KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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When is Workers Comp insurance not enough
May 27, 2026
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When is Workers Comp insurance not enough
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Ken
I was under the impression that having Workers Com insurance, which is required by law, was enough to cover you should an accident occur. I was also under the impression that emergency workers, Fire/Police, during the course of doing their job are covered by Workers Comp as well. Remember your Workers Comp policy only applies to your covered employees, not third parties and not employees you have, likely improperly, excluded from coverage.
I have a client that has a building with a fire alarm in Queens NY. About a year ago the fire alarm was activated from a smoke detector in the lower lever. The fire department responded and in the course of the response several firemen entered the building while the business was open. They proceeded to the basement via the stairwell and in doing so one of the firemen slipped and fell. He received an injury to his knee and was treated at the scene and taken to a local hospital for additional treatment.
Last month I received a summons because it seems the fireman, through his attorney, is looking to cash in on the landlord of the building, the tenant and of course the alarm company that takes care of the fire alarm. I turned the claim over to our E&O carrier and they are defending the case but I don't understand how a fireman who works for the City of New York and is covered by Workers Comp and the City's own coverage can do this.
Can you enlighten me?
Name Withheld
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Response
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I'm not a workers comp legal expert but I do have an answer for you. Simply, a fireman [and police] can sue someone if they are hurt in line of duty and the sued party has violated a law or code [like a building code or traffic law] or if the sued party is negligent. The fireman cannot sue the municipality; and cannot sue if the injury is within the line of duty and there is no violation of law or negligence.
There have been cases against alarm companies where the fireman or police have claimed that the alarm was false and should have lead to a dispatch; I don't think those suits have been successful, though the way the injury occurred could mean someone is liable; it's usually the property owner. I recall a case where the police officer's leg went through a rotted wood step; could also be steps that do not meet code or no railing or insufficient lighting in a stairwell. When the alarm company is sued along with the property owner it's essential that you have the K&K Contract and that you left the Indemnity Clause or the Insurance Procurement clause intact; that will get you out of the case or at least get the case handled by your subscriber at no cost to you or your carrier, saving you from a negative loss run mark with all the consequences that come with that.
Here is more, curtesy of AI:
In New York, the "fireman’s rule" traditionally prohibited firefighters from suing for injuries caused by the negligence of others while in the line of duty, based on the principle that they assumed the risks of the profession. However, this rule has been largely abolished by statute, enabling firefighters to sue for damages caused by negligence or safety violations.
General Obligations Law § 11-106: Passed in 1996, this law gives firefighters the right to sue for general negligence if their injuries occur in the line of duty.General Municipal Law (GML) § 205-a: Allows firefighters to sue if an injury was caused (directly or indirectly) by someone's failure to comply with federal, state, or city statutes, codes, or regulations.
Exceptions (Where Lawsuits are Barred): The rule still generally bars lawsuits against the fire department itself (the municipality) or fellow employees for negligent acts, unless a specific, immutable safety rule was violated. Worker’s Compensation: Unlike most employees, NYC firefighters are not covered by Workers’ Compensation, making the right to file these statutory lawsuits crucial for compensation. www.firelaw.com
Actionable Scenarios
Can Sue: If a building owner's code violation (e.g., missing fire suppression systems) causes an injury, a suit can be filed under GML § 205-a.
Cannot Sue: Generally, you cannot sue the city for injuries sustained due to typical hazards, such as ceiling collapses in a burning building, as that is considered part of the job
The application of the "fireman’s rule" (also known as the Professional Rescuer's Doctrine) varies significantly across the United States. While New York has largely abolished it by statute, other states follow different paths—either fully abolishing it, maintaining it, or applying unique exceptions. States that Have Abolished the Rule In these states, first responders generally have the same right as private citizens to sue for injuries caused by negligence in the line of duty.
States that Have Abolished the Rule. In these states, first responders generally have the same right as private citizens to sue for injuries caused by negligence in the line of duty.
These states have either completely struck down the rule by statute or court decision, or they have created broad exceptions that allow for negligence lawsuits.
New Jersey: Fully abolished the rule by statute and supreme court ruling, granting responders the same rights as other citizens to sue for injuries caused by careless property owners.
Massachusetts: The rule began to erode in the 1970s; courts now generally hold that property owners owe a duty of "reasonable care" to all lawful visitors, including firefighters.
Pennsylvania: Courts have largely declined to apply the rule, viewing firefighters as "licensees" who are owed a duty of care by landowners.
Minnesota: Peace officers are specifically exempted from the rule by state statute.
South Carolina: Does not follow the traditional fireman's rule for first responder personal injury cases.
States Where the Rule Still Applies (with Exceptions)In these jurisdictions, the rule generally bars lawsuits for injuries caused by the very hazard the responder was called to address, unless a specific exception—like willful misconduct—is met.
California: Maintains a strong application of the rule, though it is inapplicable if the negligent conduct occurred after the defendant knew of the responder's presence.
Georgia: Generally bars claims unless the injury was caused by a "willful and wanton act" or an extrinsic act unrelated to the emergency response.
Iowa: Holds that neither firemen nor policemen can recover for injuries caused by the "very wrong" that required their presence.
Ohio: Applies the rule unless the injury resulted from the owner's "willful or wanton misconduct".
Nevada: Follows the rule but has specific statutory exceptions that allow lawsuits against suspects in certain scenarios.
Connecticut and Tennessee: Both maintain the rule on the grounds that responders are trained to handle—and thus "assume"—the inherent risks of their employment.
Common Exceptions Across All States Even in states that still follow the rule, lawsuits are often permitted if:
Willful or Wanton Conduct: The defendant intentionally caused the harm or acted with extreme recklessness.
Failure to Warn: The owner knew of a hidden, non-obvious danger (like toxic chemicals) and failed to warn the responder.
Statutory Violations: The injury was caused by a violation of a specific safety code or fire regulation (similar to New York's GML § 205-a).
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com
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