CopLaw Update

October 2007


Training is the 13th Juror

Fordham v. Oldroyd, 2007 UT 74 (Utah 09/14/2007)...THE SUPREME COURT OF THE STATE OF UTAH

Fordham v. Oldroyd, 131 P.3d 280, 2006 UT App 50 (Utah App. 02/16/2006)...THE UTAH COURT OF APPEALS

Levandoski v. Cone, 267 Conn. 651, 841 A.2d 208 (Conn. 02/24/2004)...THE SUPREME COURT OF THE STATE OF CONNECTICUT

The Professional-Rescuer Doctrine...Under the professional-rescuer doctrine, "a professional rescuer ordinarily cannot recover damages for injuries sustained, while responding to an emergency, from the person who negligently created the crisis."

We hold that Ryan Oldroyd owed no duty to Utah Highway Patrol Trooper Richard Fordham, who was injured while responding to an automobile accident to which Mr. Oldroyd's negligence may have contributed....the rule is that safety officers are employed, trained, and paid to confront dangerous situations . . . and that these officers undertake their profession with knowledge that personal safety is at risk...Trooper Fordham's injuries were within the scope of risks inherent to a highway patrol trooper's duties and derived from the alleged negligence requiring his presence.

In concluding that Mr. Oldroyd owed no duty to Trooper Fordham, we inquire into two matters: (1) whether the injury was derived from the negligence that occasioned the professional rescuer's response, and (2) whether the injury was within the scope of those risks inherent in the professional rescuer's duties. ("[T]he rule['s] . . . most basic formulation is that a fire fighter or police officer may not recover damages from a private party for negligence in the creation of the reason for the safety officer's presence. . . .[T]he rule [we] adopt[] . . . includes negligence in causing the incident requiring a safety officer's presence and those risks inherent in fulfilling the police or fire fighting duties."

...firefighters and police officers have a relationship with the public that calls on them to confront certain hazards as part of their professional responsibilities. ("The very purpose of the fire fighting profession is to confront danger. Fire fighters are hired, trained, and compensated to deal with dangerous situations that are often caused by negligent conduct or acts. '[I]t offends public policy to say that a citizen invites private liability merely because he happens to create a need for those public services.'" It would be naive to believe that fire and police professionals will be called on to draw on their training in meeting only those hazards brought on by prudent acts gone awry. Members of the public, who owing to their negligence find themselves in need of aid, should summon assistance without fear of exposing their assets to compensate their rescuer in the event of injury.

...a person does not owe a duty of care to a professional rescuer for injury that was sustained by the very negligence that occasioned the rescuer's presence and that was within the scope of hazards inherent in the rescuer's duties--is not infected with a rejected strain of assumption of the risk

We therefore hold that Mr. Oldroyd owed no duty to Trooper Fordham because imposing one would offend sound public policy. Because it is not necessary to do more to reach the result in this case, we limit application of the rule to professional rescuers who, like firefighters and police officers, are public employees.

The injuries Trooper Fordham sustained were within the scope of those risks inherent in his duty as a highway patrolman. Mr. Oldroyd rolled his car because he was driving too fast considering the road conditions, and this alleged negligence was what occasioned Trooper Fordham's presence. Another car struck Trooper Fordham while he was retrieving flares from the back of his patrol car, a seemingly usual activity for a highway patrol trooper at an accident scene. Cf. Steelman v. Lind, 634 P.2d 666, 668 (Nev. 1981) (barring recovery to a highway patrol trooper for injuries he sustained while undertaking a rescue because "affirmative action to protect anyone found in a precarious situation upon the highway . . . forms a part of what troopers are hired to do and falls directly under the ordinary course of the duties of the occupation").

...individuals enter at unforeseeable moments, upon unusual parts of the premises, and under circumstances of emergency, where care in preparation cannot reasonably be looked for. A man who climbs in through a basement window in search of a fire or a thief cannot expect an assurance that he will not find a bulldog in the cellar. Regardless of benefit of invitation, there is no reason to suppose that the place has been made safe."). Notably, the consequences for an injured professional rescuer who is a public employee may be less unfair than those that would befall a private party like the plaintiff in Hale because responsible citizens can, and should, see to it that their public officials fairly compensate those firefighters, police officers, and others who are called upon to confront hazards as part of their callings......under appropriate circumstances, a landowner's duty of care might not include warning or otherwise protecting visitors from obvious dangers.'"


The professional rescuer rule "bars those engaged in rescue work as part of their employment from recovering damages for injuries sustained on the job as a result of the negligence of the person rescued.

Proximate cause is a legal limit to liability. A negligent act may at times be part of a chain of events eventually leading to an injury, but still be too remote to warrant holding the negligent party liable for the injury. For proximate cause to exist, the relationship between the negligent act and the injury must be foreseeable. We have held that "foreseeability is an element of proximate cause."Similarly, other courts have concluded that "[f]oreseeability is the cornerstone of proximate cause." In this case, Fordham asks us to conclude that as Oldroyd navigated his car through the snow, he should have foreseen the risk of injury to an assisting trooper from another driver and that Oldroyd should have acted, in part, with that risk in mind. We have said that "foreseeability is required to meet the test of negligence."


The firefighter's rule is not identical to the professional rescuer rule. As the label implies, the professional rescuer rule is not limited in its application to firefighters, but has a broader reach to bar negligence claims by those who take on a professional duty to rescue others irrespective of whether they do so in a public or private capacity. See Maltman v. Sauer, 530 P.2d 254, 257 (Wash. 1975) (presenting both rules and holding that "a professional rescuer, in making a deliberate attempt at saving a life, and under the correct factual setting, is within the intended scope of the 'rescue doctrine'"). We adopt the professional rescuer nomenclature.

Pearson v. Can. Contracting Co., 349 S.E.2d 106, 110 (Va. 1986) ("Policemen and firemen . . . enter premises as of right, under a privilege based on a public purpose. They clearly are not trespassers. Nor can they be classified as licensees or invitees, who enter with consent or invitation of the occupant, as consent and invitation are irrelevant to a policeman's or fireman's privileged entry.").

Fordham v. Oldroyd, 131 P.3d 280, 2006 UT App 50 (Utah App. 02/16/2006)

The historic underpinnings of the doctrine can be found in decisions addressing traditional concepts of premises liability. "Since a policeman or fireman was privileged to enter land pursuant to his public duties and could come on property any place or time, courts classified them as bare licensees and held the only duty owed these public servants was to not wantonly or willfully injure them."

One reason offered for the doctrine is the principle of assumption of risk. Courts relying on this rationale "bar recovery for damages caused to policemen or firefighters from those risks that are inherent in their jobs." ...a highway patrol officer "cannot base a tort claim upon damage caused by the very risk that he is paid to encounter and with which he is trained to cope

 In Levandoski, the Connecticut Supreme Court refused to extend the doctrine beyond premises liability cases, in part, on the grounds that assumption of risk had been eliminated by the Connecticut Legislature's adoption of comparative negligence. As in Oregon and Connecticut, assumption of risk "is no longer recognized in Utah as a total bar to recovery.

"There is at work here a public policy component that strongly opposes the notion that an act of ordinary negligence would expose the actor to liability for injuries sustained in the course of a public servant's performance of necessary, albeit hazardous, public duties. In absence of a legislative expression of contrary policy, a citizen should not have to run the risk of a civil judgment against him for negligent acts that occasion the presence of a firefighter at the scene of a carelessly set fire or of a police officer at a disturbance or unlawful incident resulting from negligent conduct."

To recover for negligence, Fordham must establish that: (1) Oldroyd owed Fordham a duty of care, (2) Oldroyd breached that duty, (3) Oldroyd's breach of the duty was the proximate cause of Fordham's injuries, and (4) Fordham actually suffered injuries or damage. Rather than introducing a new concept into tort law, the professional-rescuer doctrine recognizes a failure of an essential element of a claim for negligence. The rule bars the rescuer's recovery "for the very valid public policy reason that the party or parties who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter was employed to confront."

In Berko v. Freda, 459 A.2d 663 (N.J. 1983), the New Jersey Supreme Court explained that police officers and firefighters have a unique role:

Governmental entities maintain police and fire departments in anticipation of those inevitable physical perils that burden the human condition, whereas most public employment posts are created not to confront dangers that will arise but to perform some other public function that may incidentally involve risk. . . .This fundamental concept rests on the assumption that governmental entities employ firefighters and police officers, at least in part, to deal with the hazards that may result from their taxpayers' own future acts of negligence. Exposing the negligent taxpayer to liability for having summoned the police would impose upon him multiple burdens for that protection.

We agree that police officers are employed for the very purpose of responding to emergency situations and that it would be contrary to concepts of public policy to impose a duty on citizens not to need such services. In addition, "because negligence is at the root of many calls for public safety officers, allowing recovery would compound the growth of litigation," Moody, 38 P.3d at 1142, which we believe is also against public policy. We do not believe it would be desirable for a police officer struck by a drunk driver while issuing a speeding ticket to be able to pursue an action against the speeder simply because he is not made whole by the recovery from the intoxicated driver

Although Oldroyd's accident brought Fordham to the scene, it was the impact from the third-party vehicle that was the direct cause of Fordham's injuries. See Gould, 623 A.2d at 1328 ("The plaintiff responded to the scene to control traffic and was not injured while responding in his professional capacity to the very type of situation for which he was paid and trained to cope, but rather by the subsequent and independent negligence of [a third party]."); Berko, 459 A.2d at 665 ("Case law draws a distinction between injuries stemming from the negligence that brought the firefighters or police to the scene in the first place and injuries suffered from independent causes that may follow."). "Thus[,] a police officer who while placing a ticket on an illegally parked car is struck by a speeding vehicle may maintain action against the speeder but the rule bars recovery against the owner of the parked car for negligent parking." Walters v. Sloan, 571 P.2d 609, 611 n.2 (Cal. 1977).
In reaching the conclusion that the professional-rescuer doctrine bars Fordham's claim against Oldroyd, we emphasize the doctrine's narrowness; it "bars only recovery for the negligence that creates the need for the public safety officer's service." Moody, 38 P.3d at 1141. Therefore, the professional-rescuer doctrine "does not apply to negligent conduct occurring after the police officer or firefighter arrives at the scene or to misconduct other than that which necessitates the officer's presence." Id.; see also 8 Am. Jur. 2d Automobiles & Highway Traffic ' 691 (1997) ("[T]he fireman's rule is not a bar to a police officer's claim for injuries sustained in the course of his response to an accident scene where such injuries are the result of independent acts of negligence which have no connection with the cause of the officer's presence at the scene."); ("Most courts consider that the fireman's rule is of limited scope. That is, while they view the rule as barring recovery for the negligent act which caused public officers to be present in their official capacity, they permit recovery for any unrelated acts of negligence."

Although we prefer to refer to this doctrine as the "professional-rescuer doctrine," other jurisdictions have used numerous terms to describe it, including the "fireman's rule," the "firefighter's rule," and the "public safety officer's rule." Accordingly, in this opinion, we may refer to the doctrine by any of the aforementioned terms, particularly when discussing the approaches taken by other jurisdictions.

Levandoski v. Cone, 267 Conn. 651, 841 A.2d 208 (Conn. 02/24/2004)...THE SUPREME COURT OF THE STATE OF CONNECTICUT

...under the firefighter's rule, the landowner generally owes the firefighter or police officer injured on his property "only the duty not to injure him wilfully or wantonly . . . ." The principal issue in this appeal is whether the firefighter's rule should be extended beyond the scope of premises liability so as to bar a police officer from recovering, based on a claim of ordinary negligence, from a tortfeasor who is neither an owner nor a person in control of the premises....We conclude that the firefighter's rule should not be so extended

The plaintiff, James R. Levandoski, a member of the East Lyme police department, brought this action against the defendant, Douglas Cone, for injuries negligently caused by the defendant while the plaintiff was pursuing the defendant on private property

This court first applied the firefighter's rule in Roberts v. Rosenblatt, 146 Conn. 110, 148 A.2d 142 (1959).  This court stated: "Upon these facts, the court should have instructed the jury as a matter of law that the plaintiff entered upon the premises in the performance of a public duty under a permission created by law and that his status was akin to that of a licensee and the defendants owed him no greater duty than that due a licensee."

In Furstein v. Hill, supra, 218 Conn. 610, we considered whether to extend the firefighter's rule to a police officer. We phrased the issue as "whether a police officer occupies the status of an invitee or of a licensee when, in the course of performing his official duties, he is injured by a defective condition on the property of a landowner." Id., 612. Weread Roberts as "adopt[ing] the principle expressed in the Restatement (Second) of Torts, ' 345 (1), that 'the liability of a possessor of land to one who enters the land only in the exercise of a privilege, for either a public or a private purpose, and irrespective of the possessor's consent, is the same as the liability to a licensee.' 2 Restatement (Second), Torts (1965) ' 345 (1), pp. 226-27." Furstein v. Hill, supra, 615. We concluded that the rule applies to police officers as well as firefighters. Id., 616. In doing so, we gave three reasons for extending the rule to police officers. Id., 616-20. Of the three reasons, the first we characterized as "[t]he most compelling argument"; id., 616; and the second and third we described as having been adopted by other jurisdictions as rationales for the firefighter's rule. Id., 617-20.

The first reason was cast in terms of the similarity of the roles of firefighters and police officers, and the reasonable expectations of landowners regarding those two types of public officers. We stated: "[F]irefighters and police officers often enter property at unforeseeable times and may enter unusual parts of the premises under emergency circumstances. Kreski v. Modern Wholesale Electric Supply Co., [429 Mich. 347, 368, 415 N.W.2d 178 (1987)]; Nared v. School District of Omaha, 191 Neb. 376, 379-80, 215 N.W.2d 115 (1974); 2 Restatement (Second), [supra, ' 345 (1), p. 228, comment (c)]. Such public officers enter the land regardless of the owner's consent; indeed, if the conditions for the exercise of their public duty exist, the owner would not be privileged to exclude them. Shypulski v. Waldorf Paper Products Co., 232 Minn. 394, 396, 45 N.W.2d 549 (1951); Scheurer v. Trustees of the Open Bible Church, 175 Ohio St. 163, 168, 192 N.E.2d 38 (1963); 5 F. Harper, F. James & O. Gray, The Law of Torts (2d Ed. 1986) ' 27.14, p. 260. Recognizing that only invitees may rely on an implied representation of safety, courts have considered it unreasonable to require landowners to undertake the same standard of care for public officers whose presence the landowners can neither predict nor interdict. 'There would be an obvious hardship in holding otherwise, because landowners would then be under compulsion to keep all parts of their premises in a condition perhaps uncalled for by the normal use to which the premises are devoted.' Shypulski v. Waldorf Paper Products Co., supra, 397; see also 2 Restatement (Second), [supra, ' 345 (1), p. 228, comment (c)]." Furstein v. Hill, supra, 218 Conn. 616-17.

The second reason was essentially a reiteration of the doctrine of assumption of the risk. We noted: "Several jurisdictions have explained their adoption of the firefighter's rule by recognizing the inherently hazardous nature of the public safety work performed by firefighters and police officers. Some courts have characterized this recognition as a variant of the doctrine of ' assumption of the risk'; see Krauth v. Geller, 31 N.J. 270, 273-74, 157 A.2d 129 (1960); while others have noted that firefighters and police officers voluntarily choose to enter their professions knowing that they will often confront physically perilous situations created by the negligence of the public they serve." Furstein v. Hill, supra, 218 Conn. 617-18

The third reason rested upon the combination of the avoidance of double taxation upon landowners and the availability of workers' compensation benefits to compensate the injured firefighter or police officer. In this regard, we stated: "[P]ermitting firefighters and police officers to recover in tort for occupational injuries caused by the negligence of particular members of the public whom the officer is called upon to aid would impose a double burden on the taxpayers, who already pay such officers to deal with the hazards that may result from the taxpayers' own future acts of negligence. 'Exposing the negligent taxpayer to liability for having summoned the police would impose upon him multiple burdens for that protection.' Berko v. Freda, [93 N.J. 81, 87-88, 459 A.2d 663 (1983)].

To avoid this potential for double liability, in taxes and in tort, most courts have concluded that the public as a whole, rather than individual landowners, should bear the burden of the foreseeable losses incurred when firefighters or police officers are injured in the performance of their duties. As more than one court has observed, the public should compensate its safety officers both in pay that reflects the hazard of their work and in workers' compensation benefits for injuries suffered when the risks inherent in the occupation materialize." Furstein v. Hill, supra, 218 Conn. 618-19.

We have declined to extend the rule to a case in which the plaintiff firefighters sought to recover damages from the defendant alarm company for injuries and death sustained as a result of a collision caused by the negligent maintenance and failure of brakes on their fire engine while responding to a false alarm transmitted by the defendant. Id., 58586.

We agree with the trial court, and the plaintiff, that it was reasonably foreseeable that the plaintiff could be injured in pursuing the fleeing defendant. The defendant does not contend that he had a right to disregard the plaintiff's order to stop, and to continue to flee. Thus, as the plaintiff aptly argues, "common sense suggests that one who takes off running into the dark to flee from a police officer, who had ordered him to stop, ought to know that the pursuing officer could be injured scrambling through obstacles and over unlit terrain."


 The above are direct excerpts from the case cites.

The reader is encouraged to train and document the training. The reader is also encouraged to read the following cases concerning "Duty to Protect" the tactical response with both dispatch information and tactical training to promote officer safety. Connecticut v Aselton  &  Melanson v West Hartford

Reginald F. Allard Jr.

13thjuror, LLC




Reginald F. Allard, Jr.


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Legal Issues and Use of Force





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