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ATTORNEY FOR APPELLANTS Michael P. Maxwell, Jr. Indianapolis, Indiana

ATTORNEY FOR APPELLEES John F. Townsend, III Indianapolis, Indiana

______________________________________________________________________________

In the

FILED
of the supreme court, court of appeals and tax court

Dec 15 2009, 10:49 am

Indiana Supreme Court
_________________________________ No. 49S05-0905-CV-214 BABES SHOWCLUB, JABA, INC. AND JAMES B. ALTMAN,

CLERK

Appellants (Defendants below), v. PATRICK LAIR AND LISA LAIR, Appellees (Plaintiffs below). _________________________________ Appeal from the Marion Superior Court, No. 49D01-0709-CT-040299 The Honorable David Shaheed, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-0805-CV-262 _________________________________ December 15, 2009 Boehm, Justice. In this case a police officer responded to a complaint of an unruly patron at a nightclub and was assaulted by the patron. The officer sued the club for negligence in failing to maintain adequate security. We hold that the fireman's rule bars recovery by a professional emergency responder for the negligence that created the situation requiring the response. Facts and Procedural History On November 30, 2005, Patrick Lair, an Indianapolis police officer, responded to a report of an unruly customer at Babes Showclub, an adult entertainment business. Lair claims that shortly after he arrived, he was injured in an assault by an underage male who had been consum-

ing alcohol at Babes. Lair sued Babes Showclub and related defendants, (collectively, Babes)1 alleging that Babes maintained a nuisance and was negligent in failing to provide adequate security. Lair also alleged that Babes's violation of Dram Shop laws and statutes prohibiting the sale of alcohol to minors caused his injuries. He sought medical expenses, lost income, and compensation for pain, suffering, and mental anguish. His wife, Lisa Lair, sued for lost services and consortium. Babes filed a motion to dismiss for failure to state a claim on which relief could be granted, citing Indiana's fireman's rule. The trial court denied Babes's motion but certified its order for interlocutory appeal. The Court of Appeals reversed, holding that the fireman's rule precluded any recovery by Lair. Babes Showclub v. Lair, 901 N.E.2d 44, 62 (Ind. Ct. App. 2009). We granted transfer. Standard of Review A motion to dismiss for failure to state a claim tests the legal sufficiency of the claim, not the facts supporting it. Charter One Mortgage Corp. v. Condra, 865 N.E.2d 602, 604 (Ind. 2007). Review of a trial court's grant or denial of a motion based on Trial Rule 12(B)(6) is therefore de novo. Id. When reviewing a motion to dismiss, we view the pleadings in the light most favorable to the nonmoving party, with every reasonable inference construed in the nonmovant's favor. City of New Haven v. Reichhart, 748 N.E.2d 374, 377 (Ind. 2001). A complaint may not be dismissed for failure to state a claim upon which relief can be granted unless it is clear on the face of the complaint that the complaining party is not entitled to relief. Id. (citing McQueen v. Fayette County Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999), trans. denied). I. The Fireman's Rule Both Lair and Babes ask us to reconsider aspects of the fireman's rule in Indiana, and both rely on a series of prior Indiana decisions.

1

The scant record in this case does not reveal the relationship between Babes Showclub and the other defendants, except insofar as the appellants' brief describes James Altman as the owner of Babes Showclub.

2

A. Indiana Precedent The fireman's rule was initially established in Indiana in 1893 by this Court's decision in Woodruff v. Bowen, 136 Ind. 431, 34 N.E. 1113 (1893). In that case, a firefighter died fighting a fire in a building in downtown Indianapolis. We held that the property owner had no liability to the firefighter for injuries incurred in responding to a fire caused by the owner's negligence. Id. The owner was aware that structural deficiencies rendered the building unsafe. We held that the owner nevertheless had no liability for the firefighter's death, even if the fire was attributable to the owner's negligence or to violation of a city safety ordinance. The Court looked to commonlaw premises liability in addressing the general negligence claim and determined that the firefighter, as a licensee,2 was owed only the duty of abstaining from positive wrongful acts. The Court found that a city ordinance requiring property owners to maintain their premises safely was not enacted to protect firefighters, and for that reason rejected liability based on violation of the ordinance. Id., 136 Ind. at 441

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