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Pinter v. American Family Mutual Ins. Co.6/30/2000
negligent violation of an ordinance designed to protect the injured party, or negligent manufacture of a dangerous product), public policy does not bar recovery. Based on this precedent, we agree with Pinter that the rule in Hass is a narrow limitation on liability.
. However, we do not agree with Pinter that Hass should be limited to its literal terms. Hass is not an artificial, technical rule that applies only to firefighters. It is an application of the standard public policy analysis that applies to all tort cases in Wisconsin. The circuit court recognized this:
I can't distinguish the facts of this case from the Hass case. This is not an extension of the theory because a man is an EMT. This is the same rule applying in the same circumstances as what has been commonly called the fireman's rule. And I think it could be named other things, and I think it applies to anyone in a similar capacity. . . .
Absent some act that can be considered negligence in itself, the mere fact there was negligence causing the accident cannot give rise to collection for or liability on the part of these defendants towards Mr. Pinter. . . .
. The real issue in this case is whether the public policy analysis in Hass is still valid, and if so, whether it logically extends to Pinter's negligence action.
. We first consider whether the public policy analysis in Hass is still valid. Pinter does not explicitly ask this court to overturn Hass. However, Pinter and the amicus curiae point out that some jurisdictions have recently abolished the "firefighter's rule" by judicial decision or by statute. They also note that the rule has been the subject of criticism and dissent.
. The concerns that have led other jurisdictions to abandon or reject the so-called "firefighter's rule" do not persuade us that the public policy analysis in Hass should be rejected. Many jurisdictions that have criticized or rejected their version of the "firefighter's rule" have noted that the licensee/invitee distinction that was the original basis for the rule has fallen out of the law. See David L. Strauss, Comment, Where There's Smoke There's the Firefighter's Rule: Containing the Conflagration After One Hundred Years, 1992 Wis. L. Rev. 2031, 2034-35; Wills v. Bath Excavating and Constr. Co., 829 P.2d 405, 408-09 (Colo. Ct. App. 1991); Hopkins v. Medeiros, 724 N.E.2d 336, 341 (Mass. App. Ct. 2000); Christensen v. Murphy, 678 P.2d 1210, 1214 (Or. 1984). However, this distinction was never the basis of the public policy analysis in Hass. See Hass, 48 Wis. 2d at 325.
. Similarly, jurisdictions that relied on the assumption of risk doctrine to justify the "firefighter's rule" have abandoned the rule under comparative negligence principles. See Wills, 829 P.2d at 409 (concluding that the firefighter's rule has been abandoned); Christensen, 678 P.2d at 1216-18 (abandoning the firefighter's rule). See also Thomas, 811 P.2d at 824-25 (noting that the widespread abolition of contributory negligence as a total bar to recovery has caused courts to question the firefighter's rule). However, Hass was never premised on the idea that a firefighter's assumption of the risks inherent in his or her profession makes the firefighter's negligence greater than the alleged tortfeasor's as a matter of law. Instead, Hass was based squarely on Wisconsin's traditional public policy analysis in negligence cases.
. The most recent jurisdiction to reject the "firefighter's rule" did so on the grounds that the rule was in conflict with a state statute that specifically granted a right to file suit. Hopkins, 724 N.E.2d at 343. No such statute exists in Wisconsin. In the thirty years since H
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