An Exception to the Firefighter’s Rule in Missouri

A recently released opinion from the Missouri Court of Appeals addresses some interesting points of law involving the Fireman’s Rule. In confronting that issue, the appellate panel in Martin v. Survivair Respirators, Inc., 298 S.W.3d 23 (Mo. Ct. App. 2009) [PDF] affirmed a $27 million verdict and sustained an abnormal use of “but-for” causation.

Regrettably, Martin involves the death of a firefighter. For this particular firefighting squad, each firefighter had a face mask with a valve that expelled the firefighter’s exhaled breath and a PASS alarm. The PASS alarm would screech when it was motionless for twenty seconds. At a fire in St. Louis, Firefighter Morrison, with the above-described equipment, entered a building in which the fire flared up. Morrison became disoriented and eventually non-responsive. After another firefighter, Walters, was unable to rescue Morrison, Walters left the building and informed other firefighters, including Martin, that Morrison was down. Morrison’s PASS alarm failed to activate. Martin entered the building and quickly radioed a personal distress call. Martin activated his PASS alarm in order to be found, but he proved difficult to locate because “the sound bounced off the walls.” Id. Martin was recovered, but not before he died of smoke inhalation. In response to the suit brought against it, the manufacturer, Survivair, claimed, among other things, that the Fireman’s Rule barred recovery, and that there was not a sufficient causal link between the failure of Morrison’s PASS and Martin’s death. Addressing the issue, the panel recited the Fireman’s Rule as follows:

The Fireman’s Rule states that a fireman who is brought in contact with an emergency situation solely by reason of his status as a fireman and who is injured while performing a fireman’s duties may not recover against the person whose ordinary negligence created the emergency.

298 S.W.3d at 32. The panel found that the Fireman’s Rule was inapplicable because the failure of the PASS alarm was not the cause of the fire and not within the “range of anticipated risks” involved with firefighting. It quickly moved to causation. Survivair argued that the failure of Morrison’s PASS was not the cause of Martin’s death. This makes sense. First, Martin was in a place of safety, outside of the burning building, when the PASS malfunctioned. Second, Martin went in the building voluntarily. The court gave weight to testimony that tended to show that because of Morrison’s malfunctioning PASS, Martin was in the building for much longer that he needed to be: Several firefighters testified that had Morrison’s PASS worked, he would have been found much sooner, meaning Martin could have left sooner. (This is in spite of the fact that, when Martin activated his PASS, there was testimony that the sound was bouncing off of the walls making him difficult to find.) Moreover, Martin’s own mask malfunctioned, and he was not wearing it when he was found. Nevertheless, under the approved jury instructions, because the plaintiffs submitted “substantial evidence” that the PASS directly “contributed to [the] cause” of the death of Martin, the case was properly submitted to the jury. Id. There are obviously several things at play here, like a deferential standard of review and terrible facts, but sustaining such a large verdict on speculative testimony and a weak (but approved) standard is troubling.

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