Hannah v. Jensen

SCOTT, Justice

(dissenting).

I must dissent. The “fireman’s rule,” although invoked in Armstrong v. Mailand, 284 N.W.2d 343 (Minn.1979), is not a favorite principle of the law. See, e. g., W. Prosser, Handbook of the Law of Torts, § 61 (4th ed. 1971); 64 Minn.L.Rev. 878 (1980). As a result, use of the doctrine must be strictly limited and the principle only applied when clearly indicated. I submit that utilization of the “fireman’s rule” is not so indicated in the dram shop context.

Unlike the Armstrong decision, plaintiff’s claim in this case is founded in statute, Minn.Stat. § 340.95 (1976) (the Dram Shop Act). As such, the legislature defines the parameters of the instant cause of action, and our responsibility is to construe this statutorily conferred right in light of the legislative intent. E. g., Minn.Stat. § 645.16 (1978). In so construing the statute, it is clear that the Dram Shop Act contemplates that a remedy be afforded a large class of people. It grants a cause of action to:

“Every husband, wife, child, parent, guardian, employer, or other person who is injured in person or property, or means of support, by any intoxicated person, or by the intoxication of any person, * * against any person who, by illegally selling, bartering or giving intoxicating liquors, caused the intoxication of such person, * * *.”

(Emphasis added.) Nowhere in this legislation is it suggested that police officers are not to be regarded as “other persons” within the meaning of the Act. See Kvanli v. Village of Watson, 272 Minn. 481, 139 N.W.2d 275 (1965). Moreover, as recognized by this court, the Dram Shop Act must be liberally construed “to suppress the mischief and advance the remedy.” Hahn v. City of Ortonville, 238 Minn. 428, 436, 57 N.W.2d 254, 261 (1953). See also Zerby v. Warren, 297 Minn. 134, 210 N.W.2d 58 (1973); Ross v. Ross, 294 Minn. 115, 200 N.W.2d 149 (1972). Thus, in the absence of clear legislative guidance to the contrary, I believe a proper construction of the statute allows a police officer to proceed under the Dram Shop Act.1

*56The decision of the majority, in effect, attributes to the legislature an implicit intention to incorporate the much-maligned “fireman’s rule” into the Dram Shop Act. I believe such a conclusion is mere speculation and is inconsistent with our obligation to liberally construe the subject legislation. See id. Nor am I persuaded that allowing an officer to recover under § 340.95 will deter dram shop owners from calling on police personnel to quell disturbances in their places of business. In that dram shop insurance will most likely cover any damages sustained by a police officer, I find it difficult to believe that bar owners would compromise the physical well-being of their patrons and their establishments by failing to summon appropriate law enforcement authorities.2

In summary, the question of whether police officers should be allowed to pursue a claim under the Dram Shop Act is a matter within the province of the legislature. Since legislative intent does not manifest a desire to preclude officers from recovering under the Act, I believe the so-called “fireman’s rule” is inapplicable to this case.

. Similar reasoning is employed in Comment, Walters v. Sloan : Policemen ‘‘Burned” by Fireman’s Rule, 5 W.St.U.L.Rev. 231 (1978), which discusses the propriety of applying the “fireman’s rule” to preclude police officers from recovering under the California Dram Shop legislation. In criticizing the Walters v. Sloan decision, 20 Cal.3d 199, 571 P.2d 609, 142 Cal.Rptr. 152 (1977), the authors stated that:

The primary propose of the Alcoholic Beverage Control Act, as expressed in Section 23001, is “the protection of the safety, welfare, health, peace and morals of the people of the State * * Because the section re-emphasizes that this exercise of the police power is for the protection “of the State and of all its people," and mandates that “[a]ll provisions * * * shall be liberally construed for the accomplishment of these purposes,” it necessarily follows that the class of persons to be protected should not be undermined by judicial pronouncement. It must be assumed that the legislature knew what it was saying and meant what it said. The word “all,” as used it the statutory phrase “all its people,” does not suddenly jump in its *56meaning to “all its people except policemen” without some judicial calculation. Absent an express statutory exclusion, no other conclusion can be drawn but that policemen should be afforded the intended statutory protection.

Comment, supra, at 247 (emphasis in original) (footnotes omitted).

. Similarly, Prosser reasons that “[t]he argument, occasionally offered, that tort liability might deter landowners from uttering such cries of distress [to policemen and firemen] is surely preposterous rubbish.” W. Prosser, Handbook of the Law of Torts, § 61 at 397,(4th ed. 1971) (footnote omitted).