(specially concurring).
{37} Plaintiffs are municipal fire department firefighters and emergency medics summoned to the scene of an explosion and fire. They were obligated pursuant to their employment to respond to such an emergency circumstance. I join in affirming the dismissal of Plaintiffs’ claim of negligent infliction of emotional distress. No claim for negligent infliction of emotional distress is stated because the fireman’s rule precludes the claim and because, as recognized by Judge Alarid, New Mexico has not extended the cause of action to include the circumstances in this case. With that issue out of the way, the only issue left in this case, other than that of attorney fees, is whether Plaintiffs state a cause of action for intentional infliction of emotional distress. I agree with reversing the dismissal of Plaintiffs’ claim of intentional infliction of emotional distress. I do not, however, agree that the fireman’s rule should be addressed or that, if it is addressed, it should be abandoned.
{38} The fireman’s rule does not cover intentional acts. It does not limit liability for intentional acts. As Judge Castillo states in her concurring opinion, we do not, therefore, have to address the fireman’s rule to reach that issue. However, because Judge Alarid generally disavows the fireman’s rule, I address the rule.
{39} As Judge Alarid points out, the fireman’s rule in New Mexico began with Moreno v. Marrs, 102 N.M. 373, 695 P.2d 1322 (Ct.App.1984). Moreno’s analyses are confusing and difficult to follow and understand in several respects, making it difficult to know for what it ultimately stands. Nevertheless, the following statements in Moreno are clear and should stick as precedent: “[Njegligence in causing a fire is not a basis for liability to firemen injured in fighting the fire. In fact, the view that there is no liability to a fireman for negligence in causing a fire is a statement of the fireman’s rule as it originally existed.” Id. at 377, 695 P.2d at 1326.
{40} Whatever may be an underlying rationale for the rule, simply and properly stated the fireman’s rule is that a firefighter cannot recover under general negligence principles for negligence in causing the fire. See Moody v. Delta Western, Inc., 38 P.3d 1139, 1141 (Alaska 2002). As part of the concept, recovery is permitted under a claim relating to negligent conduct independent of negligence causing the fire, such as, for example, under owner’s and occupier’s liability principles. See Moreno, 102 N.M. at 376, 695 P.2d at 1325. I respectfully do not agree with the various rationales used by Judge Alarid to disavow the fireman’s rule.
{41} I am unpersuaded that comparison with other occupations, such as construction workers, is useful or applicable. Those in the private sector are compensated primarily to produce goods and provide services. The risks that may be inherent in those occupations are secondary to accomplishing the primary goal. Firefighters are paid for the primary purpose of facing risks of fire and other emergency circumstances to protect life and property. Even if some occupations might be somewhat comparable in terms of exposure to risk, the fireman’s rule is based on policy that sets it apart and calls for departure from the general common law principle that one is responsible for an injury caused by a tortfeasor’s want of ordinary care.
{42} As Judge Alarid acknowledges in his opinion at paragraph 17, most jurisdictions in this country, either through court decision or legislation, have a fireman’s rule. See Moody, 38 P.3d at 1140-41. The policy reasons given in court cases vary. The policy reason that makes the most sense is simply that firefighters are paid to put themselves in harm’s way, having the duty to respond to negligently caused fires and other emergency circumstances potentially very harmful to life and property. See id. at 1141-42 (discussing the manner in which “[t]he Firefighter’s Rule reflects sound public policy”). A commensurate policy is that citizens, regardless of their negligence, should be encouraged to summon the aid of firefighters. See Carson v. Headrick, 900 S.W.2d 685, 690 (Tenn.1995) (stating this policy in applying a policeman’s and fireman’s rule to granting immunity to police officers).
{43} The broad language from Yount v. Johnson, 1996-NMCA-046, ¶ 4, 121 N.M. 585, 915 P.2d 341, quoted by Judge Alarid in his opinion at paragraph 14, cannot be ignored; however, Yount does not discuss Moreno or the fireman’s rule. Moreover, Yount’s facts, involving whether to make a special exception for a child’s horseplay, were too dissimilar to those in the present case to apply its broad language to disavowing the fireman’s rule.
{44} Nor am I persuaded that it is useful to draw comparisons between voluntary rescuers and public employees, who are paid and are obligated and expected to face and encounter risk of fire and other emergency circumstances. I think it significant that Govich v. North American Systems, Inc., 112 N.M. 226, 814 P.2d 94 (1991), which was decided after Moreno, discussed the rescuer doctrine without mention of Moreno. I see no basis on which to think that the rescuer doctrine was meant to include the fireman’s rule or that the fireman’s rule is an exception to the rescuer doctrine. The fireman’s rule, if an exception to anything, is an exception to the general rules governing liability for negligence.
{45} Legislation in this arena of law would be appropriate. The place to start is not for this Court to disavow the fireman’s rule and await legislative action. The fireman’s rule has been unaffected by legislative action for more than twenty years. The place to start is with the fireman’s rule in place, and for the Legislature to address whether to change the fireman’s rule in any respect or to override the rule. If the fireman’s rule is to continue to provide immunity for liability for negligent acts, then, hopefully, the Legislature will provide for adequate compensation benefits for injured firefighters commensurate with their risk.
{46} The sole intentional tort liability issue that is before us should be whether a person who intentionally causes a fire should be subject to liability under the recognized cause of action for intentional infliction of emotional distress. I think so. Because of the very limited and strict circumstances under which a person is entitled to recover for intentional infliction of emotional distress, I see no reason to grant immunity to one who intentionally causes a fire to which a firefighter responds.