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Tull v. WTF8/30/2005
statutory interpretation analysis resolves the issue, we will briefly address other arguments raised by the parties on appeal. Both parties cite McCaw, supra, in support of their positions. In McCaw, three men, Williams, Morgan, and Smith, became intoxicated while drinking at a bar operated by the defendant. The three men returned to Williams' house, where Morgan and Smith became involved in an argument. Morgan stabbed Smith, and Williams called the police. When the plaintiff, a police officer, arrived at the house in response to Williams' call, Williams assaulted the plaintiff. Id. at 338-339.
The plaintiff brought a dramshop action against the defendant, which argued that the firefighters' rule barred the claim and also that the plaintiff failed to show that the dramshop violation was a proximate cause of his injuries. Id. at 339. This Court held that the firefighters' rule did not bar the claim, explaining:
In the present case, plaintiff was injured after he responded to a report of a stabbing and was attacked by Williams at the scene. Plaintiff's claim against defendant, however, is based on the allegation that defendant served alcohol to Williams when the latter was both underage and visibly intoxicated. In other words, defendant's alleged violation of the dramshop act was entirely independent of the situation that led to plaintiff's presence at the site of the injury. Pursuant to Harris-Fields, because defendant's conduct was not the impetus for plaintiff's arrival at the scene, the fireman's rule does not apply. [Id. at 340.]
Importantly, the Court noted that the case involved the common-law firefighters' rule and, therefore, its applicability is limited in light of the legislative codification of the rule. Id. at 341. The Court noted, however, "that the result that we have reached is consistent with the new legislative enactment." Id.
Defendant argues that the instant case is distinguishable from McCaw because the dramshop defendants in McCaw did not summon the police and the dramshop defendants were not owners or tenants of the property where the injury occurred. Therefore, the plaintiff police officer in McCaw actually could satisfy the requirements of ยง 2967(1)(c). Plaintiff, on the other hand, argues that McCaw shows that dramshop actions were permissible even under the common-law version of the firefighters' rule, because the intoxicated person's misfeasance in itself satisfies the independent negligence exception to the firefighters' rule.
Both of these arguments, however, miss the crucial point that under the statutory firefighters' rule, the independent negligence requirement applies only when a safety officer is seeking relief for ordinary negligence under subsection 1(c). Subsection 1(c)(i) imposes the condition that the negligent person either is not someone whose act or omission resulted in the safety officer's presence at the scene of the injury, or "the person is someone whose act or omission resulted in the firefighter's or police officer's presence at the place where the injury occurred and the action is based on an act by that person that occurred after the firefighter or police officer arrived at the place where the injury occurred." (Emphasis added). Plaintiff relies on McCaw to show that the incident with Rolland was independent of the circumstances that led to defendant's manager calling the police to the bar; defendant relies on McCaw to distinguish the instant case and show that there was no independent negligence. Under subsection 2, however, a dramshop action is a remedy "otherwise provided by statute" and, therefore, plaintiff is not required to satisfy the independent negligence requirements that would apply if plaintiff b
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