Goodwin v. Hare

JUSTICE WHITING

delivered the opinion of the Court.

In this case, we decide whether the so-called “fireman’s rule” bars a policewoman’s claim for personal injuries intentionally inflicted by the defendant in resisting a lawful arrest.

The motion for judgment indicates that on October 6, 1990, Stewart A. Goodwin, a Hanover County Deputy Sheriff, attempted to arrest David Keith Hare. While resisting Goodwin’s attempt to arrest him, Hare assaulted Goodwin, physically injuring her. Hare pled guilty to a charge of assault and battery.

Later, Goodwin sued Hare, seeking compensatory and punitive damages. Concluding that the fireman’s rule barred Goodwin’s action, the trial court sustained Hare’s motion for summary judgment on the pleadings. Goodwin appeals.

The fireman’s rule is a common-law doctrine that limits a defendant’s liability for otherwise culpable conduct resulting in injuries and property damage to fire fighters, law enforcement officials, and their employers.1 See Benefiel v. Walker, 244 Va. 488, 490, 422 S.E.2d 773, 774 (1992). The rule is based on an assumption of the usual risks of injury in such employment, “whether caused by negligence or not.” Commonwealth v. Millsaps, 232 Va. 502, 510, 352 S.E.2d 311, 315 (1987) (citing Chesapeake & O. Ry. v. Crouch, 208 Va. 602, 159 S.E.2d 650, cert. denied, 393 U.S. 845 (1968)). In Crouch, we said: “If injured while encountering the ordinary hazards [the fireman’s],duty requires him to confront, it is immaterial that the fire was negligently set.” Id. at 608, 159 S.E.2d at 654.

We have never been presented with the applicability of the fireman’s rule to an intentional tort. We have applied the fireman’s *404rule only in cases arising from ordinary negligence. Millsaps, 232 Va. at 510, 352 S.E.2d at 316 (property damage to state police cruiser); Pearson v. Canada Contracting Co., 232 Va. 177, 184-85, 349 S.E.2d 106, 111 (1986) (personal injuries to fireman and policeman on defendants’ premises); Crouch, 208 Va. at 608-609, 159 S.E.2d at 655 (fire fighter’s death on defendant’s premises). We have said that the application of the assumption of risk doctrine to these public officials is not based upon a spirit of venturesomeness in the face of a known danger; rather, it is based upon the relationship between the public officials and the public from which arises an obligation to accept the usual risks of danger involved in performing their fire fighting and law enforcement duties. Millsaps, 232 Va. at 509-10, 352 S.E.2d at 315; Crouch, 208 Va. at 608, 159 S.E.2d at 654.

One policy rationale underlying the fireman’s rule is that fire fighters and law enforcement officers are compensated for their injuries and damages incurred in the line of duty by workers’ compensation and other benefits. Millsaps, 232 Va. at 509, 352 S.E.2d at 315; Pearson, 232 Va. at 184-85, 349 S.E.2d at 111. Therefore, the financial losses of the employees and their employers are more appropriately borne by the public rather than by the negligent defendants. Id.

There is no reason, however, to shift that burden to the public in the case of injuries or damages intentionally inflicted upon these public officials or their employers.2 Further, there are many reasons to impose that financial burden upon the intentional actor rather than the public. Indeed, we have indicated that the fireman’s rule would not apply if the defendant’s conduct was (1) wilful or wanton, Millsaps, 232 Va. at 510, 352 S.E.2d at 315, or (2) the violation of a statutory duty created for the express benefit of these public officials. Pearson, 232 Va. at 185, 349 S.E.2d at 111.3

*405Accordingly, we hold that the fireman’s rule is inapplicable to intentional torts and the trial court should not have sustained Hare’s motion for summary judgment. Therefore, we will reverse the judgment of the trial court and remand this case.

Reversed and remanded.

After this incident occurred, Code § 8.01-226 was amended to provide that “[w]hile otherwise engaged in the performance of his duties, a law-enforcement officer or firefighter shall be owed a duty of ordinary care.”

Those courts confronted with the defense of the fireman’s rule in cases of an intentional tort have refused to apply the rule. See, e.g. Anton v. Lehpamer, 534 F.Supp 239, 241 (N.D. Ill. 1982); Lipson v. Superior Court, 644 P.2d 822, 826 (Cal. 1982); Lang v. Glusica, 393 N.W.2d 181, 183 (Minn. 1986); Mahoney v. Carus Chemical Co., 510 A.2d 4, 9 (N.J. 1986). This view is shared by treatise authors. 5 Fowler V. Harper et al., The Law of Torts § 27.14, at 267 (2d ed. 1986); W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 61, at 430-32 (5th ed. 1984).

In fact, Code § 18.2-57.1 expressly penalizes assault and battery upon law-enforcement officials.