(dissenting).
Appellant proposes application of the fireman’s rule to shield him from liability for his active misconduct. The trial court would not permit this injustice, nor should we. Appellant argues for an application of the rule more broad than permitted by pri- or decisions of the supreme court. The mischief in overextending the rule is compounded by the fact that it is proposed for one of the few remaining police cases where the discarded rule can even be asserted.
The trial court concluded that Officer Lang should have anticipated the risk of injury when he entered the Glusica home. Nevertheless, the trial court advised the jury to decide if Glusica did “actively and physically resist being arrested in the kitchen of his home;” on the jury’s affirmative response, the court entered a judgment consistent with the further finding that Lang was injured as a result of Glusi-ca’s negligence. As the trial court observed, this approach is specifically indicated by the holding in Kaiser v. Northern States Power Co., 353 N.W.2d 899 (Minn.1984).
In Kaiser, firemen entered a hotel where one gas explosion had already occurred. The firemen were injured in a second explosion. The supreme court chose not to examine whether it was evident that the second explosion should have been anticipated:
Even if the finder of fact determines the risk of explosion was reasonably apparent, still the “fireman’s rule” might not bar respondents’ claims if NSP was actively negligent at the scene of the fire and that negligence caused the firefighters’ injuries.
Id. at 905.
The majority would alter the supreme court’s approach by unnecessarily interpreting further court language regarding active misconduct that “materially enhances” the risk. Contrary to the view of the majority here, the Kaiser decision does not speak of misconduct enhancing a risk to some extent beyond what was anticipated. As the trial court concluded, it is evident instead that any material enhancement of a risk by misconduct, whether or not it should have been anticipated, is sufficient to proscribe the actor’s interjection of the fireman’s rule. “Even if the * * * risk * * was necessarily apparent,” the rule may not apply to favor an actively negligent party. Id.
The majority opinion also unduly enlarges the significance of the supreme court’s *902holding in Hannah v. Jensen, 298 N.W.2d 52 (Minn.1980). First, Hannah preceded Kaiser and does not limit the impact of the later decision for those who perpetuate active misconduct. In Hannah a police officer was injured as a result of the active misconduct of a bar patron, and the officer sued the bar owner, not the assaulting patron. Moreover, the Hannah holding rested in part on the public policy view that bar owners should be encouraged to summon police; that policy does not arise in favor of one who is not seeking help and is in fact causing the problem requiring police attention; in addition, the supreme court has already observed that the policy consideration adopted in Hannah was “swept away” by the 1982 legislative nullification of the fireman’s rule for policing cases. See Hannah v. Chmielewski, 323 N.W.2d 781, 784 (Minn.1982).
Because the fireman’s rule is based on the doctrine of primary assumption of risk, it is a theory that goes to the question of whether respondent had a duty to protect appellant from a risk of harm. Id. at 782. This “shield” does not protect those whose active negligence triggers a risk. Kaiser, 353 N.W.2d at 905. To affirm the conclusion of the trial court would serve equally to affirm the judgment of both the supreme court and the legislature. Because I believe this should be our decision, I respectfully dissent.