N.H. Firefighters Worried Some May Hesitate After Ruling

CONCORD, N.H. - Firefighters injured in a slip on an icy sidewalk or from a fall on a decrepit stairway at an emergency scene may sue the property owner for negligence, the state Supreme Court has ruled.

The ruling came in the case of Jason Antosz of Epping, a volunteer firefighter and state representative, against Doree Allain, owner of property at 87 North River Road in Epping after Antosz was hurt on her property. The ruling overturned a decision of a Rockingham County Superior Court judge, who had dismissed the suit.

Attorney Christopher Grant of Portsmouth, who represented Antosz, said his client was employed by FedEx until the serious knee and leg injury permanently disabled him, and he no longer can be an on-call firefighter.

Grant said he was not surprised by the court ruling because of specific language in the statute, known as the "Fireman's Rule."

The law bars an emergency responder from filing suit when injured responding to an emergency. However, the Supreme Court ruled it does not prevent a lawsuit being filed "for other negligent conduct."

For instance, under the top court's ruling, if a firefighter falls through a rotted front porch, breaking his leg while never coming near a basement fire to which he is responding, that could constitute such "negligent conduct" by the property owner.

David Lane, president of the Professional Fire Fighters of New Hampshire, voiced concern that the ruling could have a chilling effect on people needing emergency help, who might hesitate to call 911 in an emergency because they haven't cleared the front sidewalk and fear they will be sued if a firefighter is injured in a fall.

Lane said firefighters are aware of the inherent danger of the job and already are entitled to worker's compensation and a disability pension if they are seriously injured.

But Grant said when the law was enacted in 1993, both the firefighters' union and the insurance industry were proponents.

The Supreme Court in its ruling did not address that Antosz was a volunteer firefighter, not a full-time employee.

Antosz collected worker's compensation and Attorney Barry M. Scotch of Manchester, who represented Allain, said Antosz received a lump sum settlement.

The case will go back to Rockingham County Superior Court, Scotch said, where it will begin again, perhaps with new depositions, alternate dispute resolution or mediation, or be set for trial.

Antosz was injured Jan. 29, 2008, when he went to the Epping property for a fire in a water heater. Scotch said the driveway was steep and a fire truck skidded trying to make it to the top, where residents had sanded and salted.

Antosz walked up the driveway and spoke to a lieutenant, who told him to get a fire extinguisher from a truck parked on the street, according to Scotch.

As Antosz walked back down the driveway, which was covered with packed snow and ice, he fell, the suit alleges.

He sued. Rockingham County Superior Court Judge Kenneth McHugh dismissed the case, citing the "Fireman's Rule."

Allain and her attorney maintained the rule barred a firefighter - volunteer or not - from suing for injuries arising from negligent conduct at an emergency scene.

McHugh said the rule applied in the case, even though Antosz was a volunteer firefighter. He said an ice- and snow-covered driveway at a fire scene was incidental to, and part of, Antosz's normal duties, which also barred him from filing suit.

The Supreme Court sidestepped the issue of whether Antosz could sue because he was a volunteer.

The court ruled the plain language of the Fireman's Rule itself did not bar all negligent claims and specifically states that an emergency responder may bring a cause of action for unrelated negligent conduct occurring during the (firefighter's) official engagement "or for other negligent conduct."

"The term 'other negligent conduct' has no qualification. Thus, we hold that the plain language of the statute permits a fire fighter to pursue causes of action for injuries arising from allegedly negligent conduct that did not create the occasion for his visit, regardless of whether that conduct occurs during or prior to the firefighter's official engagement on the scene."