# Juhl v. Airington

> Texas Supreme Court · January 31, 1997 · 936 S.W.2d 640

URL: https://www.frixlaw.com/law-library/cases/9773815

## Case

- **Full name:** Maria JUHL, Breck Landry, Martha Arellano, Richard D. Weiss, Betty F. Jameson, Grace Madrid, Barbara Shepard Baldwin F/K/A Barbara Licht Shepard and Shirley Riordan, Petitioners, v. Thomas AIRINGTON, Respondent
- **Court:** Texas Supreme Court
- **Decided:** January 31, 1997
- **Citations:** 936 S.W.2d 640; 1996 WL 354780
- **Precedential status:** Published
- **Opinion:** Concurrence by Gonzalez
- **Judges:** Phillips, Hecht, Cornyn, Enoch, Spector, Owen, Baker, Gonzalez, Abbott
- **Cited by:** 197 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9773815

## How later opinions describe it (automated extraction)

- discussing imposition of this type of liability in other jurisdictions but concluding that even if supreme court were to adopt subsection (b), “defendants’ conduct was simply not the type of highly dangerous, deviant, or anti-social group activity which was likely to cause ser…
- noting that courts should look to the nature of the wrongful act, kind and amount of assistance, relation to the actor; defendant’s presence while the wrongful act was committed, and defendant’s state of mind (citing Restatement (Second) of Torts .§ 876 cmt. d (1977))
- noting that this theory encompasses those “who lend aid or encouragement to the wrongdoer” and remains an “open question” under Texas law
- stating that concert-of- action theory in Restatement section 876 “impos[es] liability on a person for the conduct of another which causes harm” under certain circumstances
- noting that “[b]ecause Airington’s pleadings allege only that defendants were negligent, civil conspiracy is not a theory upon which he could have relied to avoid summary judgment” and subsequently analyzing Airington’s concert-of-action theory

## Opinion text

GONZALEZ, Justice,
joined by ABBOTT, Justice, concurring.
Although I concur in the Court’s opinion and judgment, I write separately because I believe the Court should use this case as a vehicle to adopt the Fireman’s Rule. Additionally, I write to express the view that if the judgment of the court of appeals is allowed to stand, it would have a chilling effect on political speech.
Under the common-law Fireman’s Rule, certain professionals, such as police officers and firefighters, are barred from recovery for injuries caused by ordinary negligence as a result of risks inherent in responding to an *646 emergency. Historically, jurisdictions adopting the Rule applied it only in premises liability cases. It originally barred recovery by firefighters and police officers because they were privileged to enter land pursuant to their public duties and were therefore classified as bare licensees to whom no duty was owed. Pottebaum v. Hinds, 347 N.W.2d 642, 644 (Iowa 1984). Some jurisdictions still rely on this rationale to bar recovery by public safety officials. See, e.g., Furstein v. Hill, 218 Conn. 610 , 590 A.2d 939, 945 (1991) (concluding that police officer could not recover for injuries suffered because of premises defect when responding to residential burglar alarm); Court v. Grzelinski, 72 Ill.2d 141 , 19 Ill.Dec. 617, 621 , 379 N.E.2d 281, 285 (1978) (limiting application of Firemen’s Rule to premises liability cases); Thompson v. Murat Shrine Club, Inc., 639 N.E.2d 1039, 1041 (Ind.Ct.App.1994) (refusing to allow firefighters recovery for injuries suffered when loft collapsed); Gray v. Russell, 853 S.W.2d 928, 929 (Mo.1993) (noting that Rule bars only recovery for personal injuries suffered in emergency situations because of premises defects); Cook v. Demetrakas, 108 R.I. 397 , 275 A.2d 919, 922-23 (1971) (supporting application of Rule on premises liability grounds when police officer was injured on stairway).
Other jurisdictions rely on the assumption-of-risk doctrine to bar recovery to police officers and firefighters for damages suffered as a result of risks inherent in their job duties. See, e.g., Watters v. Sloan, 20 Cal.3d 199 , 142 Cal.Rptr. 152 , 571 P.2d 609, 612 (1977) (holding that police officer summoned to party who suffered injuries while attempting to arrest drunken minor could not recover because he assumed risk); Chinigo v. Geismar Marine, Inc., 512 So.2d 487, 490-92 (La.Ct.App.1987) (concluding that Firemen’s Rule bars only ordinary negligence actions based on assumption of risk and allowing police officer investigating chemical leak to recover when defendant’s conduct was wanton); Wax v. Co-Operative Refinery Ass’n, 154 Neb. 805 , 49 N.W.2d 707, 709-10 (1951) (supporting Rule based on assumption of risk in case in which firefighter was killed in gas explosion); Steelman v. Lind, 97 Nev. 425 , 634 P.2d 666, 667 (1981) (concluding that police officer assumed normal risks inherent in helping motorist and could not recover from motorist who required aid for injuries sustained when another ear hit officer); Moreno v. Marrs, 102 N.M. 373 , 695 P.2d 1322, 1327 (App.1984) (asserting limited assumption-of-risk basis for Rule when firefighter suffered injuries inside burning building); Chesapeake & Ohio Ry. v. Crouch, 208 Va. 602 , 159 S.E.2d 650, 654 , cert. denied, 393 U.S. 845 , 89 S.Ct. 128 , 21 L.Ed.2d 115 (1968) (asserting assumption-of-risk rationale for Rule when firefighter was killed in negligently started forest fire).
Still others rely on public policy considerations to bar recovery. Some of these policy considerations include a form of assumption of risk. See, e.g., Grable v. Varela, 115 Ariz. 222 , 564 P.2d 911, 912 (App.1977) (refusing, based on public policy, to allow firefighter to recover against one whose negligence caused fire in which he was injured); Waggoner v. Troutman Oil Co., 320 Ark. 56 , 894 S.W.2d 913, 915 (1995) (adopting Fireman’s Rule on public policy grounds and holding that firefighter could not recover from individuals who negligently started kerosene storage tank fire); Carpenter v. O’Day, 562 A.2d 595, 601 (Del.Super.Ct.1988) (applying Rule, based on public policy rationale, to bar recovery for firefighter’s injuries sustained while fighting fire in restaurant); Bycom Corp. v. White, 187 Ga.App. 759 , 371 S.E.2d 233, 235 (1988) (holding that injured firefighter could not recover, based on public policy considerations, against corporation whose agents allegedly ruptured natural gas pipeline); Thomas v. Pang, 72 Haw. 191 , 811 P.2d 821, 823 (1991) (relying on public policy grounds to deny firefighter recovery for injuries from one who negligently maintained building); Winn v. Frasher, 116 Idaho 500 , 777 P.2d 722, 724-25 (1989) (denying recovery to police officer, based on public policy, for injuries resulting from exposure to chemicals); Pottebaum, 347 N.W.2d at 647-48 (concluding that police officers could not recover, based on public policy, for injuries sustained when an intoxicated patron assaulted them when they attempted to stop disturbance at tavern); Calvert v. Garvey Elevators, Inc., 236 Kan. 570 , 694 P.2d 433, 438 (1985) (reaf *647 firming Kansas’s support of Rule on public policy grounds when firefighter was injured by ammonia leak); Hawkins v. Sunmark Indus., Inc., 727 S.W.2d 397, 400 (Ky.1986) (upholding Rule on policy grounds when firefighter was injured in gasoline explosion); Flowers v. Rock Creek Terrace, 308 Md. 432 , 520 A2d 361, 368 (1987) (refusing recovery on public policy grounds for firefighter who fell twelve stories down elevator shaft while fighting fire); Kreski v. Modem Wholesale Elec. Supply Co., 429 Mich. 347 , 415 N.W.2d 178,186 (1987) (adopting Rule on public policy grounds and not allowing firefighter’s widow to recover against building owner and power company that allegedly caused fire); England v. Tasker, 129 N.H. 467 , 529 A2d 938, 941 (1987) (refusing to allow recovery, based on public policy, to police officer injured while attempting to pull passenger from wrecked automobile); Zanghi v. Niagara Frontier Trans. Comm’n, 85 N.Y.2d 423 , 626 N.Y.S.2d 23, 27-28 , 649 N.E.2d 1167, 1171-72 (1995) (concluding that firefighters and police officers could not recover for personal injuries suffered because they assumed risk and that recovery would violate public policy); Scheurer v. Trustees of Open Bible Church, 175 Ohio St. 163 , 192 N.E.2d 38 , 43 (1963) (upholding Rule on public policy grounds when police officer was injured when he fell into hole during investigation); Carson v. Headrick, 900 S.W.2d 685, 690-91 (Tenn.1995) (holding that police officer could not recover, based on public policy, for injuries sustained when shot by estranged husband of woman he escorted home to pick up belongings); Hauboldt v. Union Carbide Corp., 160 Wis.2d 662 , 467 N.W.2d 508, 511-12 (1991) (limiting application of Rule to negligence cases based on policy considerations). 1
I recognize that the Fireman’s Rule has been employed in Texas only in premises liability cases. See, e.g., Peters v. Detsco, Inc., 820 S.W.2d 38, 40 (TexApp. — Houston [14th Disk] 1991, writ denied). The court of appeals used this rationale in denying the Rule’s application to this case. 883 S.W.2d 286, 291 . However, such a narrow interpretation of the Fireman’s Rule is not consistent with the trend in other jurisdictions to extend the Rule beyond premises liability based on public policy.
Police officers and firefighters, by the very nature of their duties, encounter hazardous situations on a regular basis. These hazardous situations often lead to officers being injured in the line of duty. Such injuries are often caused by negligent acts. When officers are called to a scene and are injured as a result of the very situation that required their presence, they should not be allowed to recover from an individual for their personal injuries. Citizens should in no way be “discouraged from relying on those public employees who have been specially trained and paid to deal with these hazards.” Potteb-aum, 347 N.W.2d at 645 . In addition, the risk and cost of injuries to officers are more effectively spread by passing them on to the public as a whole through the government entities that employ them rather than by making an individual pay for the injury. For example, police officers and firefighters can recover for injuries sustained during employment under the Workers’ Compensation Act. Tex.Lab.Code §§ 401.001^418.002 (Supp. 1996). Thus, public policy justifies the adoption of the Fireman’s Rule and calls for it to be applied more broadly than the premises liability context.
Applying this rule to Barbara Baldwin, Airington cannot recover. 2 Airington was *648 called to the abortion clinic in his official capacity as a police officer to remove Baldwin and other protestors who were blocking the clinic’s entrance. While performing his duties by removing a protestor who refused to leave the premises, he injured his back. Under the Fireman’s Rule, Airington cannot recover because his injuries were caused by the very conduct that initially required his presence — demonstrators refusing to leave the premises voluntarily. While the Rule does not normally apply in cases in which an officer is injured by intentional, malicious, or reckless conduct by a citizen, see, e.g., Carson, 900 S.W.2d at 690-91 , that exception does not apply in this case. Airington sued the protestors for negligence, not intentional or reckless acts. Thus, the Fireman’s Rule applies to his cause of action.
Additionally, I fear that allowing Airington to recover in this case would impair the protestors’ rights to political speech. Throughout history, state actors have attempted to limit individual free speech rights by a variety of means. However, many types of political speech have been protected under the First Amendment. See, e.g., Texas v. Johnson, 491 U.S. 397, 404-06 , 109 S.Ct. 2633, 2539-41 , 105 L.Ed.2d 342 (1989) (protecting citizen’s right to bum United States flag at political convention); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 514 , 89 S.Ct. 733, 740 , 21 L.Ed.2d 731 (1969) (allowing students to wear black arm-bands to protest Vietnam War); Brown v. Louisiana, 383 U.S. 131, 142-43 , 86 S.Ct. 719, 724-25 , 15 L.Ed.2d 637 (1966) (concluding that silent sit-in to protest segregationist policies was protected political speech); Stromberg v. California, 283 U.S. 359, 369-70 , 51 S.Ct. 532, 535-36 , 75 L.Ed. 1117 (1931) (permitting flying of red flag as a political statement).
For example, in Brown , five African-Americans staged a silent sit-in in a public library to protest the facility’s segregationist policies. When they refused to leave the premises, the sheriff and his deputies arrested them. The United States Supreme Court held that the Louisiana “breach of the peace” law under which the protestors were arrested violated the protestors’ right to free speech. Brown, 383 U.S. at 142-43 , 86 S.Ct. at 724-25 . The Court stated that “[freedom of speech and assembly] rights are not confined to verbal expression. They embrace appropriate types of action which certainly include the right in a peaceable and orderly manner to protest by silent and reproachful presence_” Id. at 142 , 86 S.Ct. at 724 . One can imagine the chilling effect on the protestors’ speech in Brown if, after winning their constitutional challenge, they were then sued by the arresting officers for negligence. Such an action would comprise a back-door attack by state actors on a constitutional right — the right to political speech.
Likewise, if this Court were to allow Air-ington to recover against the protestors in this case, we would provide yet another impairment to political speech. The protestors in this case, like those in Brown , practiced eivil disobedience to an order to leave the premises by going limp when asked to leave. There is little doubt that allowing a peace officer to sue such a protestor for personal injuries resulting from having to remove the protestor will have a chilling effect on a constitutionally protected right. I do not believe we can allow Airington to prevail and still protect the protestors’ right to free speech and peaceable assembly. Political speech is too important a constitutional right to be undermined by a case like this one.
For these additional reasons, I concur in the Court’s judgment that Airington is barred from recovery in this case.
. At least four states have abolished the Fireman’s Rule. See, e.g., Fla.Stat. ch. 112.182 (Supp. 1996); Minn.Stat. § 604.06 (Supp.1996); NJ.Stat.Ann. § 2A:62A-21 (Supp.1996); Christensen v. Murphy, 296 Or. 610 , 678 P.2d 1210, 1218 (1984). For other sources discussing the background and application of the Fireman’s Rule, see generally Caner, Annotation, Application of “Fireman’s Rule” to Preclude Recovery by Peace Officer for Injuries Inflicted by Defendant in Resisting Arrest, 25 A.L.R.5th 97 (1994), and Tin-ney, Annotation, Liability of Owner or Occupant of Premises to Police Officer Coming Thereon in Discharge of Officer’s Duty, 30 A.L.R.4& 81 (1984).
. Only one defendant, Barbara Baldwin, raised the Fireman's Rule as a defense in her motion for summary judgment. Therefore, all other defendants waived relief on this basis. See Tex. R.Civ.P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979) (holding that movant’s grounds for summary judgment must be in writing and before trial *648 court at hearing). Nevertheless, it is important to address this issue for guidance in future cases.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9773815. Public record. Not legal advice.