concurring.
I write only to comment that the case law throughout the United States establishes that most jurisdictions which have the “fireman’s rule” properly recognize a number of exceptions thereto. The trial court on remand is free to, and should, determine whether any of the exceptions apply to this case.
Some of the exceptions are catalogued in the authorities on pages 39 to 42 of respondents’ brief herein, which are attached hereto as Appendix A.
APPENDIX A
VI.
EVEN IF THE FIREMAN’S RULE APPLIES, ITS APPLICATION IS NARROW IN SCOPE AND NOT EQUALLY APPLICABLE TO ALL DEFENDANTS.
The case law is clear, even if adopted, the Fireman’s Rule is not a total bar to all causes of action. In Pincock, supra, as noted in section II, supra, the court did not hold that the application of the Fireman’s Rule was a complete bar, but rather held that as applied to on-premises injuries, the defendant had a duty to refrain from infliction of willful or intentional injury.
In an effort to abrogate or minimize the effects of the Fireman’s Rule, courts have developed numerous exceptions to the rule. In Minnesota, the Fireman’s Rule is inapplicable if the defendant failed to warn the public safety officer of hidden dangers of which the defendant had knowledge and the opportunity to disclose. Shypulski v. Waldorf Paper Products Co., 232 Minn. 394, 45 N.W.2d 549 (1951). Approximately 30 years later, the Minnesota court held in Armstrong v. Mailand, 284 N.W.2d 343 (1979), that public service officers are owed a duty of reasonable care unless they assume the risk in the primary sense. They assume, in the primary sense, all the reasonably apparent risks of fire fighting or police work. They do not, however, assume risks that are hidden or unanticipated.
In Griffiths v. Lovelette Transfer Co., 313 N.W.2d 602 (Minn.1981), the court held firemen and policemen do not generally assume all risks that may occur while they are on duty, but that each situation encountered “may involve some risks which are anticipated and assumed and some which are unanticipated” and therefore unassumed. Id., at 605. The court stated that in each case the facts “must be examined to determine if the particular risk was either hidden from or unanticipated by the officer and therefore not reasonably apparent to the office.” Id.
Finally, the court held that the question of whether a particular risk is reasonably apparent to the plaintiff should be submitted to the jury in cases in which the court does not decide the question as a matter of law. Id. In essence, the court said that, as in a motion for summary judgment, if no material issue of fact is presented the trial court may decide the issue as a matter of law and summary judgment may be granted, but if there is a factual dispute the question should be submitted to the jury. Id.
Most recently, in Lang v. Glusica, 393 N.W.2d 181 (Minn.1986), the Minnesota Supreme Court held that the Fireman’s Rule does not prevent recovery by a fire fighter or a police officer against a defendant who *506intentionally injures the safety officer or causes injury by active negligence after the officer arrives on the scene.
The Illinois Supreme Court declined to extend the Fireman’s Rule to a manufacturer and an installer of a defective product. In Court v. Gizelinski, [Grzelinski], 72 Ill.2d 141 [19 Ill.Dec. 617], 379 N.E.2d 281 (1978), the plaintiff, a fireman, was injured while fighting a fire that had erupted in a vehicle. An explosion ignited gasoline and caused it to shoot up from the car onto the plaintiff. The fireman brought an action against the manufacturer of the gas tank and the used car dealer who had installed the tank in the car. The plaintiff alleged that the tank was defective and that the dealer had installed it in a defective manner. In refusing to allow the Fireman’s Rule to bar recovery against the defendants, the court noted that the Fireman’s Rule was based upon certain policy considerations limiting the liability of landowners. It stated:
Defendants attempt to extend the “Fireman’s Rule” beyond its limited context of Iandowner/occupier liability. The rule cannot be extended to a free-floating proposition that a fireman cannot recover for injuries resulting from risks inherently involved in fire fighting____ In products liability actions such as this, assumption of risk is a bar to recovery only if the plaintiff is aware of the product defect and voluntarily proceeds in disregard to the known danger. In either case, assumption of risk is an affirmative defense interposed against a plaintiff who voluntarily exposes himself to a specific, known risk, not a preclusion of recovery against a plaintiff whose occupation inherently involves general risks of injury.
[19 Ill.Dec. at 617] 379 N.W.2d [N.E.2d] at 284.
In light of the strong public policy favoring recovery in products liability cases, the foreseeability of harm to the plaintiffs, and the generally harsh results of allowing a total defense, the court should not extend the Fireman’s Rule to bar recovery against the manufacturer chain.
In Mahoney v. Carus Chemical Co., [102 N.J. 564], 510 A.2d 4 (N.J.1986), the New Jersey Supreme Court held that the Fireman’s Rule does not protect a supplier guilty of willful, wanton misconduct.
In Scheurer v. Trustees of the Open Bible Church, supra, [175 Ohio St. 163, 192 N.E.2d 38 (1963) ], the court held that an officer could recover only when the defendant’s willful or wanton misconduct, active negligence or violation of a statutory duty caused the officer’s injuries.
In Pallikan v. Mark, supra, [163 Ind. App. 178, 322 N.E.2d 398 (1975)], the Indiana court held that an owner owes a public service officer a duty to abstain from a positive wrongful act. In Georgia, the court in London Iron & Metal Co. v. Abney, supra, [245 Ga. 759, 267 S.E.2d 214 (1980) ], held that an owner owes a duty to warn or protect a public service officer against hidden perils.
In Lipson v. Superior Court, 31 Cal.3d 362 [182 Cal.Rptr. 629], 644 P.2d 822 (1982), the court held that a fire fighter can recover for an owner’s independent act of misrepresentation.
In Cameron v. Abatiell, 127 Vt. 111, 241 A.2d 310 (1968), a landowner was held to the duty to make premises safe for police officer’s purposes.