Hannah v. Jensen , 298 N.W.2d 52 ( 1980 )

PETERSON, Justice.

Plaintiff, Delbert Hannah, a St. Cloud city police officer, sued defendants Robert N. Jensen, Chmielewski, Inc., and The Red Carpet Bar, Inc., for injuries inflicted upon him by Jensen, who had become intoxicated in bars owned by Chmielewski and The Red Carpet. Plaintiff appeals from the order and judgment of the district court dismissing his claim against the bar owners on the ground that the “fireman’s rule” precluded him from recovering from the bar owners under either common-law negligence¹ or the Minnesota Liquor Liability (Dram Shop) Act, Minn.Stat. § 340.95 (1976). We affirm.

Hannah was injured by Jensen on August 21, 1976, outside the Office Bar, which is owned and operated by Chmielewski. According to Hannah’s uncontested statement of the facts, Jensen had begun drinking at approximately noon and continued drinking throughout the day at bars owned by Chmielewski and The Red Carpet. Sometime after 8 p.m., Jensen was involved in a fight at the Office Bar and was removed by two police officers to the St. Cloud Police Department but was released 15 minutes later. Shortly after his release, Jensen returned to the Office Bar, where he entered into an altercation with the bartender. An employee of the bar summoned Hannah, who was on duty as a police officer at the time. Hannah entered the bar and escorted Jensen outside, where a scuffle ensued and Hannah was injured.

We held in Armstrong v. Mailand, 284 N.W.2d 343 (Minn.1979), that the doctrine of primary assumption of risk relieves landowners of their duty of reasonable care toward firemen with respect to risks that could reasonably be anticipated as a part of firefighting. Relying on this “fireman’s rule,” the trial court in the instant case concluded

that the Dram Shop Law * * * was enacted to protect member of the general public but that it does not protect police officers from injury when, in their official capacity, they knowingly assume the risk in a primary _ sense and where the violation of Statute creates the very occasion for their involvement.

Thus, the sole issue raised by this appeal is whether the trial court correctly applied the fireman's rule to preclude a police officer, injured in the performance of his duties by an intoxicated person, from recovering from a bar owner under the dram shop act.

The 1976 language of § 340.95 provided:²

Every husband, wife, child, parent, guardian, employer, or other person who is injured in person or property, or means of support, by any intoxicated person, or by the intoxication of any person, has a right of action, in his own name, against any person who, by illegally selling, bartering or giving intoxicating liquors, caused the intoxication of such person, for all damages, sustained; and all damages recovered by a minor under this section shall be paid either to such minor or to his parent, guardian, or next friend, as the court directs; and all suits for damages under this section shall be by civil action in any court of this state having jurisdiction thereof.

The statute imposes strict liability on the part of a defendant bar owner. Hannah therefore argues that the fireman’s rule rationale of primary assumption of risk should not apply in a dram shop action.

It is true that the fireman’s rule cannot be invoked where the statute upon which the action is based imposes absolute liability upon the defendant. In such a statute, the public policy holding the defendant responsible is so strong that a plaintiff’s conduct should not be a consideration. Armstrong v. Mailand, 284 N.W.2d at 351. However, § 340.95 does not protect intoxicated persons injured as a result of their own intoxication, so the statute cannot be said to impose absolute liability. See Zerby v. Warren, 297 Minn. 134, 139-40, 210 N.W.2d 58, 62 (1973). On the other hand, we held in Armstrong that the fireman’s rule is available in cases based upon strict liability, and a dram shop action would fall within that category.

The question, then, is whether police officers are within the class of persons that § 340.95 was designed to protect. We conclude that they are not. A police officer certainly can anticipate that an intoxicated person, whom the officer is called to subdue, may become aggressive or even violent. The risk of injury from such a person is an inherent part of police work, just as the danger of explosion is an inherent part of firefighting. In performing his official duties, Hannah manifested his consent to assume the risks he could reasonably anticipate would accompany those duties. Therefore, the rationale of the fireman’s rule clearly applies to this case.³

Considerations of public policy further support this conclusion. If police officers are allowed to recover under the statute, bar owners might be inhibited from summoning the police for aid in disturbances and, instead, would resort to self-help measures, creating additional risk to the public. It would not be in the public interest to discourage bar owners from calling upon those who are trained and employed to deal with these situations.

We hold, therefore, that the fireman’s rule does apply to bar recovery by police officers in 'dram shop actions where the injuries resulted from risks reasonably anticipated in the course of the officers’ duties. The order and judgment of the district court dismissing Hannah’s claims against defendants Chmielewski and The Red Carpet are accordingly affirmed.

Affirmed.

AMDAHL, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

1 . Although the trial court ruled on plaintiff’s common-law negligence claim, no argument on the issue is raised in the appellate briefs. In Robinson v. Lamott, 289 N.W.2d 60 (Minn.1979), we ruled that the dram shop act is the exclusive remedy against liquor vendors and a common-law action is not available. Consequently, it is unnecessary to address the common-law negligence claim.

2 . The statute was amended by 1977 Minn. Laws, ch. 390, but the amendments apply only to causes of action arising on or after July 1, 1977.

3 . Other jurisdictions that have considered this issue have denied to police officers recovery under dram shop acts. Walters v. Sloan, 20 Cal.3d 199, 571 P.2d 609, 142 Cal.Rptr. 152 (1977), cited in Armstrong, 284 N.W.2d at 349; Weaver v. O’Banion, 359 So.2d 706 (La.Ct. of App. 1978).