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Recovery Barred Under Fireman’s Rule

A volunteer firefighter whose arm was injured by shrapnel when he was assisting in extinguishing a fire caused by a gas absorption refrigerator manufactured by defendant and placed in an owner’s Winnebago, cannot recover from the manufacturer; plaintiff has not shown that defendant manufacturer showed “willful and wanton” conduct that would exempt him from the Virginia Fireman’s Rule, says an Alexandria U.S. District Court.

Refrigerator fire

Defendant Norcold admits that an identified feature – fatigue failure of corrosion in the boiler tube of the refrigerator that leaks hydrogen gas – is a product defect. It appears, however, that corrosion is impossible to control completely in this sort of gas absorption refrigerator, and plaintiff has not produced any evidence of a commercially available absorption refrigerator that has completely negated the problem of corrosion. Norcold has issued seven product safety recalls and retrofit campaigns as a result of customer complaints that it received.

In October 2010, two days after receiving a recall notice, the Winnebago owner brought his refrigerator to be fitted with a high temperature sensor (HTS). The recall kit was installed by a company called Restless Wheels in Virginia. After the installation, the owners did not experience any issues with their RV or their refrigerator until 2015. On a trip to a race in Talladega, the refrigerator stopped cooling and the owner called a technician who stated he worked on Norcold refrigerators. The technician replaced a fuse in the refrigerator. Thereafter, the refrigerator functioned without issues until the fire on Aug. 2, 2015.

Plaintiff firefighter has sued for breach of the implied warranty of merchantability and willful and wanton conduct that amounts to an intentional tort giving rise to exemplary damages under Virginia law. The question here is whether plaintiff is eligible to recover from defendants notwithstanding the Virginia Fireman’s Rule? The answer to that question turns on whether defendants’ actions rise to the level of “willful or wanton” conduct. Because defendants’ conduct does not meet that high standard, plaintiff is barred from recovery.

Fireman’s Rule

The Fireman’s Rule is a common law rule that eliminates a defendant’s liability for negligent conduct that injures certain public officials performing their duties. The Virginia Supreme Court has held that the Rule does not apply to intentional torts.

Although the Virginia Supreme Court has not explicitly held as much, analogous case law and sound logic both support the fact that the Rule applies equally to breach of warranty or products liability claims. In light of the considered precedent, the court concludes that plaintiff falls outside the scope of the class of permissible plaintiffs under Va. Code § 8.2-318. Plaintiff was not a user, purchaser or beneficiary of the Norcold refrigerator. He did not derive any benefit whatsoever from the refrigerator and never engaged in any relevant commercial interaction with Norcold. Instead, plaintiff arrived at the scene only after the refrigerator had allegedly malfunctioned and caused the fire. Plaintiff did not interact with the refrigerator as a consumer; he interacted with the fire as a public official.

As to willful and wanton conduct, plaintiff suggests defendants knew their recalls were not working and that fires could happen even with the installation of the HTS. According to plaintiff, the refrigerators are not safe as long as the defect in the tubing exists. The court finds these facts do not satisfy plaintiff’s burden of showing willful or wanton conduct. In products liability cases where defendants took some, but perhaps insufficient action, courts have consistently declined to find willful or wanton conduct.

Summary judgment for defendant based on the Fireman’s Rule.

Runnels v. Norcold Inc. (O’Grady) No. 1:16cv713, March 24, 2017; USDC at Alexandria, Va.; David C. Hartnett for plaintiff; Martin A. Conn for defendant. VLW 017-3-135, 21 pp.

VLW 017-3-135