N.E.2d 314
(‘‘Thus, the automobile driver who negligently causes
an accident can call paramedics without fear that they
will sue him for causing the accident, but he must
behave reasonably once they arrive. Similarly, bar own-
ers may call the police to assist in dealing with an unruly
customer, but may not add to the danger faced by the
responding officer without exposing themselves to lia-
bility.’’); Steelman v. Lind, supra, 97 Nev. 428 (stating
that, without firefighter’s rule, ‘‘citizens would be reluc-
tant to seek the aid of a public safety officer or to have
such aid sought in their behalf upon the fear that a
subsequent claim for injury by the officer might be far
more damaging than the initial fire or assault’’).
I, therefore, agree with the Utah Supreme Court’s
characterization of Prosser’s view as mere ‘‘rhetoric,’’
along with its ‘‘prefer[ence] to inhabit a society in which
the consequences of one’s inattention do not include the
compensation of those on whom all of us collectively
confer the duty to extricate us from our distress. We
are confident that most citizens, including those who
are conversant with comparative negligence law,
believe that they now inhabit such a society. While
judges do not perform their judicial responsibilities by
enshrining widely held assumptions into the common
law, the widely held belief that one is not exposed to
tort liability for negligence requiring rescue emanates
from a broadly shared value about the workings of a
well-ordered society.’’ Fordham v. Oldroyd, supra, 171
P.3d 413–14. Put differently, in the absence of contrary
public policy direction from our legislature, I do not
countenance an approach to the common law that has
the effect of encouraging the citizens of Connecticut
to undertake self-help in emergency situations, rather
than calling 911 immediately.15
B
Beyond what I believe is the majority’s misunder-
standing of Levandoski, I suggest that the breadth of
the majority’s opinion, which renders the firefighter’s
rule completely dead letter with respect to ordinary
negligence claims, carries with it numerous unintended
consequences. Specifically, I believe that the majority’s
wholesale rejection of the firefighter’s rule and its sup-
porting public policies in nonpremises liability cases
carries the consequence of inviting first responders to
bring civil actions against victims of crime and motor
vehicle accidents. In addition to its inconsistency with
Kaminski v. Fairfield, supra, 216 Conn. 37, and Lodge
v. Arett Sales Corp., supra, 246 Conn. 584–85, which
remain good law notwithstanding the overbreadth of
Levandoski, the majority’s conclusion ignores the
advantages attendant to modern formulations of the
public policy-based firefighter’s rule, which ‘‘encour-
age[s] the public to ask for rescue while allowing profes-
sional rescuers to seek redress in limited but
appropriate circumstances.’’ Baldonado v. El Paso Nat-
ural Gas Co., supra, 143 N.M. 293.
To begin, the mischief of the majority’s outright rejec-
tion of the firefighter’s rule beyond premises liability
cases is illustrated by the kinds of cases that would get
their ill-deserved day in court, including:16 (1) an action
against a domestic violence victim, claiming that,
although she had told an emergency dispatcher that
her husband was occasionally violent and had guns in
the home, she had negligently failed to warn police of
certain specific threats, after which two police officers
were shot while escorting her home;17 (2) an action
against parents after their teenage daughter hosted a
wild house party resulting in an injury to a police officer
in the course of arresting a party attendee for public
drunkenness;18 (3) an action against the owner of a
stolen vehicle, claiming that the keys had been negli-
gently left inside of the ignition, after the resulting chase
injured a police officer;19 (4) an action against a residen-
tial care facility who summoned police for assistance
with an agitated and incoherent resident;20 (5) an action
against a restaurant or tavern owner who summoned
police for assistance in dealing with a disturbance;21 (6)
an action against the driver of a car involved in an
accident by an emergency medical technician, who sus-
tained a hernia while extricating a passenger from a
vehicle;22 and (7) an action against the driver of a car
involved in an accident, after a police officer that had
been assisting him was struck and injured by another
car.23
I cite these cases only for illustration, as it may well
be that the facts of particular cases militate in favor of
recognizing a duty of care, even on the part of someone
receiving help. Indeed, I emphasize that the flexible
nature of the public policy-based firefighter’s rule
allows us to leave the courthouse doors open to first
responders injured in the line of duty under circum-
stances that do not implicate penalizing citizens who
have called for emergency help, such as the present
case. Indeed, other courts have allowed actions against
independent tortfeasors who injure first responders act-
ing in the line of duty. See, e.g., Melton v. Crane Rental
Co., supra, 742 A.2d 876–79 (doctrine did not bar action
by emergency medical technician when crane truck
struck ambulance transporting patient to hospital);
McKernan v. General Motors Corp., 269 Kan. 131, 133,
140–41, 3 P.3d 1261 (2000) (doctrine did not bar prod-
ucts liability action against automobile manufacturer
whose hood strut exploded, injuring firefighter working
at car fire scene); Aetna Casualty & Surety Co. v.
Vierra, 619 A.2d 436, 439–40 (R.I. 1993) (doctrine did
not bar action by police officer against driver who
struck him while he was directing traffic at accident
scene, because that driver was ‘‘independent tortfea-
sor’’). Similarly, subsequent negligence, including the
duty not to mislead first responders about known haz-
ards, has also been recognized as an exception to the
firefighter’s rule. See, e.g., Lipson v. Superior Court,
31 Cal. 3d 362, 365, 373, 644 P.2d 822, 182 Cal. Rptr.
629 (1982) (firefighter’s rule did not bar action by fire-
fighters against chemical plant owner who negligently
or intentionally told firefighters responding to boilover
that there were no toxic chemicals involved).
Thus, I emphasize that I would join those jurisdictions
that have retained the common-law firefighter’s rule as
a matter of public policy, notwithstanding underlying
doctrinal changes such as the statutory abolition of
assumption of risk or differing landowners’ duties.24 As
the New Mexico Supreme Court has observed, given
these shifts in the common law, ‘‘[m]ost modern deci-
sions base the firefighter’s rule on a public policy ratio-
nale.’’25 Baldonado v. El Paso Natural Gas Co., supra,
143 N.M. 291; see also Moody v. Delta Western, Inc.,
supra, 38 P.3d 1142; Apodaca v. Willmore, supra, 306
Kan. 122; Farmer v. B & G Food Enterprises, Inc.,
supra, 818 So. 2d 1159–60; Ellinwood v. Cohen, 87 A.3d
1054, 1058 n.5 (R.I. 2014); Fordham v. Oldroyd, supra,
171 P.3d 413–14. This allows for an ‘‘approach to the
firefighter’s rule [that] will encourage the public to ask
for rescue while allowing professional rescuers to seek
redress in limited but appropriate circumstances.’’ Bal-
donado v. El Paso Natural Gas Co., supra, 143 N.M. 293.
I agree, then, with the Rhode Island Supreme Court
that the firefighter’s rule ‘‘bar[s] an injured public-safety
official from maintaining a negligence action against a
tortfeasor whose alleged malfeasance is responsible for
bringing the officer to the scene of a fire, crime, or
other emergency where the officer is injured. . . . To
be shielded from liability under the public-safety offi-
cer’s rule, the defendant, or alleged tortfeasor, must
establish three elements: (1) that the tortfeasor injured
the [first responder] . . . in the course of [the first
responder’s] employment; (2) that the risk the tortfea-
sor created was the type of risk that one could reason-
ably anticipate would arise in the dangerous situation
which [the first responder’s] employment requires [him
or her] to encounter; and (3) that the tortfeasor is the
individual who created the dangerous situation which
brought the [first responder] . . . to the . . . accident
scene . . . .’’ (Citations omitted; internal quotation
marks omitted.) Ellinwood v. Cohen, supra, 87 A.3d
1057–58.
With respect to the circumstances under which it is
appropriate for our first responders to seek redress,
I find instructive the Kansas Supreme Court’s recent
formulation of exceptions to the firefighter’s rule, under
which ‘‘law enforcement officers, like firefighters, who
suffer injuries as a result of discharging their duties at
the scene of negligently caused hazards or conditions
their jobs require them to mitigate and eliminate cannot
recover from the person or persons responsible for the
existence of the hazards or conditions, unless one of
the three exceptions . . . applies. Under those excep-
tions, a law enforcement officer will not be barred from
recovery [1] for negligence or intentional acts of mis-
conduct by a third party, [2] if the individual responsible
for the [officer’s] presence engages in a subsequent act
of negligence after the [officer] arrives at the scene,26
or [3] if an individual fails to warn of known, hidden
dangers on his premises or misrepresents the nature
of the hazard where such misconduct causes the injury
to the [officer].’’ (Footnote added; internal quotation
marks omitted.) Apodaca v. Willmore, supra, 306
Kan. 122–23.
Legislative action, as in some of our sister states,
would be ideal for making the appropriate findings and
articulating the contours of Connecticut’s firefighter’s
rule. See footnote 15 of this concurring opinion. Never-
theless, until such time as our legislature can act, I
would adopt a formulation of the firefighter’s rule as a
matter of common law that encourages citizens to seek
help in emergencies, while not slamming the court-
house door to appropriate claims of our first
responders.
II
Although I respectfully disagree with its firefighter’s
rule analysis, I nevertheless agree with the majority’s
order reversing the judgment of the trial court on the
ground that the firefighter’s rule does not bar the plain-
tiff’s claims. I reach this conclusion because the facts
of the present case, as in Levandoski, do not implicate
the public policy of encouraging calls for emergency
assistance. I suggest that Levandoski may be more nar-
rowly read to hold that the firefighter’s rule does not
preclude the imposition of a duty of care on persons
fleeing or resisting police officers, which is not inconsis-
tent with the public policy of encouraging Connecticut’s
citizens to summon emergency services when they
are needed.
Specifically, Pennsylvania’s intermediate appellate
court has cited Levandoski in support of its conclusion
that a person who fled from a police officer owed that
officer, who was injured during the chase, a duty of
care given factors such as: (1) ‘‘the utter dearth of social
utility of . . . conduct in fleeing from an officer’’; (2)
‘‘the obvious risk and foreseeability of possible injury
to the pursuing officer’’; (3) ‘‘the positive consequences
of discouraging flight and encouraging apprehension of
criminals’’; and (4) ‘‘the public interest in empowering
police to enforce the law and keep the communities safe
. . . .’’ Schemberg v. Smicherko, 85 A.3d 1071, 1076 (Pa.
Super. 2014); see also Lanza v. Polanin, supra, 581 So.
2d 132 (firefighter’s rule did not bar action by police
officer against passenger in vehicle involved in accident
that occasioned officer’s presence, when passenger
injured officer in course of resisting arrest); Trainor
v. Santana, 86 N.J. 403, 404–408, 432 A.2d 23 (1981)
(firefighter’s rule did not bar action against defendant
who injured police officer while trying to escape from
arrest during traffic stop).
Indeed, in holding that the firefighter’s rule, as a mat-
ter of public policy, barred a police officer injured after
a high speed chase from bringing a civil claim against
the owner of a stolen vehicle, claiming negligence for
leaving the keys in the ignition, the New Jersey Supreme
Court emphasized that ‘‘nothing in the ‘fireman’s rule’
prevents [the police officer] from suing the thief.’’ Berko
v. Freda, supra, 93 N.J. 90. The New Jersey court aptly
rejected the proposition that police officers who fight
crime ‘‘must expect an occasional encounter with vio-
lence. Why then should they be permitted to sue a thief
for personal injuries when they have assumed the risk
that the thief might fight back? We resolve this paradox
by observing that the public policy underlying the fire-
man’s rule simply does not extend to intentional abuse
directed specifically at a police officer. To permit this
would be to countenance unlimited violence directed
at the policeman in the course of most routine duties.
Certainly the policeman and his employer should have
some private recourse for injuries so blatantly and crim-
inally inflicted. . . . No fundamental unfairness results
from allowing an officer to sue a criminal. The crook
does not summon the police for help. While the police
are paid to risk being assaulted, they are not paid to
submit to a criminal assault.’’27 (Citation omitted; inter-
nal quotation marks omitted.) Id., 90.
To me, this is where the reach of Levandoski should
end, namely, with a holding that the firefighter’s rule
does not preclude police officers from bringing civil
actions against suspects or perpetrators who have
endangered them through their conduct in fleeing from
or resisting apprehension. Indeed, like the fleeing defen-
dant in Levandoski, the defendant in the present case,
by barricading himself in the house after violating a
protective order, actively engaged in conduct that had
the effect of endangering the plaintiff after his arrival
at the scene. Put differently, the defendant was not the
party who sought or received emergency aid; instead,
his conduct was consistent with the plaintiff, a law
enforcement officer, being the last person he wanted
to see.28 Given that the relatively high risks created by
the defendant’s conduct bring with them minimal social
utility, it does not implicate any fundamental principle
of justice to hold that he owed the plaintiff a duty of
reasonable care. Accordingly, I agree with the majority
that the trial court improperly granted the defendant’s
motion to strike in the present case.
I concur in the majority’s judgment reversing the
judgment of the trial court and remanding the case for
further proceedings according to law.
1
Given its applicability to other emergency professions such as police
officers, the doctrine known in Connecticut as the firefighter’s rule has been
described in other jurisdictions using broader terms such as the ‘‘public
safety officer’s rule’’ or the ‘‘professional rescuers doctrine.’’ (Internal quota-
tion marks omitted.) Ellinwood v. Cohen, 87 A.3d 1054, 1058 n.4 (R.I. 2014);
see also, e.g., Seibert Security Services, Inc. v. Superior Court, 18 Cal. App.
4th 394, 404 n.3, 22 Cal. Rptr. 2d 514 (1993) (noting that doctrine was
historically known as ‘‘fireman’s rule,’’ with modern case law embracing
gender-neutral term ‘‘firefighter’s rule’’). I refer to police officers, firefighters,
and emergency medical technicians, collectively, as first responders.
2
I note that the town of Clinton is also a plaintiff in the present case. See
footnote 1 of the majority opinion. For the sake of simplicity, I refer to
Sepega as the plaintiff.
3
As noted in Levandoski v. Cone, supra, 267 Conn. 658–59, Connecticut’s
seminal firefighter’s rule case is Roberts v. Rosenblatt, supra, 146 Conn.
112–13, which held that a firefighter, as a licensee, could not recover from
landowners based on the negligent maintenance of their property when he
was injured while responding to an alarm.
4
‘‘Unlike the minority of other states that have abolished distinctions
between licensees and invitees in favor of the general duty of reasonable
care that the plaintiff favors, we continue to adhere to the proposition that
the defendant’s duty is based on the entry status of the particular person
in question.’’ Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323,
330–31, 612 A.2d 1197 (1992).
5
I suggest that Levandoski’s incorrect distinction between ordinary negli-
gence and premises liability cases, which is reaffirmed in the majority opin-
ion in the present case, is rooted in dictum in footnote 12 in Lodge, which
initially cited Furstein v. Hill, supra, 218 Conn. 615–16, for the otherwise
unremarkable proposition that ‘‘the firefighter rule . . . gives a firefighter
the status of a licensee in a personal injury action against a landowner for
harm sustained during the course of duty.’’ Lodge v. Arett Sales Corp., supra,
246 Conn. 580 n.12. In Lodge, the court further stated that the ‘‘firefighter
rule is not directly applicable in this case because this is not an issue of
landowner liability, and we decline to extend the rule to the present situa-
tion.’’ (Emphasis added.) Id. As is apparent from the majority’s reliance
upon it, I believe that the use of this phrase in Lodge sowed confusion
because the court immediately shifted gears, nevertheless describing the
‘‘rationale’’ of the firefighter’s rule as instructive for understanding the policy
issues relevant to compensation of firefighters injured in the line of duty,
namely, the ‘‘inherently hazardous’’ nature of firefighting, and the fact that
‘‘firefighters are adequately compensated for the job they perform and are
able to recover workers’ compensation for injuries sustained in the course
of their employment.’’ Id.
6
I agree with the majority that economic classism in this area, should it
persist as a result of the majority’s decision to follow Levandoski and confine
the rule to premises liability cases, might well present a ‘‘good reason to
do away with the firefighter’s rule entirely,’’ but also, that this case does
not present that question. Although the defendant’s briefing strategy aptly
attempts to harmonize Levandoski and the court’s earlier decision in Kamin-
ski, it nevertheless also invites the court to overrule Levandoski as neces-
sary. Bearing in mind well established principles of stare decisis; see, e.g.,
Conway v. Wilton, 238 Conn. 653, 658–61, 680 A.2d 242 (1996); I believe
that many aspects of Levandoski are clearly wrong when read in the context
of this court’s earlier decisions and subsequent decisions of the Appellate
Court. Put differently, I would not entertain overruling the firefighter’s rule
itself in the present case, but I would overrule Levandoski insofar as it
stands for the broad proposition that the firefighter’s rule does not extend
beyond the context of premises liability.
7
The majority posits that the availability of homeowners insurance miti-
gates the likelihood of double taxation, in both ordinary negligence and
premises liability cases, because that insurance will pay for damages arising
from negligently inflicted injuries to police officers and firefighters. I would
not consider liability insurance in this aspect of the public policy analysis
because insurance companies may well accommodate for increased expo-
sure and costs by some combination of increased premiums or decreased
coverage. See R. Heidt, ‘‘When Plaintiffs Are Premium Planners for Their
Injuries: A Fresh Look at the Fireman’s Rule,’’ 82 Ind. L.J. 745, 788–92
(2007) (arguing that first party insurers are better able to account for risks
encountered by first responders than are liability insurers, which will lead
to increased liability insurance prices, particularly given unpredictable
nature of tort awards); accord Pottebaum v. Hinds, 347 N.W.2d 642, 645–46
(Iowa 1984) (‘‘although we are aware of the widespread existence of liability
insurance, we believe these risks are more effectively and fairly spread by
passing them onto the public through the government entities that employ
firefighters and police officers’’); cf. Jarmie v. Troncale, 306 Conn. 578,
600–601, 50 A.3d 802 (2012) (declining to extend health care providers’ duty
of care from patients to general public, with respect to failure to warn
patient not to drive, because ‘‘[i]njured parties may be covered by their
own motor vehicle and health insurance policies,’’ rendering unjustified the
‘‘impact of the proposed duty on thousands of physician-patient relationships
across the state and the potentially high costs associated with increased liti-
gation’’).
8
Citing data from the United States Department of Labor, the majority
considers it discriminatory ‘‘against public safety officers’’ to expand the
firefighter’s rule beyond premises liability cases, observing that ‘‘[w]hile
there is certainly danger inherent in the job of being a police officer or a
firefighter, it is interesting to note that, in terms of the most dangerous
public sector jobs, refuse and recyclable collectors ranked as the fifth most
dangerous overall job in the United States in 2015, ahead of both firefighters
and police officers.’’ The majority observes that, ‘‘[d]espite these statistics,
we do not have a similar rule for refuse and recyclable collectors. Instead,
a refuse and recyclable collector may bring a civil action against third-party
tortfeasors responsible for his or her injuries if he or she is injured on
someone’s property. If one of the foundations underlying the firefighter’s
rule is that the job of police officers and firefighters are so inherently
dangerous that danger and injury are part of the job, it hardly seems justified
to extend the rule when statistically there are more dangerous public sector
jobs in which we allow the injured worker to pursue recovery from a third-
party.’’ (Footnote omitted.) I respectfully disagree.
In my view, the danger of the public safety professions relative to other
public sector jobs, such as refuse collection, is not the primary driving policy
behind the firefighter’s rule. Rather, I view the firefighter’s rule as reflective
of the fact that, in contrast to more predictable, yet potentially dangerous,
activities such as refuse collection and roadway maintenance, many emer-
gencies requiring the services of first responders, such as fires and motor
vehicle accidents, are the product of antecedent negligent acts. Accordingly,
I reject a public policy that would potentially penalize Connecticut’s citizens
for calling for assistance in an emergency, and otherwise dissuade them
from calling for help sooner, rather than later.
9
Under limited circumstances; see part I B of this concurring opinion; I
agree, however, with the court’s rejection of the position that, ‘‘simply
because the firefighter or police officer has recourse to workers’ compensa-
tion benefits, he or she should not also be able to recover from a third party
based on negligence. We do not ordinarily put such an elevated burden on
recovery where, for example, the third party is a product manufacturer, and
we see no persuasive reason to do so in the context of the present case.
In addition, as the present case indicates, permitting the plaintiff to recover
for the defendant’s negligence will tend to reduce workers’ compensation
costs by permitting the plaintiff’s employer to recoup those benefits.’’ Levan-
doski v. Cone, supra, 267 Conn. 663–64; see also General Statutes § 31-293.
10
The court blithely stated in Levandoski that Kaminski ’’did not present
the applicability of the firefighter’s rule to a nonlandowner.’’ Levandoski v.
Cone, supra, 267 Conn. 664. The court also noted that, ‘‘although, in rejecting
the claim of a duty to warn [in Kaminski], we used language and cited some
out-of-state cases that appear to apply beyond the confines of landowner’s
liability . . . our principal rationale was consistent with the limitation of
the rule to premises liability cases, namely, the risk of double taxation.
Thus, we stated: Exposing the negligent taxpayer to liability for having
summoned the police would impose upon him multiple burdens for that
protection.’’ (Citation omitted; internal quotation marks omitted.) Id. Accord-
ingly, the court stated in Levandoski that it ‘‘agree[d] with those jurisdictions
that have framed the rule as one that relates specifically to premises liability
and defines the duty owed by an owner or occupier of land.’’ (Emphasis
omitted.) Id.
11
The court further cited the public policy analysis in the firefighter’s
rule cases, namely, Furstein v. Hill, supra, 218 Conn. 619, and Roberts v.
Rosenblatt, supra, 146 Conn. 112, for the proposition that ‘‘the public [rather
than individual defendants] should compensate its safety officers both in
pay that reflects the hazard of their work and in workers’ compensation
benefits for injuries suffered when the risks inherent in the occupation
materialize.’’ (Internal quotation marks omitted.) Lodge v. Arett Sales Corp.,
supra, 246 Conn. 579–80. Indeed, the court emphasized that firefighters
‘‘have been compensated for their risk by society as a whole by way of
workers’ compensation as well as other statutory benefits provided to
injured firefighters’’ under General Statutes §§ 7-432 and 7-433b, meaning
that ‘‘[t]o impose additional liability on the defendants under these circum-
stances would impose an undue burden on individual members of the pub-
lic.’’ Id., 580–81. Significantly, the court also ‘‘[c]ounterbalanc[ed] the limited
benefit of providing [the firefighters] with greater compensation than is
available through workers’ compensation and other statutory disability and
survivor benefits [against] the significant costs that would derive from impos-
ing liability under the facts presented. We frequently have concluded that
when the social costs associated with liability are too high to justify its
imposition, no duty will be found.’’ Id., 584.
The court also noted that ‘‘[i]mposing liability on [the alarm company and
its customer] would have the deleterious effect of exempting the party that
is primarily responsible for the plaintiffs’ harm from all liability,’’ because the
municipality, which negligently failed to maintain the fire engine, ‘‘normally
would be entitled to recover [under General Statutes § 31-293] the full costs
of workers’ compensation benefits paid to the plaintiffs from any judgment
against these defendants. Such exemption would reward the [municipality]
for the conduct that directly caused this accident by shifting the entire
burden of liability to the shoulders of the defendants for their tangential
role in initiating the sequence of events that led to the plaintiffs’ injuries.’’
Id., 583–84.
12
I note that another prominent treatise shares Prosser’s view, although it
acknowledges that ‘‘[e]xtraordinary situations’’ might exist where deterrence
might be a factor, such as certain commercial premises. See 5 F. Harper,
et al., Torts (3d Ed. 2008) § 27.14, p. 294 and n.38.
13
Heidt also cites anecdotal evidence from Connecticut of a case wherein
an emergency medical technician sued a heart attack victim after the emer-
gency medical technician slipped on the victim’s staircase while moving
him into the ambulance. See R. Heidt, ‘‘When Plaintiffs Are Premium Planners
for Their Injuries: A Fresh Look at the Fireman’s Rule,’’ 82 Ind. L.J. 745,
784 n.143 (2007).
14
As Heidt explains further, ‘‘[i]n time, abolition [of the firefighter’s rule]
would threaten to create at least the appearance of professional rescuers
being more willing to risk themselves to save the life and property of some
members of the public than of others similarly situated. Suits by professional
rescuers arising from a peril may raise doubts about the integrity of the
subsequent investigation of the peril, and undermine the public perception
of rescuers, the morale of the squad, and the self-respect of individual
rescuers. The incentive the prospect of tort recovery gives rescuers to
exaggerate their injuries and malinger collides head-on with the culture and
the norms that help rescuers serve their mission. Crime victims and home
and business owners who are aware of the toxic character of litigation,
especially for defendants, may, when faced with a peril, think twice about
summoning the professionals, much to the disadvantage of society.’’ R.
Heidt, supra, 82 Ind. L.J. 787–88; see also id., 788 (‘‘in light of the other
incentives operating on potential defendants, liability seems likely to yield
only a modest improvement in precaution taking against police and fire
perils’’).
15
Given that public policy concerns about chilling our citizens’ willingness
to report emergencies already have formed a basis for our common-law
decision making in Kaminski v. Fairfield, supra, 216 Conn. 38–39, and
Lodge v. Arett Sales Corp., supra, 246 Conn. 580–81, I submit that the
legislature is the appropriate forum for any reexamination of the legislative
facts underlying our common-law decisionmaking. See Campos v. Coleman,
319 Conn. 36, 66, 123 A.3d 854 (2015) (Zarella, J., dissenting) (‘‘[T]he legisla-
ture, unlike this court, is institutionally equipped to gather all of the neces-
sary facts to determine whether a claim for loss of parental consortium
should be permitted and, if it should, how far it should extend. The legislature
can hold public hearings, collect data unconstrained by concerns of rele-
vancy and probative value, listen to evidence from a variety of experts, and
elicit input from industry and society in general.’’ [Emphasis omitted.]).
16
The majority criticizes me for reading its holding, namely that ‘‘the
firefighter’s rule should [not] be extended beyond the scope of premises
liability,’’ broadly and suggesting that its holding might well lead to an alleged
‘‘parade of horribles that transforms the firefighter’s rule far beyond its
definition,’’ including lawsuits against victims of crime and motor vehicle
accidents. The majority posits that ‘‘[t]his suggestion transforms the firefight-
er’s rule into a much broader debate about common-law negligence, duty,
and responsibility,’’ and ‘‘goes far beyond the facts of the present case and
amounts to a general advisory opinion.’’ I adamantly disagree with this
assertion, and note that, on the one hand, the majority argues that the
‘‘doctrine should be confined to the facts of the present case insofar as it
involves a property owner.’’ On the other hand, it repeatedly uses broad
language stating that the firefighter’s rule has no application beyond a certain
class of cases. Part II of this concurring opinion provides a narrow, case-
specific resolution to the discrete legal issue presented in this case. My use
of a so-called ‘‘parade of horribles’’ in this section is merely to demonstrate
the real world implications of the majority’s application of the firefighter’s
rule. The words that we use in our opinions matter; they have real world
consequences, and a broad statement with regard to the applicability of the
firefighter’s rule will have a direct effect on our future cases. Accordingly,
I embrace the public policy-based approach to the firefighter’s rule precisely
because it affords us the flexibility to accommodate for the unique facts of
each case. See, e.g., Baldonado v. El Paso Natural Gas Co., supra, 143
N.M. 293.
17
See Carson v. Headrick, supra, 900 S.W.2d 686–87.
18
See Walters v. Sloan, supra, 20 Cal. 3d 201–202.
19
See Moody v. Delta Western, Inc., supra, 38 P.3d 1140; Berko v. Freda,
supra, 93 N.J. 83.
20
See Kennedy v. Tri-City Comprehensive Community Mental Health
Center, Inc., 590 N.E.2d 140, 141 (Ind. App. 1992).
21
See Babes Showclub, Jaba, Inc. v. Lair, supra, 918 N.E.2d 309–10; Potteb-
aum v. Hinds, supra, 347 N.W.2d 643; Farmer v. B & G Food Enterprises,
Inc., supra, 818 So. 2d 1155–56.
22
See Pinter v. American Family Mutual Ins. Co., supra, 236 Wis. 2d
142; see also England v. Tasker, supra, 129 N.H. 468 (police officer injured
knee while extricating passenger from defendant’s wrecked car). As the
majority notes, I recognize that some jurisdictions, including a Connecticut
Superior Court, have held that the firefighter’s rule does not extend to
emergency medical personnel—particularly those who are not public
employees. See Nagy v. Arsenault, Superior Court, judicial district of Wind-
ham, Docket No. CV-14-6007793-S (May 21, 2015) (60 Conn. L. Rptr. 389);
see also, e.g., Krause v. U.S. Truck Co., 787 S.W.2d 708, 713 (Mo. 1990) (en
banc); cf. Heck v. Robey, 659 N.E.2d 498, 500–504 (Ind. 1995) (firefighter’s
rule did not bar paramedic’s claim when patient’s acts of negligence took
place after paramedic’s arrival at scene, when patient was kicking and flailing
during extrication from car). I note that, although I cite Pinter as illustrative
of the lack of a firefighter’s rule, I leave to another day the question of
whether the firefighter’s rule applies to emergency medical personnel.
23
See Wietecha v. Peoronard, 102 N.J. 591, 595, 510 A.2d 19 (1986) (per
curiam); Ellinwood v. Cohen, 87 A.3d 1054, 1056 (R.I. 2014); Fordham v.
Oldroyd, supra, 171 P.3d 412; see also Steelman v. Lind, supra, 97 Nev.
428–29 (police officer struck by vehicle while parked behind truck driver
gathering fallen cargo cannot recover against truck driver for having negli-
gently secured freight).
24
As the Kansas Supreme Court comprehensively explained in Apodaca v.
Willmore, supra, 306 Kan. 113–14, the legislatures of several states, including
California, Nevada, and New Hampshire, have codified the firefighter’s rule
in their respective statutes. See Cal. Civil Code § 1714.9 (Deering 2015);
Nev. Rev. Stat. § 41.139 (2015); N.H. Rev. Stat. Ann. § 507:8-h (West 2010).
Accordingly, I do not understand why the majority criticizes my reliance
on the Nevada Supreme Court’s decision in Steelman v. Lind, supra, 97
Nev. 425, insofar as that state’s firefighter’s rule statute codified that decision,
the reach of which had been limited to those acts of negligence occasioning
the first responder’s presence on the scene. See Borgerson v. Scanlon, 117
Nev. 216, 220–21, 19 P.3d 236 (2001); Moody v. Manny’s Auto Repair, 110
Nev. 320, 328, 871 P.2d 935 (1994).
Several other state legislatures have, however, limited or abrogated their
common-law firefighter’s rules. See, e.g., Fla. Stat. Ann. § 112.182 (1) (West
2014) (premises liability); Minn. Stat. Ann. § 604.06 (West 2010); Ruiz v.
Mero, 189 N.J. 525, 536–38, 917 A.2d 239 (2007) (noting that state legislature
abolished firefighter’s rule except as to officer’s employer or co-employee);
Wadler v. New York, 14 N.Y.3d 192, 194, 925 N.E.2d 875, 899 N.Y.S.2d 73
(2010) (noting that state statute limits firefighter’s rule to actions against
officer’s employer or co-employee).
I disagree with the majority’s position that the Florida and New Jersey
statutes blunt the persuasive impact of the decisions of the state supreme
courts in Lanza v. Polanin, supra, 581 So. 2d 130, and Berko v. Freda, supra,
93 N.J. 81, with respect to the present case. First, the Florida statute is
plainly and unambiguously cast in terms of premises liability, and my
research reveals no case law expanding it beyond that context. See Fla.
Stat. Ann. § 112.182 (1) (West 2014) (‘‘A firefighter or properly identified
law enforcement officer who lawfully enters upon the premises of another
in the discharge of his or her duty occupies the status of an invitee. The
common-law rule that such a firefighter or law enforcement officer occupies
the status of a licensee is hereby abolished.’’). Second, although the New
Jersey statute largely abolishes the firefighter’s rule in that state, the reason-
ing of Berko v. Freda, supra, 93 N.J. 84–91, remains persuasive and instructive
in the context of the common law. See, e.g., Moody v. Delta Western, Inc.,
supra, 38 P.3d 1141.
25
As the majority points out, the appellate courts of a small minority of
jurisdictions, notably Oregon and South Carolina, have rejected the firefight-
er’s law as a matter of common law. See also Court v. Grzelinski, supra,
72 Ill. 2d 150–51 (limiting firefighter’s rule to premises liability cases); Angelo
v. Campus Crest at Orono, LLC, United States District Court, Docket No.
1:15CV469 (JCN) (D. Maine February 1, 2016) (discussing two Maine trial
court decisions declining to adopt firefighter’s rule, and denying motion to
dismiss because the state’s supreme court had not yet adopted firefighter’s
rule, with further consideration of issue ‘‘more appropriately made with a
fully-developed record’’). The leading case on the minority view is Chris-
tensen v. Murphy, supra, 296 Or. 619–21, which relied largely on the statutory
abolition of assumption of risk in abandoning the firefighter’s rule, noting
that ‘‘so-called policy reasons [in support of firefighter’s rule] are merely
redraped arguments drawn from premises liability or implied assumption
of risk, neither of which are now available as legal foundations in this
state.’’ I view Christensen, including its reliance on Prosser’s criticism, as
inconsistent with our decisions in Kaminski v. Fairfield, supra, 216 Conn.
38–39, and Lodge v. Arett Sales Corp., supra, 246 Conn. 584–85. Christensen
also is also inconsistent with our well established duty and public policy
analysis; see, e.g., Lawrence v. O & G Industries, Inc., supra, 319 Conn.
650–51; because the Oregon Supreme Court expressly declined to consider
the costs and benefits of increased litigation in its analysis of the firefighter’s
rule. See Christensen v. Murphy, supra, 620.
The South Carolina Supreme Court’s decision in Minnich v. Med-Waste,
Inc., 349 S.C. 567, 564 S.E.2d 98 (2002), is similarly unpersuasive. In that
case, the South Carolina Supreme Court declined to adopt the firefighter’s
rule as question of first impression because ‘‘those jurisdictions which have
adopted the firefighter’s rule offer no uniform justification therefor, nor do
they agree on a consistent application of the rule. The legislatures in many
jurisdictions which adhere to the rule have found it necessary to modify or
abolish the rule.’’ Id., 575. I disagree with this analysis, insofar as its criticism
of the doctrine’s exceptions fails to appreciate the nuance necessary to
achieve a rule that is just for both citizen and first responder.
I do, however, disagree with the majority’s reliance on Hopkins v. Med-
eiros, 48 Mass. App. Ct. 600, 724 N.E.2d 336 (2000), for the proposition that
Massachusetts has rejected the firefighter’s rule as a matter of common
law. Although the Hopkins decision had some discussion of the minority
of jurisdictions that have rejected the firefighter’s rule as a matter of common
law, such as Christensen v. Murphy, supra, 296 Or. 610, it ultimately decided
the issue on statutory grounds, relying on the existence of ‘‘two [state]
statutes . . . that grant police officers the right to file suit against alleged
tortfeasors . . . . The [l]egislature has thereby expressly chosen not to
immunize such individuals from suits in tort. We think this consideration
decisive, and it constrains us to conclude that the firefighter’s rule has no
continuing vitality in Massachusetts. To conclude otherwise would contra-
vene legislative intent.’’ Hopkins v. Medeiros, supra, 608–609.
Finally, I disagree with the majority’s reliance on Thompson v. FMC
Corp., 710 So. 2d 1270, 1271 (Ala. Civ. App. 1997), and Bath Excavating &
Construction Co. v. Wills, 847 P.2d 1141, 1146–47 (Colo. 1993), for the
proposition that those jurisdictions have ‘‘refused’’ or ‘‘declined’’ to adopt
the firefighter’s rule. Those cases stand only for the far different proposition
that the Alabama Court of Civil Appeals and the Colorado Supreme Court
did not need to reach the question of whether to adopt a firefighter’s rule
on the facts of those cases. See Thompson v. FMC Corp., supra, 1271 (‘‘we
need not decide whether this state should adopt the firefighter’s rule’’); Bath
Excavating & Construction Co. v. Wills, supra, 1147 (‘‘we do not believe
that the underlying rationale of the cases from other jurisdictions that have
adopted a fireman’s rule would extend’’ to water department employee, and
therefore ‘‘[w]e express no view on the question of whether Colorado should
judicially adopt a no-duty fireman’s rule’’).
26
I note that the trial court in Levandoski had held that ‘‘the firefighter’s
rule should be extended to nonpremises liability cases, but that the so-
called ‘subsequent negligence’ exception to the rule would also apply. Under
that exception, a police officer is not treated as a licensee when the defendant
engages in negligent acts after the police officer arrives at the scene.’’
Levandoski v. Cone, supra, 267 Conn. 658 n.5. This court did not consider
whether ‘‘subsequent negligence’’ exception to the firefighter’s rule applies,
instead stating more broadly that ‘‘the firefighter’s rule simply does not
apply’’ in nonpremises liability cases. Id.
27
I note, however, that not all courts share this view of the firefighter’s rule.
See Zanghi v. Niagara Frontier Transportation Commission, 85 N.Y.2d
423, 440, 649 N.E.2d 1167, 626 N.Y.S.2d 23 (1995) (‘‘For example, if a police
officer who is simply walking on foot patrol is injured by a flower pot that
fortuitously falls from an apartment window, the officer can recover damages
because nothing in the acts undertaken in the performance of police duties
placed him or her at increased risk for that accident to happen. On the
other hand, if an officer is injured by a suspect who struggles to avoid an
arrest, the rule precludes recovery in tort because the officer is specially
trained and compensated to confront such dangers.’’), superseded in part
by statute as stated in Wadler v. New York, 14 N.Y.3d 192, 194, 925 N.E.2d
875, 899 N.Y.S.2d 73 (2010) (noting that N.Y. Gen. Oblig. Law § 11-106 [McKin-
ney 2017] limits firefighter’s rule to actions against employer or co-
employee); Juhl v. Airington, 936 S.W.2d 640, 647–48 (Tex. 1996) (Gonzalez,
J., concurring) (urging court to adopt firefighter’s rule to bar claims of police
officer against abortion clinic demonstrator, arising from officer’s injuries
sustained while forcibly removing demonstrator from premises).
28
Given the broad manner in which we construe allegations in a complaint
in deciding a motion to strike, I recognize that the rather sparse allegations
in the complaint might also be understood to encompass conduct that
reflects a person needing assistance during a mental health emergency, in
addition to having committed criminal conduct. Accordingly, I reserve fur-
ther judgment on this matter, including the scope of any duty owed, until
discovery proceeds and a factual record is developed.