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Farmer v. B & G Food Enterprises6/6/2002
t of the early cases involving fire fighters, the court analyzed the issue of liability on the basis of the traditional status categories of entrants upon the property of another-invitee, licensee, or trespasser. The Gibson court determined that the plaintiff fireman was a licensee, and, therefore, the property owner only owed him a duty to avoid inflicting wilful, wanton, or intentional injuries. Kreski v. Modern Wholesale Elec. Supply Co., 415 N.W.2d 178, 183 (Mich. 1987) (citing Gibson v. Leonard, 32 N.E. 182 (Ill. 1892)).
. The Restatement (Second) of Torts treats a public officer entering a part of the land open to the public in the performance of public duty to hold the status of an invitee. Restatement (Second) of Torts § 345 & comments (1965). (Note that § 345(2) would be applicable to the instant case, because the policeman suffered harm "because of a condition of a part of the land held open to the public.") Thus, Farmer, under the Restatement (Second) of Torts, would enjoy invitee status, which under Mississippi premises law raises the duty of Taco Bell to Farmer to that of reasonable care. Clark v. Moore Mem. United Methodist Church, 538 So. 2d 760, 764 (Miss. 1989) ("The duty owed by an invitor to an invitee is to exercise reasonable care to keep the premises in a reasonably safe condition and, if the invitor knows of, or by the exercise of reasonable care should have known of, a dangerous condition, which is not readily apparent to the invitee, the invitor is under a duty to warn the invitee of such condition.").
. Twenty years after the Restatement was written, Professor Prosser stated that Restatement § 345(2) is followed only "by a small number of courts." Regardless, Prosser expressed some approval for it. See Prosser & Keeton, The Law of Torts § 61, at 432 (1984). Most states that have addressed the issue continue to treat police officers and firefighters as licensees either expressly or as a practical effect by basing the doctrine on public policy.
B. Firefighter's Rule as Public Policy
. The inherent limitations in accurately fitting firefighters into the traditional landowner liability context have caused courts to look beyond the concept of the entrant's status as a rationale for the firefighter's rule, and instead adopt the rule on the basis of assumption of risk and public policy. See Kreski, 415 N.W.2d at 184. Many states, including Mississippi, have abandoned or merged the doctrine of assumption of risk into other negligence schemes. Despite this trend, nearly all of those states choosing to abandon the assumption of risk doctrine retained the firefighter's rule, instead relying on public policy as the sole basis for reaffirming the utility and viability of the rule. See Carson v. Headrick, 900 S.W.2d 685, 689-90 (Tenn. 1995) (citing decisions in California, Florida, Hawaii, Idaho, Kansas, Kentucky, Nevada, New Hampshire, New Jersey, Rhode Island, Wisconsin, Arizona, Georgia, Indiana, and New Mexico).
. The rationale for adopting the firefighter's rule as public policy is tied to the nature of the public service police officers and firefighters provide as public servants.
The policy arguments for adopting a fireman's rule stem from the nature of the service provided by firefighters and police officers, as well as the relationship between these safety officers and the public they are employed to protect.
It is beyond peradventure that the maintenance of organized society requires the presence and protection of firefighters and police officers. The fact is that situations requiring their presence are as inevitable as anything in life can be. It is apparent that these officers are employed f
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