concurring and dissenting: I concur in the first question result, the answer is “no.” The Firefighter’s Rule applies to products liability claims but only if the product was the cause of the fire.
I differ on the discussion of the second question. The second question is: “Must the hazard or danger that caused injury be an anticipated, normal, or otherwise foreseeable risk of firefighting to justify application of the Firefighter’s Rule?” I read the majority to apply the public policy barring recovery only if the “firefighter is aware of the product defect and voluntarily proceeds in disregard of the known danger.” My disagreement rests on language in Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 694 P.2d 433 (1985), that the majority appears to limit here. I refer to: “A firefighter only assumes hazards which are known and can be reasonably anticipated at the site of the fire and are a part of firefighting.” 236 Kan. at 576.
Based on Calvert’s public policy rationale, we are applying the Firefighter’s Rule to products liability cases if the product was the cause of the fire injuring the firefighter. I glean from Calvert’s teaching that a firefighter is also barred from recovery if the hazard or danger causing the injury could reasonably be anticipated at the site of the fire. Was the risk to McKernan that the gas-filled hood strut would explode in the car fire a reasonably anticipated hazard that was a part of firefighting? If a “yes” answer either survives summary judgment, or is supplied by the factfinder at a later stage of the trial, the Firefighter’s Rule applies.