To Serve, Protect and Sue: NH Supremes Say Injured Firefighter Can Sue Homeowner

25 Feb, 2012 Bob Wilson

If your house catches fire in New Hampshire, be sure to clear the ice off your driveway before you call the volunteer fire department. May want to make sure the yard is free of clutter, and tidy up the house while you're at it. Because the firefighters who save your home may be able to take it if they happen to hurt themselves in the process.

Friday the New Hampshire Supreme Court reversed an earlier court decision, saying a volunteer firefighter injured on a call can sue the homeowner where the injury occurred. Jason Antosz, a volunteer firefighter with the Epping Fire Department, responded to a fire at Doree Allain's home in January 2008. He slipped and fell on her driveway, which was covered in ice. 

An icy driveway is very rare in the tropical climate that New Hampshire is famous for. 

Antosz and his wife sued Allain, saying the driveway was unsafe. The original judge in the case agreed with Allain, who argued that state law regarding firefighters' on the job injuries barred Antosz from suing. The State Supreme Court, however, says the "plain language of the law" allows Antosz to sue, and has cleared the way for his suit to proceed. In New Hampshire, volunteers who are permanently disabled in the line-of-duty are eligible for compensation. The average weekly wage for a volunteer is considered to be the amount that entitles the volunteer to the state's average weekly wage as a maximum benefit. New Hampshire also has some fairly generous definitions for both their paid and volunteer firefighters. Section 281-A:17 of the New Hampshire statutes provides a prima facie presumption that heart or lung disease or cancer, in a regular, call, volunteer or retired member of a fire department is occupationally related. 

The statute says nothing about if you fall down and go boom.

There is something unsettling in all of this, knowing that people you believe you can count on in an emergency can actually make your situation worse. I get that the firefighter was a volunteer. I can see that the injury could interfere with his ability to make a living. However, an icy driveway in the northeast is not necessarily a product of negligence that one might assume would result in a legitimate suit. And it is not clear to me that benefits were unavailable to him. Bottom line, volunteers take some risks. 

Perhaps if you can't take the fall, you shouldn't take the call.
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