dissenting. The majority has chosen to adopt the century-old Fireman’s Rule and to premise its adoption on the broadest possible underpinning, that of public policy. At first blush, the Fireman’s Rule appears to be well founded in logic, reason, and sound policy considerations. Certainly, we are falling in line with the vast majority of jurisdictions in adopting this Rule. But numbers do not always equate with right. For me, the ultimate question is whether there is presently a valid, substantial public policy purpose to be accomplished by treating firemen and policemen differently than many other public and private workers whose jobs entail a degree of risk of injury. I think not and I find the rationale set forth in a case which abolished the rule and the dissenting opinions in two other cases to present more reasoned analyses and conclusions regarding this rule.
The rationale that a fireman, by virtue of his employment is paid to encounter risks created by the negligence of others, and is therefore owed no duty by such tortfeasors, is simplistic and patently unfair to these public servants. The dissent in Walters v. Sloan, 142 Cal. Rptr. 152 (1977), which calls the Fireman’s rule “outmoded” and of ancient vintage, addressed this rationale:
Proponents of the fireman’s rule argue most frequently that it is the fireman’s job to extinguish fires and the policeman’s job to make arrests. They conclude that a fireman or a policeman can base no tort claim upon damage caused by the very risk that he is paid to encounter and with which he is trained to cope. The argument, in essence, is that the fireman or policeman in accepting the salary and fringe benefits offered for his job, assumes all normal risks inherent in his employment as a matter of law, and thus may not recover from one who negligently creates such a risk.
The fallacy in this argument is simply that i.t proves too much. Under this analysis, an employee would roufinely be barred from bringing a tort action whenever an injury he suffers at the hands of a negligent tortfeasor could be characterized as a normal, inherent risk of his employment. Yet as noted above, past California cases have regularly permitted highway workers — whose jobs obviously subject them to the “inherent risk” of being injured by a negligent driver — to recover for damages inflicted by such third party negligence . . . and have permitted construction workers — whose employment poses numerous risks of injury at the hands of another — to recover tort damages for work-related injuries so long as the negligent tortfeasor is not their employer. . . .
As these and countless other cases demonstrate, while policemen and firemen regularly face substantial hazards in the course of their employment and are, theoretically at least, compensated for such risks, a host of other employees — highway repairmen, high rise construction workers, utility repairmen and the like — frequently encounter comparable risks in performing their jobs and, again theoretically, also receive compensation for such risks. California decisions have never perceived such theoretical compensation as a sufficient basis for barring the employee’s cause of action against a negligent tortfeasor. (Cites omitted.)
In Christensen v. Murphy, 678 P.2d 1210 (Or. 1984), the Supreme Court of Oregon abolished the Rule because its implied assumption of risk underpinnings had been abolished by Oregon statute. In determining whether any other theory would support the Rule the court stated:
The most often cited policy considerations include: 1) To avoid placing too heavy a burden on premises owners to keep their premises safe from the unpredictable entrance of fire fighters; 2) To spread the risk of fire fighters’ injuries to the public through workers’ compensation, salary and fringe benefits; 3) To encourage the public to call for professional help and not rely on self-help in emergency situations; 4) To avoid increased litigation ....
For example, policy consideration “1” above focuses on the fire fighter as a class from whom the premises owner needs immunity (akin to a licensee or trespasser), not on the reasonableness of the activity of the premises owner in the circumstances. Thus, it can be seen that the unusual hazard or hidden danger exception to the “fireman’s rule” (allowing the fire fighter to recover under the old premises liability or the new foreseeability tests), discloses not a governmental policy concerning conduct of a landowner but a veiled form of assumption of risk analysis — usually characterized in language indicating that the fire fighter “* * * does not assume such risks” ....
The remaining policy arguments are equally flawed. The weakness in the loss-spreading rationale, “2” above, is obvious. By denying a public safety officer recovery from a negligent tortfeasor, the officer is not directed to recover his damages from the general public; rather the officer is totally precluded from recovering these damages from anyone . . . Under the “fireman’s rule” the injured public safety officer must bear a loss which other public employees are not required to bear . . .
As for “3” above, Dean Prosser criticized as “preposterous rubbish” the argument offered to defend the “fireman’s rule” that tort liability might deter landowners from uttering cries of distress in emergency situations. . . We agree. Furthermore, we have previously rejected “4” above, avoidance of increased litigation, as a ground for denying substantive liability. (Cites omitted.)
In Berko v. Freda, 459 A.2d 663 (N.J. 1983), where the Supreme Court of New Jersey extended the firemen’s rule to a police officer, the dissent effectively dealt with the issue of disparate treatment of policemen and firemen as opposed to other governmental employees:
The majority attempts to distinguish police officers and fire fighters who are paid to “confront danger” from other kinds of public employees on the ground that the latter are merely paid “to perform some other public function^] that may incidentally involve risk....” This asserted distinction merely disguises the fact there are more similarities than differences between police officers and fire fighters and a host of other public employees. Police officers on traffic patrol may be exposed to risks entirely comparable to highway workers doing road work. Many public employees — police officer and sanitation worker alike — confront dangers on the job. Conversely, both classes of employees also confront “ordinary” risks not involving unusual danger. Because law enforcement in some instances entails greater risks, police officers should not be deemed to have foresaken the right to seek compensation for injury resulting from such risks — unless, as the majority seems to believe, the monetary compensation that police officers receive is commensurate with the extraordinary risks of their jobs... But, no empirical or rhetorical support is marshalled to bolster this assumption. And even if police officers and fire fighters are presumed to be adequately compensated for the risks of their work, the majority does not explain why other governmental employees, who must also be presumed to receive adequate compensation for their work, should not therefore be prohibited, as are police officers and fire fighters, from recovering from negligent third parties for injuries attributable to the risks normally inherent in their employment. . .
Police officers and fire fighters should not be placed beyond the pale of a judicial philosophy that searches for just and fair results. Our jurisprudence has long established that individuals who voluntarily attempt a rescue in response to a negligently created danger have a valid cause of action under the rescuer’s rule, which recognizes that danger invites rescue. .. I am at a loss to understand why this judicial philosophy is repudiated in a case such as this, where the rescuer is not simply a good Samaritan but a professional, who is not simply “invited” to rescue but is expected to rescue. In this context, the foreseeability of rescue, which is the predicate for imposing a duty of care, moves from a reasonable anticipation to virtual certainty. If anything, the strength of the duty of care owed to such a rescuer by the negligent party should increase with the certainty of the foreseeability that rescue will be a consequence of the negligence. . . .
Further, I have encountered at least a superficially persuasive argument for adopting the Rule in Riley, Fireman’s Rule, 71 Cal. L. Rev. 239 (1983). Using the policies behind insurance and workers compensation as a basis, the article presents the public-as-employer analogy. The analogy goes something like this. Fire companies are created by the public to take care of certain hazards, and there is no need for their services until some danger arises. The fire station is not their true workplace; there is no “workplace” for such public employees except under hazardous conditions. Thus, by this analogy, any premises with a fire becomes the “workplace” and workers compensation is the appropriate and exclusive remedy. This analogy reads well, but it also fails to address the similarities between firemen and other public workers and does not provide at all a reason for disparate treatment.
The Fireman’s Rule cannot be supported on sound policy grounds, not here and not now. In Arkansas, a comparative fault state, we do not need and are not warranted in now adopting this antiquated common law rule:
Comparative fault is beginning to have an impact on the ‘fireman’s rule,’ which in its original form stated that a landowner owes no duty to a fireman to keep the premises in a safe condition... Now that assumption of risk and the licensee/invitee distinction underpinning the rule have been limited or abolished, the fireman’s rule still survives in most jurisdictions that have considered the question but has become more limited in scope. . . Schwartz, Comparative Negligence § 9-4(c)(l) (3d. 1994).
Finally, it seems to me that we should conduct a more studied analysis of the policy considerations before adopting this Rule. Such a review would of necessity require some knowledge of the frequency and variety of on-the-job injuries to firemen as compared to other public employees, and we do not have this information before us.
We have fared very well without the Fireman’s Rule for the past one hundred years and I would not adopt it now.
I respectfully dissent.