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*********************************************** 
ROBERT SEPEGA v. LAWRENCE R. DELAURA

(SC 19683)

Rogers, C. J., and Palmer, Eveleigh, McDonald,

Espinosa, Robinson and Vertefeuille, Js.*

Syllabus

The plaintiff, a municipal police officer, brought a negligence action seeking

to recover damages for certain personal injuries that he sustained while

attempting to force entry into the defendant’s home. Specifically, the

plaintiff alleged that the defendant had entered the home in violation

of a protective order, locked himself inside, and threatened to cause

harm to himself. The plaintiff further alleged that, through these acts, the

defendant had negligently created conditions that required the plaintiff

to forcibly enter the home. The defendant filed a motion to strike the

complaint pursuant to the common-law firefighter’s rule, which generally

bars firefighters and police officers who enter private property in the

exercise of their duties from bringing civil actions against the landowner

for injuries caused by defective conditions on the property. The trial

court granted the defendant’s motion, concluding that the plaintiff’s

claim was barred by the firefighter’s rule. The trial court subsequently

rendered judgment for the defendant, from which the plaintiff appealed.

Held that the trial court improperly granted the defendant’s motion to

strike the plaintiff’s claim of ordinary negligence, this court having

concluded that the firefighter’s rule should not be extended beyond

claims alleging premises liability: the various public policy considerations underlying the firefighter’s rule did not support the expansion of

that rule to claims of ordinary negligence in light of this state’s statutory

(§ 52-572h [l]) abolition of the assumption of risk doctrine, the fact that

other public sector employees may pursue recovery in similar cases, and

the absence of any evidence of a chilling effect on calls for emergency

assistance; moreover, the defendant’s assertion that Kaminski v. Fairfield (216 Conn. 29) supports barring negligence claims by public safety

officers was foreclosed by this court’s subsequent decision in Levandoski v. Cone (267 Conn. 651), which explicitly declined to extend the

firefighter’s rule beyond the context of premises liability.

(Three justices concurring separately in one opinion)

Argued February 22—officially released September 26, 2017

Procedural History

Action to recover damages for the defendant’s alleged

negligence, brought to the Superior Court in the judicial

district of Middlesex, where the defendant filed a

motion to strike the plaintiff’s complaint; thereafter,

the court, Aurigemma, J., granted a motion to intervene

filed by the town of Clinton; subsequently, the court,

Vitale, J., granted the motion to strike, and the court,

Aurigemma, J., granted the defendant’s motion for

judgment and rendered judgment thereon, from which

the plaintiff appealed. Reversed; further proceedings.

Gerald S. Sack, with whom, on the brief, was Jonathan A. Cantor, for the appellant (plaintiff).

Keith S. McCabe, for the appellee (defendant).
Opinion

EVELEIGH, J. The common-law firefighter’s rule provides, in general terms, that a firefighter or police officer

who enters private property in the exercise of his or

her duties generally cannot bring a civil action against

the property owner for injuries sustained as the result

of a defect in the premises. See Levandoski v. Cone,

267 Conn. 651, 653–54, 841 A.2d 208 (2004). The principal issue in this appeal is whether the firefighter’s rule

should be extended beyond the scope of premises liability so as to bar a police officer from recovering, under

a theory of ordinary negligence, from a homeowner

who is also an alleged active tortfeasor. The plaintiff,

Robert Sepega,1 a municipal police officer, appeals from

the judgment of the trial court in favor of the defendant,

Lawrence R. DeLaura, following the granting of a

motion to strike. In granting that motion, the trial court

concluded that the firefighter’s rule barred the plaintiff’s

sole claim, which sounded in ordinary negligence. We

conclude that the firefighter’s rule should not be

extended beyond claims of premises liability and,

accordingly, reverse the judgment of the trial court in

favor of the defendant and remand the case to the trial

court for further proceedings.

The following facts, as alleged by the plaintiff in his

amended complaint, and procedural history are relevant to the present appeal. The plaintiff, while in the

course of his employment as a municipal police officer,

responded to a call at a premises owned by the defendant. The call indicated that the defendant had locked

himself inside his home and was threatening to harm

himself. After arriving at the premises and making

numerous requests of the defendant for entry into the

home, the plaintiff ultimately attempted to kick in a

door and, in doing so, sustained serious injuries. The

plaintiff alleged that the resulting damages were caused

by the negligence and carelessness of the defendant.

Specifically, the plaintiff alleged that the defendant had

negligently ‘‘created conditions which mandated that

the plaintiff, as a police officer, forcibly enter the premises in order to prevent harm to the defendant or to

others.’’ In support of this claim, the plaintiff alleged

that the defendant ‘‘had violated a protective order by

entering and remaining in the premises,’’ was ‘‘threatening to harm himself,’’ and was ‘‘uncooperative with

police requests to come to the door and speak to them.’’

We note that the complaint does not make any allegations against the defendant relating to dangerous or

defective conditions on the premises.

The defendant filed a motion to strike the amended

complaint, and the plaintiff objected. On September 15,

2015, the trial court issued a memorandum of decision

denying the defendant’s motion to strike. Thereafter,

the defendant filed a motion for articulation that the

court, sua sponte, recast as a motion for reargument
and reconsideration. After hearing argument from the

parties, the trial court vacated its original decision and

issued a new memorandum of decision granting the

defendant’s motion to strike on October 29, 2015. The

defendant then filed a motion for judgment, which the

trial court granted. This appeal followed.2

‘‘We begin by setting out the well established standard

of review in an appeal from the granting of a motion

to strike. Because a motion to strike challenges the legal

sufficiency of a pleading and, consequently, requires

no factual findings by the trial court, our review of the

court’s ruling . . . is plenary. . . . We take the facts

to be those alleged in the complaint that has been

stricken and we construe the complaint in the manner

most favorable to sustaining its legal sufficiency. . . .

Thus, [i]f facts provable in the complaint would support

a cause of action, the motion to strike must be denied.

. . . Moreover, we note that [w]hat is necessarily

implied [in an allegation] need not be expressly alleged.

. . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s

motion to strike, all well-pleaded facts and those facts

necessarily implied from the allegations are taken as

admitted. . . . Indeed, pleadings must be construed

broadly and realistically, rather than narrowly and technically.’’ (Internal quotation marks omitted.) Geysen v.

Securitas Security Services USA, Inc., 322 Conn. 385,

398, 142 A.3d 227 (2016); see also Coppola Construction

Co. v. Hoffman Enterprises Ltd. Partnership, 309

Conn. 342, 350, 71 A.3d 480 (2013). ‘‘The issue of

whether to recognize a common-law cause of action in

negligence is a matter of policy for the court to determine based on the changing attitudes and needs of

society.’’ Craig v. Driscoll, 262 Conn. 312, 339, 813 A.2d

1003 (2003). We note that, because the firefighter’s rule

is rooted in the common law, it ‘‘is subject to both

legislative and judicial modification.’’ Ascuitto v. Farricielli, 244 Conn. 692, 698, 711 A.2d 708 (1998). We also

note that, ‘‘because the firefighter’s rule is an exception

to the general rule of tort liability that, as between an

innocent party and a negligent party, any loss should be

borne by the negligent party, the burden of persuasion

is on the party who seeks to extend the exception

beyond its traditional boundaries.’’ Levandoski v. Cone,

supra, 267 Conn. 661.

On appeal to this court, the plaintiff asserts that the

trial court incorrectly granted the motion to strike

because his claim is not barred by the firefighter’s rule.

Specifically, the plaintiff asserts that his claim is controlled by this court’s decision in Levandoski v. Cone,

supra, 267 Conn. 654, in which the firefighter’s rule was

limited to claims of premises liability. In response, the

defendant claims that the trial court correctly granted

his motion to strike because this case is distinguishable

from Levandoski. Instead, the defendant asserts that

Kaminski v. Fairfield, 216 Conn. 29, 578 A.2d 1098
(1990), governs the plaintiff’s claim. We agree with

the plaintiff.

In Kaminski, this court considered whether parents

could be held liable for injuries that a police officer

received when accompanying mental health workers

to a home in response to a request for mental health

assistance to control the behavior of an adult son. Id.,

30. The injured police officer relied on the following

two theories of liability in support of his claim: (1) the

parents owed him a duty of care pursuant to § 319 of

the Restatement (Second) of Torts because, in permitting their adult schizophrenic son to live with them, they

undertook a custodial relationship that encompassed

responsibility for controlling his behavior; and (2) the

parents were negligent in failing to warn the police

officer of the son’s dangerous and violent propensities,

and that he possessed several axes. Id., 33–36. This

court rejected the police officer’s first claim, holding

that the parents did not owe the police officer a duty

of care because, in permitting their adult schizophrenic

son to live with them, they had not undertaken a custodial relationship that encompassed responsibility for

controlling his behavior. Id., 36. In rejecting the police

officer’s reliance on Tarasoff v. Regents of University

of California, 17 Cal. 3d 425, 551 P. 2d 334, 131 Cal.

Rptr. 14 (1976), this court further concluded that the

parents were not negligent in failing to warn the police

officer of their son’s dangerous and violent propensities, and that he possessed several axes, because the

parents did not have a professional relationship with

their son and because the police officer was not a specifically identifiable victim. Kaminski v. Fairfield, supra,

216 Conn. 37. This court explained that the parents

‘‘cannot be held liable [to the police officer, who was]

acting as a trained escort for a mental health team on

a visit to a disturbed patient known to be agitated and

to have access to axes.’’ Id., 38.3

In Levandoski, a police officer brought a claim

against a suspect for injuries he sustained during a

pursuit. Levandoski v. Cone, supra, 267 Conn. 654–56.

The issue before this court in that case was ‘‘whether

the firefighter’s rule should be extended beyond the

scope of premises liability so as to bar a police officer

from recovering, based on a claim of ordinary negligence, from a tortfeasor who is neither an owner nor

a person in control of the premises.’’ Id., 654. This court

held that the firefighter’s rule ‘‘should not be extended

to a nonpremises liability case . . . .’’ Id., 661. In reaching this conclusion, we noted that, ‘‘[b]ecause the firefighter’s rule is an exception to the general rule of

tort liability that, as between an innocent party and a

negligent party, any loss should be borne by the negligent party, the burden of persuasion is on the party who

seeks to extend the exception beyond its traditional

boundaries,’’ and that ‘‘the history of and rationales for

the [firefighter’s] rule persuade us . . . that it should
be confined to claims of premises liability.’’ Id. In addition, after briefly discussing Kaminski, this court limited the breadth and scope of that case by concluding

that, ‘‘we agree with those jurisdictions that have

framed the [firefighter’s] rule as one that relates specifically to premises liability . . . .’’ Id., 664.

In Levandoski, we explained the history of the firefighter’s rule in this state as follows: ‘‘This court first

applied the firefighter’s rule in Roberts v. Rosenblatt,

146 Conn. 110, 148 A.2d 142 (1959). In that case, the

plaintiff firefighter, who had responded to an alarm,

sought to recover from the defendant landowners based

upon the defendants’ negligent maintenance of their

property. . . . The trial court declined the defendants’

request to charge the jury, as a matter of law, that the

plaintiff was a licensee upon the defendant’s property

and that the duty which the defendants owed to the

plaintiff was limited by that relationship. . . . This

court stated: Upon these facts, the court should have

instructed the jury as a matter of law that the plaintiff

entered upon the premises in the performance of a

public duty under a permission created by law and

that his status was akin to that of a licensee and the

defendants owed him no greater duty than that due a

licensee. . . .4

‘‘In Furstein v. Hill, [218 Conn. 610, 590 A.2d 939

(1991)], we considered whether to extend the firefighter’s rule to a police officer. We phrased the issue as

whether a police officer occupies the status of an invitee

or of a licensee when, in the course of performing his

official duties, he is injured by a defective condition

on the property of a landowner. We read Roberts as

[adopting] the principle expressed in the Restatement

(Second) of Torts, § 345 (1), that the liability of a possessor of land to one who enters the land only in the

exercise of a privilege, for either a public or a private

purpose, and irrespective of the possessor’s consent,

is the same as the liability to a licensee. . . . We concluded that the rule applies to police officers as well

as firefighters. . . . In doing so, we gave three reasons

for extending the rule to police officers. . . .

‘‘The first reason was cast in terms of the similarity

of the roles of firefighters and police officers, and the

reasonable expectations of landowners regarding those

two types of public officers. . . . The second reason

was essentially a reiteration of the doctrine of assumption of the risk. . . . The third reason rested upon the

combination of the avoidance of double taxation upon

landowners and the availability of workers’ compensation benefits to compensate the injured firefighter or

police officer.’’ (Citations omitted; footnote added;

internal quotation marks omitted.) Levandoski v. Cone,

supra, 267 Conn. 658–61.

In Levandoski, this court concluded that ‘‘[t]his background persuades us that the rule should not be
extended to a nonpremises liability case, such as the

present appeal. Because the firefighter’s rule is an

exception to the general rule of tort liability that, as

between an innocent party and a negligent party, any

loss should be borne by the negligent party, the burden

of persuasion is on the party who seeks to extend the

exception beyond its traditional boundaries. The history of and rationales for the rule persuade us, however,

that it should be confined to claims of premises liability.’’ Id., 661.5

On appeal to this court, the defendant asserts that

Levandoski can be distinguished on the ground that,

unlike the present case, the cause of action in Levandoski was not against a homeowner. Levandoski v.

Cone, supra, 267 Conn. 654–56. The defendant contends

that Kaminski was not overruled by Levandoski and

that Kaminski did not present a claim sounding in

premises liability. Kaminski v. Fairfield, supra, 216

Conn. 37. We are not persuaded. Our statements subsequent to Kaminski indicate the firefighter’s rule should

be limited to claims of premises liability. Kaminski

may be distinguished because it was a claim of vicarious

liability, in that the parents in that case did not cause

the damage to the police officer, and they could not be

held liable for the actions of their adult son. Id., 36–37.

We also note that the decision in Levandoski came

fourteen years after the decision in Kaminski, yet this

court still expressly limited the firefighter’s rule to

premises liability cases.6

The plaintiff contends that the public policy considerations often cited for the firefighter’s rule not only do

not justify expanding the applicability of the rule to

general negligence claims, but they also suggest the

rule should be abolished or limited to premises liability

claims. In response, the defendant claims that, although

the firefighter’s rule essentially began as a rule of premises liability, ‘‘that basis has frequently been abandoned

as jurisdictions have moved away from archaic categorizations such as licensee and invitee.’’ See England v.

Tasker, 129 N.H. 467, 469, 529 A.2d 938 (1987) (‘‘[t]his

basis for the rule is currently without justification, given

the modern rejection of the licensee-invitee distinction

in New Hampshire’’); see also Berko v. Freda, 93 N.J. 81,

85, 459 A.2d 663 (1983) (‘‘the formalistic classification

of invitees, licensees and trespassers no longer forms

the basis of the rule’’). The defendant next asserts that

‘‘the majority of jurisdictions that have established the

firefighter’s rule have extended [it] to nonpremises liability [cases] . . . .’’ The defendant further asserts that

Levandoski did not overrule Kaminski, and that Levandoski does not apply to the present case because Levandoski did not involve an action against a landowner.

The defendant argues that Kaminski is more on point

because, in that case, this court did not allow an action

by a police officer alleging a nonpremises liability claim

against a landowner. He further maintains that the claim
in the present case should not be allowed because the

injury occurred as part of the plaintiff’s duties as a

police officer.

‘‘The most often cited policy considerations [in support of the firefighter’s rule] include: (1) [t]o avoid placing too heavy a burden on premises owners to keep

their premises safe from the unpredictable entrance of

fire fighters; (2) [t]o spread the risk of . . . injuries to

the public through workers’ compensation, salary and

fringe benefits; (3) [t]o encourage the public to call

for professional help and not to rely on self-help in

emergency situations; and (4) [t]o avoid increased litigation.’’ Christensen v. Murphy, 296 Or. 610, 619, 678 P.2d

1210 (1984). Proponents also cite ‘‘double taxation’’ as

another policy consideration in favor of the firefighter’s

rule. Levandoski v. Cone, supra, 267 Conn. 660–61. We

consider each of these policy considerations in turn.

By focusing on a firefighter or police officer as a

class from whom a premises owner needs immunity

from liability, not on the reasonableness of the activity

of the premises owner in the circumstances, the first

policy consideration operates as a veiled form of an

assumption of risk analysis. This legislature of this state,

however, has abolished the assumption of risk doctrine.

See General Statutes § 52-572h (l);7

see also Levandoski

v. Cone, supra, 267 Conn. 662–63. As a result, this policy

consideration fails to support an extension of firefighter’s rule in the present case.

The defendant asserts that we should recognize a

difference between a ‘‘primary’’ assumption of risk,

which arises from the ‘‘special relationship between the

firefighter and the public,’’ and a ‘‘secondary’’ assumption of risk, which arises from an individual firefighter’s

decision to encounter a particular risk. The defendant

argues that, while Connecticut may have abolished the

latter, it did not abolish the reasoning underlying the

former. Thus, the defendant argues that a firefighter

may assume a risk, in the broader sense, when that

risk is inherent to his or her occupation. We are not

persuaded. There is no indication in § 52-572h (l) that

the legislature intended to differentiate between

degrees of assumption of risk. The doctrine was abolished in its entirety. It would be both unfair and incongruous, therefore, for this court to rely on the

assumption of risk doctrine as a basis for extending

the firefighter’s rule beyond premises liability claims

when the clear public policy of our state is contrary to

the very rationale for that doctrine. Regardless of the

continuing vitality of the firefighter’s rule as it relates

to premises liability claims, it certainly should not be

extended on the basis of the common-law doctrine of

assumption of risk.8

Furthermore, as this court explained in Levandoski,

‘‘the firefighter’s rule is essentially a rule of premises

liability. The distinction upon which it rests, namely,
whether the plaintiff is an invitee or licensee, is itself

a distinction that exists in our law only with regard to

claims based upon premises liability, and the differing

duties of care that emanate from those distinctions are

cast in terms of a landowner’s duty to persons on his

or her land. We have recognized that the rule is directly

applicable [to] an issue of landowner liability . . . .

We have declined to extend the rule to a case in which

the plaintiff firefighters sought to recover damages from

the defendant alarm company for injuries and death

sustained as a result of a collision caused by the negligent maintenance and failure of brakes on their fire

engine while responding to a false alarm transmitted by

the defendant. . . . This essential link to a landowner’s

liability, as we [have previously] explained . . . is the

most compelling argument for the rule, because of the

reasonable expectations of landowners, and because

of the ensuing hardship that would be visited upon a

landowner in the absence of the rule. Indeed, we have

reiterated that this is [t]he most compelling argument

for the continuing validity of the rule . . . . This argument simply does not apply if the defendant is not a

landowner. Indeed, neither the differing status of the

plaintiff nor the reasonable expectations of the defendant are relevant if the plaintiff is not engaged in entering the land of the defendant. It would be anomalous,

therefore, to extend the rule to a case in which the

most compelling argument for the rule is inapplicable.’’

(Citations omitted; internal quotation marks omitted.)

Levandoski v. Cone, supra, 267 Conn. 661–62.

Indeed, in Levandoski, this court explained that ‘‘to

the extent that the firefighter’s rule rests on the doctrine

of assumption of the risk, it would be inconsistent with

the policy of our general tort law to extend the rule

beyond its present confines. That policy is expressed

in . . . § 52-572h, pursuant to which the legislature has

abolished the doctrine of assumption of the risk in

negligence actions. Section 52-572h (l) provides: ‘The

legal doctrines of last clear chance and assumption of

risk in actions to which this section is applicable are

abolished.’ Subsection (b) of § 52-572h makes the statute applicable to ‘causes of action based on negligence

. . . .’ The present action is ‘[a cause] of action based

on negligence . . . .’ ’’ (Footnote omitted.) Id., 662–63.

We next turn to the claim that the firefighter’s rule

is supported because it spreads the risk of firefighter’s

injuries to the public through workers’ compensation,

salary and fringe benefits. As the Supreme Court of

Oregon explained, ‘‘[t]he weakness in the loss-spreading rationale . . . is obvious. By denying a public safety

officer recovery from a negligent tortfeasor, the officer

is not directed to recover his damages from the general

public; rather the officer is totally precluded from recovering these damages from anyone. Contrast this with

other public employees who are injured when confronting dangers on their jobs. The latter can recover work-
ers’ compensation and salary benefits from the public,

but are also allowed additional tort damages from the

third-party [tortfeasors].’’ Christensen v. Murphy,

supra, 296 Or. 620. For instance, either the municipal

emergency medical technician, injured due to a homeowner’s negligence in the maintenance of his property

while transporting a patient, or the municipal building

inspector, injured due to homeowner’s negligence while

examining structures, is able to bring civil actions

against defendants who may be responsible for his or

her injuries. However, ‘‘[u]nder the [firefighter’s] rule

the injured public safety officer must bear a loss which

other public employees are not required to bear.’’ Id.

Expanding such a rule would unnecessarily and improperly discriminate against public safety officers. While

there is certainly danger inherent in the job of being a

police officer or a firefighter, it is interesting to note

that, in terms of the most dangerous public sector jobs,

refuse and recyclable collectors were ranked as having

the fifth most dangerous overall job in the United States

in 2015, ahead of both firefighters and police officers.

United States Dept. of Labor, ‘‘National Census of Fatal

Occupational Injuries in 2015’’ (2016) p. 4, available at

https://www.bls.gov/news.release/pdf/cfoi.pdf (last visited September 13, 2017). Despite these statistics, we

do not have a similar rule for refuse and recyclable

collectors. Instead, a refuse and recyclable collector

may bring a civil action against third-party tortfeasors

responsible for his or her injuries if he or she is injured

on someone’s property.9

If one of the foundations underlying the firefighter’s rule is that the job of police officers and firefighters are so inherently dangerous that

danger and injury are part of the job, it hardly seems

justified to extend the rule when statistically there are

more dangerous public sector jobs in which we allow

the injured worker to pursue recovery from a thirdparty. See S. Maloney, United States Dept.ofLabor,

‘‘Nonfatal Injuries and Illnesses Among State andLocal

Government Workers’’ (2014) p. 8, available at

https://www.bls.gov/spotlight/2014/soii-gov-workers/

home.htm (last visited September 13, 2017) (for state

and local employees, nursing and residential care workershave highest rate of nonfatal injuries).

The defendant claims that the firefighter’s rule is also

justified because police officers and firefighters receive

extra benefits as a result of their employment. We disagree. While there may be certain additional benefits

negotiated with municipalities as the result of union

collective bargaining, we cannot discern any statute in

which the legislature has provided extra compensation

to police officers or firefighters as a result of their

employment.10

The proponents of the firefighter’s rule claim that it

encourages the public to call for professional help and

not to rely on self-help in emergency situations. This

rationale has been criticized by one legal scholar, Wil-
liam L. Prosser, as ‘‘preposterous rubbish.’’ W. Prosser,

Law of Torts (4th Ed. 1971) § 61, p. 397. Indeed, we

conclude that, in an emergency situation, it is unlikely

any person would be hesitant to call for help because

they are concerned about liability for potential injuries

to public safety personnel.

We note that the concurrence disagrees with this

conclusion. Although a majority of jurisdictions employ

the firefighter’s rule, there are many that do not.11 In

total, eighteen states have abolished the firefighter’s

rule, severely limited its application, or have not

addressed it at all.12 See Apodaca v. Willmore, 306 Kan.

103, 114, 392 P.3d 529 (2017). We have not been able

to find, and the concurrence does not point to, any

evidence that there has been an effect on the residents

in these eighteen states that deters them from calling

for emergency assistance. Moreover, we cannot find,

and the concurrence does not point to, any evidence

of any significant detriment to society in those states

that have never adopted the rule. See generally Holmes

v. Adams Marine Center, Docket No. CV-99-239, 2000

WL 33675369 (Me. Super. July 17, 2000).13

Although the concurrence correctly states that we

provide no evidence to support our agreement with

Prosser, this is because there is no significant evidence

for, or against, Prosser’s statement. Other jurisdictions

have either agreed with his characterization; Christensen v. Murphy, supra, 296 Or. 620; or disagreed with

it; Fordham v. Oldroyd, 171 P.3d 411, 413 (Utah 2007).

No jurisdiction appears to have analyzed whether the

absence of the firefighter’s rule actually does deter people from calling for emergency assistance. The concurrence also fails to rebut our approval of Prosser’s

statement by pointing to any evidence to demonstrate

that the ‘‘chilling’’ effect on citizens has occurred anywhere else in the nation where the firefighter’s rule has

been abolished or limited. It is important to note that

the firefighter’s rule presently allows a police officer

or firefighter to bring claims for negligence that do not

involve premises liability. It is not a rule of absolute

liability for injuries to firefighters or police officers who

suffer an injury at a homeowner’s residence due to the

negligence of the homeowner. If an injury is suffered

without negligence, the action is covered by workers’

compensation. We note that even the concurrence

would allow an action by a firefighter or police officer

against a homeowner for negligence that occurred after

the police officer or firefighter arrived. We suggest that

most cases, as exhibited by the fact pattern in the present case, would fall into that category. The concurrence

would also allow an action, like the present case, against

a third party who was not involved in contacting the

police. It is simply inconceivable to us that someone

whose house is on fire will debate or hesitate in calling

the fire department because he or she fears a firefighter

might bring some negligence action if injury occurs.
Instead, we presume that the primary concern of a

person whose house is on fire would be to act to protect

the health and safety of the people in the home and to

salvage the property.

The concurrence relies on Lodge v. Arett Sales Corp.,

246 Conn. 563, 717 A.2d 215 (1998), to support its contention that this court has previously relied on this

policy rationale to support the firefighter’s rule. We

disagree. As this court explained in its opinion, Lodge

did not involve the application of the firefighter’s rule.

Specifically, this court explained as follows: ‘‘In

Furstein, we analyzed the firefighter rule, which gives

a firefighter the status of a licensee in a personal injury

action against a landowner for harm sustained during

the course of duty. Furstein v. Hill, supra, 218 Conn.

615–16 . . . . The firefighter rule is not directly applicable in this case because this is not an issue of landowner liability, and we decline to extend the rule to

the present situation. Its rationale is, however, instructive for understanding the policy issues relevant to compensation of firefighters injured in the line of duty.

We concluded that limited liability was appropriate in

Furstein . . . and Roberts . . . because (1) the

nature of a firefighter’s work is inherently hazardous

and the choice of that occupation is akin to assumption

of the risk, and (2) firefighters are adequately compensated for the job they perform and are able to recover

workers’ compensation for injuries sustained in the

course of their employment. . . . Both of these public

policy considerations are equally relevant to the question of whether, as a matter of policy, the defendants

should be liable for the unforeseen consequences of

their negligent transmission of a false alarm.’’ (Citations

omitted.) Lodge v. Arett Sales Corp., supra, 580–81 n.12.

Accordingly, we conclude that the well reasoned analysis of Levandoski, not Lodge, is central to whether to

apply the firefighter’s rule in the present case. Furthermore, even in Lodge, we acknowledged that this court

declines to extend the firefighter’s rule beyond landowner liability. Id., 580 n.12.

In Lodge, firefighters were responding to a fire alarm,

which was in reality a false alarm, and the fire engine’s

brakes were defective. Id., 566–70. The defective brakes

caused an accident, which injured and killed firefighters. Id. This court mentioned the public policy arguments in support of the firefighter’s rule in one

paragraph, but it was not the primary rationale behind

the conclusion in Lodge. Id., 579–81. This court reasoned that imposing liability on the alarm company

would be too far removed from the harm incurred. Id.,

582–84. The concern of having a ‘‘chilling’’ effect on

alarm companies is fully justified in the circumstances

of Lodge. Specifically, if this court had allowed a claim

to proceed against the alarm company in Lodge, it

would have forced alarm companies to be responsible

for monitoring and maintaining the brakes of emer-
gency response vehicles to ensure they would not crash.

Such a result would be absurd and would threaten the

viability of fire alarm companies. Id., 584–85. This court

was not referring to the ‘‘chilling’’ effect upon society

in regard to calling for help if a negligent resident could

be held liable for directly harming emergency responders, but specifically stated that the decision was based

on liability ‘‘for those consequences that are not reasonably foreseeable, but, rather, are significantly attenuated from the original negligent conduct . . . .’’ Id.,

584. In circumstances where there is a direct causal

relation between the tortfeasor and the harm suffered

by the claimant, like the present case, Lodge is not

persuasive and does not support the position of the

defendant as the concurrence suggests.

The concern that limiting the firefighter’s rule will

result in increased litigation is also not persuasive. As

this court has recognized in other contexts, ‘‘rather

than unnecessarily and unwisely increasing litigation,

imposing a duty in this case will likely prompt [people]

to act more responsibly . . . in the interest of preventing foreseeable harm . . . .’’ Ruiz v. Victory Properties, LLC, 315 Conn. 320, 340, 107 A.3d 381 (2015).

This is consistent with ‘‘the general tort policy of deterring similar tortfeasors from wrongful conduct.’’

Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 23,

699 A.2d 964 (1997). This is also consistent with ‘‘the

general rule of tort liability that, as between an innocent

party and a negligent party, any loss should be borne

by the negligent party . . . .’’ Levandoski v. Cone,

supra, 267 Conn. 661.

Finally, we are not persuaded by the rationale that

the firefighter’s rule helps to avoid double taxation.

This assertion has its genesis in the expectation that

‘‘the public should [and does] compensate its safety

officers both in pay that reflects the hazard of their

work and in workers’ compensation benefits for injuries

suffered when the risks inherent in the occupation

materialize.’’ Furstein v. Hill, supra, 218 Conn. 619. We

reject this argument as contrary to the clear public

policy of General Statutes § 31-293, that ‘‘the third party

tortfeasor, and not the employer, shall be primarily

responsible for bearing the economic loss resulting

from the tortfeasor’s negligence.’’ Cruz v. Montanez,

294 Conn. 357, 383, 984 A.2d 705 (2009); see also, e.g.,

Dodd v. Middlessex Mutual Assurance Co., 242 Conn.

375, 384, 698 A.2d 859 (1997) (‘‘[b]y allowing the

employer to take action in order to recover the workers’

compensation benefits it was legally obligated to pay

to its injured employee, the act ensure[s] that, as in an

action in tort, the ultimate loss [falls on] the wrongdoer’’). All or virtually all of the towns and cities in

Connecticut self-administer their workers’ compensation insurance plans. As a result, taxpayers’ money is

spent when an injured police officer undergoes medical

treatment and receives indemnity benefits through
workers’ compensation. An injured police officer who

is precluded from bringing a claim against a negligent

third party would frustrate the legislative intent and

public policy set forth in § 31-293 because the taxpayers,

through the municipality, would be unable to recoup

the money they spent on the workers’ compensation

claim of the injured police officer.

As this court explained in Levandoski, ‘‘to the extent

that the firefighter’s rule rests on the avoidance of double taxation of the landowner and the presence of workers’ compensation benefits for the injured firefighter or

police officer, the rationale does not apply to the present case. The defendant is not a taxpayer, as is a landowner who pays taxes on his or her property. Of course,

although in any given case a negligent tortfeasor who

injures a firefighter or police officer may also pay taxes

to the local municipality, that fact would be wholly

fortuitous. The point of the rule, however, is that the

landowner who owes a lesser degree of duty to the

police officer who enters his or her land has that benefit

because, as a landowner, he or she also indirectly pays

the salary of the officer through property taxes. Furthermore, we are not persuaded that, simply because the

firefighter or police officer has recourse to workers’

compensation benefits, he or she should not also be

able to recover from a third party based on negligence.

We do not ordinarily put such an elevated burden on

recovery where, for example, the third party is a product

manufacturer, and we see no persuasive reason to do

so in the context of the present case. In addition, as

the present case indicates, permitting the plaintiff to

recover for the defendant’s negligence will tend to

reduce workers’ compensation costs by permitting the

plaintiff’s employer to recoup those benefits.’’ Levandoski v. Cone, supra, 267 Conn. 663–64.

Further, we recognize that most homeowners are

insured against the risk of people being injured on their

property due to the fault of the homeowner. The homeowner is able to insure against such a risk. Therefore, it

hardly constitutes double taxation when a homeowner’s

insurance carrier must pay money to a person injured

on the homeowner’s property due to the homeowner’s

negligence. Given these facts, public policy considerations strongly suggest that the firefighter’s rule should

be, at the very least, limited to premises liability claims.14

Although the defendant points to several jurisdictions

that have extended the firefighter’s rule beyond premises liability claims, we note that some of those jurisdictions have not specifically rejected the doctrine of

assumption of risk as the legislature has in Connecticut.

Further, we are persuaded by the reasoning of those

cases that have either refused to adopt the firefighter’s

rule at all or limited it to premises liability. See Thompson v. FMC Corp., 710 So. 2d 1270, 1271 (Ala. Civ. App.

1998) (not adopted); Bath Excavating & Construction

Co. v. Wills, 847 P.2d 1141, 1146 (Colo. 1993) (declining
to adopt); Holmes v. Adams Marine Center, supra, 2000

WL 33675369 (noting that Maine has declined to adopt);

Hopkins v. Medeiros, 48 Mass. App. 600, 608–609, 724

N.E.2d 336 (2000) (declining to adopt); Christensen v.

Murphy, supra, 296 Or. 620 (abolished); Minnich v.

Med-Waste, Inc., 349 S.C. 567, 575, 564 S.E.2d 98 (2002)

(declining to adopt).

Accordingly, we are persuaded by the plaintiff’s argument that the present case is controlled by Levandoski.

To the extent that the defendant asserts that Kaminski

supports barring negligence claims against third parties

by public safety officers, we conclude that assertion is

foreclosed by Levandoski. As we stated in Levandoski

‘‘[w]e disagree with the defendant’s suggestion that we

ought to extend the firefighter’s rule beyond situations

in which the plaintiff is injured while on the defendant’s

land; instead, we agree with those jurisdictions that

have framed the rule as one that relates specifically to

premises liability and defines the duty owed by an

owner or occupier of land.’’ (Emphasis in original.)

Levandoski v. Cone, supra, 267 Conn. 664. We have

examined the policy considerations that served as the

foundation for Levandoski, together with the additional

arguments presented by counsel in the present case.

We note that, because the defendant is urging us to

expand a common-law rule on the basis of public policy

considerations, the burden is on him to persuade us

that the rule should be so extended. We declined to

extend the firefighter’s rule in Levandoski. Likewise,

we conclude that the defendant has failed to convince

us that the firefighter’s rule should be expanded in the

present case. Although the distinctions that existed at

common law when the firefighter’s rule was first developed—namely, the distinction between a licensee and

an invitee—no longer appear to be used by many jurisdictions, the other policy considerations remain valid.15

In the present case, the plaintiff did not make any claim

that his injuries were caused by a defect in the premises.

Therefore, we conclude that the trial court improperly

granted the defendant’s motion to strike.16

The judgment is reversed and the case is remanded

for further proceedings according to law.

In this opinion ROGERS, C. J., and ESPINOSA and

VERTEFEUILLE, Js., concurred.

* The listing of justices reflects their seniority status on this court as of

the date of oral argument.

1 We note that Sepega’s employer, the town of Clinton, was granted permission by the trial court to intervene as a plaintiff in the present case. For the

sake of simplicity, however, we refer to Sepega as the plaintiff in this opinion.

2 The plaintiff appealed from the judgment of the trial court to the Appellate

Court, and we transferred the appeal to this court pursuant to General

Statutes § 51-199 (c) and Practice Book § 65-1.

3 We emphasize that Kaminski (1) involved a police officer, (2) was

decided before the firefighter’s rule was extended to police officers, and

(3) did not involve the application of the firefighter’s rule at all, but instead

involved the duty to warn a third party about a mentally ill person’s propensity for violence. Kaminski v. Fairfield, supra, 216 Conn. 30. The concurrence relies upon dictum in Kaminski for the proposition that the
firefighter’s rule is grounded in a public policy of not discouraging citizens

from calling the police when needed. It is interesting to note that, one year

after our decision in Kaminski, this court noted that ‘‘the firefighter’s rule

adopted by this court . . . applies to police officers who are injured by

defective conditions on private property while the officers are present upon

such property in the performance of their duties.’’ Furstein v. Hill, 218

Conn. 610, 620, 590 A.2d 939 (1991).

4 Levandoski, therefore, correctly identified the public policy principles

underlying the firefighter’s rule as, unsurprisingly, being rooted in the law

of premises liability, because the firefighter’s rule arose in that context in

Connecticut. Levandoski v. Cone, supra, 267 Conn. 661–62. The concurrence

fails to address the ‘‘most compelling’’ principle, as explained in Levandoski,

which is that firefighters and police are licensees rather than invitees. Id., 662.

Once their duty as public servants is triggered, a landowner’s or occupier’s

consent is irrelevant to their power to enter land. In fact, once that duty is

triggered, an owner or occupier cannot exclude them from entering. Therefore, it would be unreasonable to impose a duty on owners or occupiers to

keep their premises free from defects, especially since such entries can

occur at any time of day or night. Imposition of that duty would require

owners and occupiers to keep the premises free of defect constantly. Id.

The concurrence instead focuses on two principles that Levandoski considered less compelling—double taxation and assumption of risk. Id., 662–63.

The concurrence then criticizes Levandoski’s reliance on these principles.

By suggesting that these are the primary public policy principles underlying

this court’s decision in Levandoski, the concurrence sets up a straw man.

We again emphasize that the holding in Levandoski—that the firefighter’s

rule should not be extended beyond the context of premises liability—is

not dictum. That was the precise issue this court identified as being presented

on appeal. It was also the issue that was argued by the parties in that case.

There is, therefore, simply no basis for characterizing the holding of this

court in Levandoski as dictum.

5 The concurrence asserts that Levandoski ‘‘stand[s] only for the limited

proposition that none of the public policies supporting the firefighter’s rule

precludes the imposition of a duty of care on suspected criminals who are

fleeing or resisting a police officer’’ and that ‘‘much of Levandoski, echoed

by the majority in the present case, constitutes legally flawed dictum that

undercuts the duty analyses in Kaminski . . . and Lodge v. Arett Sales

Corp., 246 Conn. 563, 717 A.2d 215 (1998), which are based substantially

on the well established public policies that support the firefighter’s rule,

especially that of encouraging our citizens to call for professional help in

emergencies without fear of civil liability.’’ The concurrence further asserts

that ‘‘[l]egislative action, as in some of our sister states, would be ideal for

making the appropriate findings and articulating the contours of Connecticut’s firefighter’s rule. . . . Nevertheless, until such time as our legislature

can act, I would adopt a formulation of the firefighter’s rule as a matter of

common law that encourages citizens to seek help in emergencies, while not

slamming the courthouse door to appropriate claims of our first responders.’’

(Footnote omitted.) We disagree.

First, as a unanimous panel of this court explained in Levandoski, ‘‘[t]he

principal issue in [that case was] whether the firefighter’s rule should be

extended beyond the scope of premises liability so as to bar a police officer

from recovering, based on a claim of ordinary negligence, from a tortfeasor

who is neither an owner nor a person in control of the premises. The

defendant, who is not a landowner or person in control of land, appeals

from the judgment of the trial court, following a jury trial, in favor of the

plaintiff, a police officer who was injured by the defendant’s negligent conduct on the land of another person. We conclude that the firefighter’s rule

should not be so extended and, accordingly, we affirm the judgment of the

trial court in favor of the plaintiff.’’ (Footnote omitted.) Levandoski v. Cone,

supra, 267 Conn. 654. Accordingly, we conclude that Levandoski is the

appropriate legal framework by which to analyze the present case and that

its holding that the firefighter’s rule should not be extended beyond premises

liability was not dictum.

Second, to the extent that the concurrence asserts that determining the

extent of the firefighter’s rule is a legislative issue, we conclude that the

legislature’s inaction since Levandoski is indicative of the legislature’s validation of this court’s interpretation of the firefighter’s rule in that case.

Levandoski was decided approximately thirteen years ago. Over that time,

the legislature has not addressed our decision or passed any legislation to

overrule it. ‘‘Although we are aware that legislative inaction is not necessarily

legislative affirmation . . . we also presume that the legislature is aware

of [this court’s] interpretation of [law], and that its subsequent nonaction
may be understood as a validation of that interpretation.’’ (Internal quotation

marks omitted.) Caciopoli v. Lebowitz, 309 Conn. 62, 78, 68 A.3d 1150 (2013).

By choosing not to legislatively overrule Levandoski, the legislature has

acquiesced to this court’s interpretation that the firefighter’s rule is limited

to premises liability. Indeed, one of the indicators of legislative acquiescence

to our interpretation of a statute is the passage of ‘‘an appropriate interval

[of time] to permit legislative reconsideration . . . without corrective legislative action . . . .’’ (Internal quotation marks omitted.) Hummel v. Marten

Transport, Ltd., 282 Conn. 477, 494–95, 923 A.2d 657 (2007); see also Efstathiadis v. Holder, 317 Conn. 482, 493, 119 A.3d 522 (2015).

The concurrence further states that it ‘‘respectfully disagree[s] . . . with

the analytical approach taken in the majority’s opinion insofar as it follows

Levandoski and broadly holds that the firefighter’s rule does not apply

beyond the limited context of premises liability.’’ There is nothing broad

about our interpretation of Levandoski. The concurrence reads into Levandoski an interpretation that the written words do not suggest. The concurrence suggests an alleged parade of horribles that transforms the firefighter’s

rule far beyond its definition. The concurrence suggests, for instance, ‘‘that

the breadth of the majority’s opinion carries with it numerous unintended

and deleterious consequences insofar as it invites first responders to bring

civil actions against victims of crime and motor vehicle accidents.’’ This

suggestion transforms the firefighter’s rule into a much broader debate

about common-law negligence, duty, and responsibility. This suggestion

goes far beyond the facts of the present case and amounts to a general

advisory opinion.

As explained in Levandoski ‘‘[t]he common-law firefighter’s rule provides,

in general terms, that a firefighter or police officer, who enters private

property in the exercise of his duties occupies the status of a licensee and,

therefore, is owed a duty of care by the property owner that is less than

owed to an ordinary invitee.’’ (Emphasis added; internal quotation marks

omitted.) Levandoski v. Cone, supra, 267 Conn. 653–54. The present case

involves the issue of whether a property owner who allegedly acted negligently after the police arrived could be liable. The doctrine should be confined to the facts of the present case insofar as it involves a property owner.

Even the concurrence suggests that there could be liability in this instance.

While the concurrence is content to criticize the ‘‘legally flawed dictum’’

and ‘‘errors’’ of Levandoski, we rely upon it as controlling precedent on an

issue that is precisely on point with the present case. We also note that

Levandoski, which was written fourteen years after Kaminski and six years

after Lodge v. Arett Sales Corp., 246 Conn. 563, 717 A.2d 215 (1998), which

are both relied on by the concurrence, was a unanimous decision of this

court written by Justice Borden. We further note that it would appear that

the concurrence wishes to have the rule apply to all first responders, which

is an issue that this court has never addressed and is not at issue in the

present case. Although the concurrence does suggest that it ‘‘leave[s] to

another day the question of whether the firefighter’s rule applies to emergency medical personnel,’’ its reasoning would certainly apply to such individuals.

There is another important legal concept at issue in the present case—

namely, stare decisis. As Chief Justice Rogers has noted in a recent concurring opinion, ‘‘[n]o judicial system could do society’s work if it eyed each

issue afresh in every case that raised it. . . . Indeed, the very concept of

the rule of law underlying our own [c]onstitution requires such continuity

over time that a respect for precedent is, by definition, indispensable.’’

(Internal quotation marks omitted.) State v. Peeler, 321 Conn. 375, 378, 140

A.3d 811 (2016); see Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833, 854, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992); see also

George v. Ericson, 250 Conn. 312, 318, 736 A.3d 889 (1999) (‘‘Stare decisis

is justified because it allows for predictability in the ordering of conduct,

it promotes the necessary perception that the law is relatively unchanging,

it saves resources and it promotes judicial efficiency . . . . It is the most

important application of a theory of [decision-making] consistency in our

legal culture and it is an obvious manifestation of the notion that [decisionmaking] consistency itself has normative value.’’ [Citation omitted; internal

quotation marks omitted.]).

‘‘While stare decisis is not an inexorable command . . . even in constitutional cases, the doctrine carries such persuasive force that we have always

required a departure from precedent to be supported by some special justification.’’ (Citations omitted; internal quotation marks omitted.) Dickerson

v. United States, 530 U.S. 428, 443, 120 S. Ct. 2326, 147 L. Ed. 2d 405

(2000). ‘‘Such justifications include the advent of subsequent changes or

development in the law that undermine a decision’s rationale . . . the need
to bring [a decision] into agreement with experience and with facts newly

ascertained . . . and a showing that a particular precedent has become a

detriment to coherence and consistency in the law . . . .’’ (Citations omitted; internal quotation marks omitted.) Payne v. Tennessee, 501 U.S. 808,

849, 111 S. Ct. 2579, 115 L. Ed. 2d 720 (1991) (Marshall, J., dissenting); see

also State v. Peeler, supra, 321 Conn. 378–79 (Rogers, C. J., concurring).

We conclude that the present case does not present any special justification

that would support a departure from this court’s precedent and require this

court to overrule Levandoski.

The concurrence would overrule Levandoski ‘‘insofar as it stands for the

broad proposition that the firefighter’s rule does not extend beyond the

context of premises liability.’’ As we have explained previously herein, the

proposition that the firefighter’s rule does not extend beyond premises

liability is, indeed, the precise holding of Levandoski. Accordingly, the concurrence in actuality calls for Levandoskito be overruled because, according

to the concurrence, ‘‘many aspects of Levandoski are clearly wrong . . . .’’

(Internal quotation marks omitted.) We disagree. Levandoski provided a

thorough and detailed analysis of both the history and policies underlying

the firefighter’s rule. Although the fear of civil liability was not discussed,

we are not convinced that there is any proof that this concept actually

exists. It is the defendant’s burden to persuade us to depart from precedent

and extend the rule. The defendant has failed to do so. There is no empirical

proof that convinces us that we should extend the rule and ignore existing

precedent. In short, we conclude that Levandoski was not wrongfully

decided. Further, we refuse to accept the concurrence’s baseless contentions

that Levandoski is ‘‘legally flawed’’ and contains ‘‘errors.’’

6 The concurrence relies on this court’s decision in Kaminski to support

its claim that the firefighter’s rule encourages citizens to call for help.

Specifically, the concurrence quotes Kaminski’s description of the fact that

‘‘the defendant, an armed police officer, came to the plaintiffs’ home in the

course of his professional responsibilities to assist in dealing with the crisis

to which the team had been alerted,’’ and this court’s statement that ‘‘[f]undamental concepts of justice prohibit a police officer from complaining of

negligence in the creation of the very occasion for his engagement.’’ Kaminski v. Fairfield, supra, 216 Conn. 37–38. The concurrence reasons that,

‘‘Kaminski is significant because it is our seminal recognition, as a matter

of public policy, of the benefits of encouraging our state’s citizens to seek

assistance from our communities’ first responders, rather than stoking a

fear of liability that would create incentives for delayed calls, self-help, or

both.’’ We disagree. These statements from Kaminski do not support the

policy argument that the concurrence claims is at issue, but instead are

‘‘redraped [arguments] drawn from . . . implied assumption of risk.’’ Christensen v. Murphy, 296 Or. 610, 619, 678 P. 2d 1210 (1984). This language

from Kaminski can be phrased another way—namely, that the plaintiff, by

agreeing to be a police officer, assumed the risk of encountering violent

people and possibly being injured. As we explain subsequently in this opinion, the assumption of risk doctrine has been abolished in Connecticut. See

General Statutes § 52-572h (l). Although we agree with the concurrence that

the abolition of assumption of risk alone does not warrant the preclusion

of the firefighter’s rule beyond premises liability cases, the assumption of

risk doctrine should not be the basis upon which we decide cases involving

the firefighter’s rule.

We also agree with the concurrence that ‘‘if an individual fails to warn

of known, hidden dangers on his premises or misrepresents the nature of

[a] hazard’’ and ‘‘such misconduct causes [an] injury to [a firefighter],’’ there

should be an exception to the firefighter’s rule that allows a civil action by

the firefighter.

We take issue, however, with the assertion by the concurrence that our

application of the firefighter’s rule represents economic classism insofar as

it gives tort immunity only to landowners. We have raised the issue of the

questionable continued vitality of the rule and suggested that we are not

reaching this issue only because it has not been raised by the parties. See

footnote 15 of this opinion. Further, we have suggested that the classification

of the type of person entering on property and the respective duty a landowner may have to that individual seems to be a concept no longer accepted

by a majority of states. See, e.g., Berko v. Freda, 93 N.J. 81, 85, 459 A.2d

663 (1983). The concurrence seems to suggest a good reason to do away

with the firefighter’s rule entirely, instead of extending it in the absence of

sound empirical evidence to support the extension. What the concurrence

neglects to observe is that the burden of persuasion to extend this doctrine

is upon the person seeking the extension, not the person relying upon

existing case law. In the absence of empirical evidence that people do

not call emergency personnel because they are afraid of civil liability, this
extension must fail for lack of persuasive proof.

Further, the concurrence cites Baldonado v. El Paso Natural Gas Co.,

143 N.M. 288, 176 P.3d. 277 (2008), in support of a ‘‘policy-based approach

to the firefighter’s rule.’’ In that case, a natural gas pipeline exploded killing

twelve members of an extended family who were camping at a nearby

campsite. Id., 290. The plaintiffs, who were first responders, claimed that

they suffered extreme emotional distress in witnessing the injuries suffered

by the victims when the plaintiffs assisted them after the explosion. Id.

The New Mexico Supreme Court adopted a policy based approach to the

firefighter’s rule and held that a firefighter may recover damages if such

damages were proximately caused by (1) intentional conduct or (2) reckless

conduct, provided the harm to the firefighters exceeded the scope of risks

inherent in the firefighters’ professional duties. Id. Applying this rule to the

case before it, the New Mexico Supreme Court concluded that the firefighters

had properly pleaded a claim for intentional infliction of emotional distress.

Id. It is interesting that the court noted that ‘‘specific duties [of a homeowner]—to warn of hidden hazards and to accurately represent the nature

of a hazard—are distinct from the conduct that brings firefighters to the

scene, and thus fall outside the scope of [the] rule.’’ Id., 292. Thus, the failure

to warn descriptions in the concurrence’s hypothetical would appear to be

outside the scope of the rule in New Mexico. Further, we note that, pursuant

to Clohersy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996), recovery for

negligent infliction of emotional distress requires proof of the following: (1)

the bystander must be ‘‘closely related’’ to the victim; (2) the bystander’s

emotional injury must be ‘‘caused by the contemporaneous sensory perception’’ of the event that causes the injury; (3) the injury must be ‘‘substantial,

resulting in [either] death or serious physical injury’’; and (4) the bystander

must have sustained a ‘‘serious’’ emotional injury that is ‘‘beyond that which

would be anticipated in a disinterested witness and which is not the result of

an abnormal response.’’ Likewise, in order to establish a claim for intentional

infliction of emotional distress, the plaintiff must establish four elements:

‘‘(1) that the actor intended to inflict emotional distress or that he knew or

should have known that emotional distress was the likely result of his

conduct; (2) that the conduct was extreme and outrageous; (3) that the

defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the

emotional distress sustained by the plaintiff was severe.’’ (Internal quotation

marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757

A.2d 1059 (2000). It is therefore doubtful that, under Connecticut law, a

policeman or firefighter would be able to present a claim for negligent or

intentional infliction of emotional distress, regardless of the firefighter’s rule.

7 General Statutes § 52-572h (l) provides: ‘‘The legal doctrines of last clear

chance and assumption of risk in actions to which this section is applicable

are abolished.’’

8

It is also interesting to note that, while it may appear that the old

distinction between licensees and invitees are disappearing, that policy

argument may provide stronger support for abolishing the firefighter’s rule

entirely. Indeed, because one of the very foundations for the firefighter’s

rule is disappearing, perhaps it would be better to examine each claim on

the basis of an ordinary negligence test and allow cases to proceed on

that basis.

9 We note that, although some refuse and recyclable collectors are

employed by private companies, some also work in the public sector.

10 We note that General Statutes § 7-433c (a) provides for certain workers’

compensation benefits for police officers and firefighters that are disabled

as a result of hypertension or heart disease. The benefits of this provision,

however, have been limited by our legislature to those employed before

July 1, 1996. See General Statutes § 7-433c (b).

11 ‘‘[M]ore than [thirty] jurisdictions in the United States have adopted the

firefighter’s rule . . . . Approximately [ten] states do not appear to have

addressed the firefighter’s rule at all. Of the remaining states, Florida, Illinois,

Massachusetts, Minnesota, New Jersey, and New York have abolished or

severely limited the rule by statute. . . . Oregon and South Carolina have

abolished or declined to adopt the firefighter’s rule by judicial decision.’’

(Citations omitted.) Apodaca v. Willmore, 306 Kan. 103, 113–14, 392 P.3d

529 (2017).

12 The concurrence asserts that the ‘‘overwhelming majority of other courts

continue to hold that encouraging citizens to call for help without fear of

liability, even for emergencies of their own creation, remains a paramount

public policy.’’ None of the cases cited by the concurrence, however, specifically focuses on the public policy rationale of encouraging society to call

for help except for a quick mention. Of specific note is the concurrence’s

reliance on Berko v. Freda, supra, 93 N.J. 81, and Lanza v. Polanin, 581
So. 2d 130 (Fla. 1991), where the New Jersey and Florida Supreme Courts

examined the public policy arguments behind the firefighter’s rule and

approved of the policy rationales. Those cases, however, have been superseded in both states by legislative action abolishing the firefighter’s rule.

See Fla. Stat. Ann. § 112.182 (1) (West 2014); N.J. Stat. Ann. § 2A:62A-21

(West 2014). While New Jersey and Florida courts may have decided that

the public policy was in favor of the firefighter’s rule, it is the proper role

of the legislature to make those determinations, and the legislative bodies

in those states decided that the public policy rationales did not support

continuation of the firefighter’s rule. See Campos v. Coleman, 319 Conn.

36, 65–67, 123 A.3d 854 (2015) (Zarella, J., dissenting). The concurrence’s

reliance on Steelman v. Lind, 97 Nev. 425, 634 P.2d 666 (1981), is misplaced

as well, since the Nevada legislature examined the public policy rationales

and felt that this concern was not so important so as to permit the continued

expansion of the firefighter’s rule, although the rule was not completely

abolished. See Nev. Rev. Stat. § 41.139 (2015).

13 To be clear, we are not advocating for the complete abolition of the

firefighter’s rule in this opinion. The issue has not been raised by the parties.

We only mention these other jurisdictions for a broader view of places that

are apparently unaffected by the lack of the firefighter’s rule.

14 Even in premises liability cases, however, the double taxation argument

fails because, as mentioned previously in this opinion, most homeowners

have insurance to cover people who may be injured on their property through

the homeowner’s negligence.

15 In fact, the policy considerations are more supportive of a complete

abrogation of the rule than an expansion of same. However, because that

issue is not before us in the present case, we leave the question of the

continuing vitality of the firefighter’s rule as to premises liability for

another day.

16 The concurrence provides a litany of possible cases that could occur

as a result of this opinion, and, although we will not comment on every

single possible hypothetical suggested, we feel that they are less than realistic

considering that our opinion does not abrogate traditional elements of a

negligence action. This opinion speaks only of the duty owed to a police

officer and whether the trial court’s judgment granting the motion to strike

was legally correct. Consequently, many of those cases to which the concurrence refers may lack the other elements necessary to maintain a negligence

action. The concurrence even admits as much, but still asserts that our

opinion is improper because it will give these cases their ‘‘ill-deserved day

in court.’’ We fail to see how someone exercising their right to have an issue

adjudicated, unless it is a frivolous claim, should be considered an ‘‘illdeserved day in court.’’

One possible ‘‘ill-deserved’’ case suggested by the concurrence is that an

emergency medical technician could bring an action for injuries arising

from a patient’s negligence. The concurrence fails to realize that emergency

medical technicians are not barred by the firefighter’s rule in Connecticut

and have brought actions for injuries caused by negligence in the past. See

Nagy v. Arsenault, Superior Court, judicial district of Windham, Docket No.

CV-14-6007793-S (May 21, 2015) (60 Conn. L. Rptr. 389). Professor Robert

H. Heidt, whom the concurrence cites, refers to another situation where an

emergency medical technician in Connecticut brought an action against a

heart attack patient after the emergency medical technician slipped on the

patient’s staircase. See R. Heidt, ‘‘When Plaintiffs Are Premium Planners

for Their Injuries: A Fresh Look at the Fireman’s Rule,’’ 82 Ind. L.J. 745,

784 n.143 (2007); see also J. Dee, ‘‘Are Homeowners Liable for Rescuers’

Injuries?’’ Hartford Courant, April 2, 1999, p. A1. The legislature did not

pass any legislation in response to this highly publicized incident, however,

and emergency medical personnel are still permitted to bring an action

against a negligent patient, which is in direct contrast to the concurrence’s

assertion. Despite this, we have not seen a significant rise in litigation

regarding negligently injured emergency medical personnel, and there is no

evidence to suggest that a chilling effect on citizens’ request for emergency

medical assistance has occurred. Other jurisdictions have also refused to

extend their respective firefighter’s rules to emergency medical personnel,

and there has not been any apparent deterrent effect for emergency medical

assistance in those jurisdictions. See Sallee v. GTE South, Inc., 839 S.W.2d

277, 278 (Ky. 1992); Kowalski v. Gratopp, 177 Mich. App. 448, 450–52, 442

N.W.2d 682 (1989); Krause v. U.S. Truck Co., 787 S.W.2d 708, 713 (Mo. 1990).