What Is the Difference Between Invitee and Licensee ?
The original rationale behind the rule focused on the common law difference between an invitee and licensee, distinguishing the two for the purpose of defining a landowner's duty toward each. Hopkins v. Medeiros, 48 Mass. App. Ct. 600, 724 N.E.2d 336, 341 (Mass. App. Ct. 2000).
Historically, a firefighter was classified as a "licensee" to whom a landowner owed only a duty to warn of hidden dangers or positive wrongful acts, as opposed to injuries caused by the landowner's negligence in starting a fire. See Hack v. Gillespie, 74 Ohio St. 3d 362, 658 N.E.2d 1046, 1049 (Ohio 1991); Aetna Cas. & Sur. Co. v. Vierra, 619 A.2d 436, 437 (R.I. 1993).
The distinction between licensee and invitee has long been abandoned by most jurisdictions, including Maine, and can no longer serve as an underpinning of the rule. Poulin v. Colby College, 402 A.2d 846, 850-51 (Me. 1979) (owner owes same duty of reasonable care to all persons lawfully on his or her land).
In some jurisdictions, the firefighter's rule survived the elimination of the licensee/invitee distinction. Courts substituted more modern rationales for utilizing the rule.
One of those is the cost-spreading rationale.
The theory is that since taxpayers pay firefighters' salaries and spread the risk of their injury throughout the community by funding workers' compensation 1 and fringe benefits, those firefighters should not be able to sue the taxpayers for their negligence. See Gibbons v. Caraway, 455 Mich. 314, 565 N.W.2d 663, 665-66 (Mich. 1997); Vierra, 619 A.2d at 438 (quoting Berko v. Freda, 93 N.J. 81, 459 A.2d 663, 666 (N.J. 1983).
This rationale is not compelling. Expecting a firefighter's salary to adequately compensate him for actual serious injury while performing that job is unjustified. See Walters v. Sloan, 20 Cal. 3d 199, 571 P.2d 609, 619, 142 Cal. Rptr. 152 (Cal. 1977) (Tobriner, J., dissenting).
Another rationale is assumption of the risk, based on the idea that the plaintiff firefighter impliedly waived the duty of care owed to him or her.
This has also been rejected. Christensen v. Murphy, 296 Ore. 610, 678 P.2d 1210, 1217-18 (Or. 1984) (overruling the firefighter's rule, based in part on fact that state had abolished doctrine of implied assumption of the risk, eliminating theoretical underpinning of the rule).
Another justification, that taxpayers would be reluctant to call firefighters if they were afraid that they would be sued for their negligence, has been rejected. See id., citing W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 61, at 431 (5th ed. 1984) ("the argument... that tort liability might deter landowners from uttering such cries of distress, is surely preposterous rubbish").
Even jurisdictions that adhere to the rule have carved out an exception for independent acts, intentional acts, wilful, wanton, or reckless conduct in order to mitigate the rule's harshness. See Hopkins, 48 Mass. App. Ct. 600, 724 N.E.2d 336, 342 n.14. Rhode Island has refused to apply the rule in a non-emergency situation. Labrie v. Pace Membership Warehouse, Inc., 678 A.2d 867, 869-70 (R.I. 1996).