Richard Dolsen, Jr. v. Veoride Inc
Not yet published in official reporter (Indiana Supreme Court, July 2, 2024) (2024)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The traditional 'firefighter’s rule' (governing premises liability for firefighters as licensees) and the broader 'first-responder’s rule' (barring recovery for negligence causing an emergency) are distinct doctrines. The first-responder’s rule only bars recovery for negligence that created the situation requiring the response, not for injuries stemming from separate, independent acts of negligence on the premises.
Facts:
- In June 2020, a fire broke out at a warehouse in Fort Wayne, Indiana, which was owned by Sweet Real Estate – City Center, LLC and leased by VeoRide, Inc. for storing electric scooters and parts.
- Captain Richard Dolsen of the Fort Wayne Fire Department arrived at the scene and entered the warehouse, which was dark and filled with smoke.
- As Dolsen navigated the dark, smoke-filled building, he extended his arm to press against what he expected to be a wall but contacted nothing, falling through an opening above a basement stairwell.
- Dolsen dropped about six feet and sustained injuries to his neck and right arm, which later required surgery and resulted in a Class 1 impairment, preventing him from returning to full duty.
- The opening Dolsen fell through was an incomplete section of wall above a stairwell, framed with two-by-four wooden studs but lacking drywall, and one stud was missing, leaving a wide gap.
- The fire was started by a scooter battery, and the first floor of the warehouse had no natural light, making it dark unless artificial lights were on.
- Both Sweet and VeoRide knew of the wall opening and the building's inherent darkness when lights were off prior to the fire.
- Neither Sweet nor VeoRide warned the fire department or dispatch about potential hazards, including the wall opening, when they learned of the fire.
Procedural Posture:
- Richard Dolsen, Jr. sued VeoRide, Inc. and Sweet Real Estate – City Center, LLC in the Allen Superior Court (trial court) for negligence, alleging failure to fix a wall opening and failure to warn.
- Both defendants moved for summary judgment, arguing Dolsen's claims were barred by the firefighter's rule.
- The trial court granted both motions for summary judgment, holding that the firefighter's rule barred Dolsen’s claims and that defendants owed no duty.
- Dolsen appealed the trial court's ruling regarding VeoRide to the Indiana Court of Appeals (intermediate appellate court), leaving the judgment for Sweet intact.
- The Indiana Court of Appeals reversed and remanded for further proceedings, holding that the firefighter's rule did not bar Dolsen's claim and that issues of fact remained.
- VeoRide, Inc. then sought transfer to the Indiana Supreme Court.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the first-responder's rule bar a professional firefighter's negligence claim for injuries sustained from a pre-existing structural hazard on premises, where that hazard is unrelated to the cause of the emergency to which the firefighter responded, and if not, do factual issues remain regarding the premises owner's duty under the firefighter's rule?
Opinions:
Majority - Justice Slaughter
No, the first-responder's rule does not bar Dolsen's claim because the alleged negligence concerning the wall opening is distinct from the negligence that caused the fire, and disputed factual issues remain regarding VeoRide's breach of duty to Dolsen as a licensee under the firefighter's rule. The Court clarifies that the 'firefighter’s rule' (from Woodruff v. Bowen, 1893) and the 'first-responder’s rule' (from Babes Showclub, Jaba, Inc. v. Lair, 2009) are separate doctrines. The first-responder's rule only bars recovery for negligence that created the situation requiring the response. Here, Dolsen's injury resulted from a pre-existing condition of the premises (the wall opening), not from the negligent handling of the scooter battery that caused the fire. While smoke from the fire may have contributed to Dolsen's inability to see, the crucial factor is whether the alleged negligent act itself caused the emergency, which in this case it did not. Citing Heck v. Robey, the Court explains that a first responder can recover if the alleged negligence 'ma[de] extrication more dangerous,' even if the emergency was a 'but for' cause of the injury. Since the first-responder's rule does not apply, the Court analyzes Dolsen's claim under the firefighter's rule, which treats firefighters as licensees. Under Woodruff and Burrell v. Meads, a landowner owes a licensee a duty to refrain from 'willfully or wantonly injuring him or acting in a manner to increase his peril' and 'to warn him of any latent danger on the premises of which [the landowner] ha[d] knowledge.' The Court found factual disputes remaining for a jury to resolve, specifically whether VeoRide's failure to fix the wall constituted willful or wanton conduct due to its obvious danger, and whether the wall opening became a 'latent danger' requiring a warning when obscured by smoke and darkness, given VeoRide's knowledge of the condition.
Analysis:
This decision provides critical clarity to Indiana's long-conflated 'fireman's rule' by establishing the 'firefighter's rule' and the 'first-responder's rule' as distinct doctrines. This separation significantly narrows the scope of the first-responder's rule, limiting its application to only the negligence directly causing the initial emergency, thereby allowing first responders greater avenues for recovery for independent acts of negligence. For premises liability claims, the ruling solidifies that firefighters are owed duties as licensees, including warnings for latent dangers and protection from willful/wanton acts, potentially increasing the responsibility of property owners. Future litigation will likely hinge on the 'separate and independent' nature of the alleged negligence and whether a hazard qualifies as 'latent' or 'willful/wanton' under emergency conditions.
