The Cosmillo family thought that it had faced the worst when 1-year-old Joey Cosmillo fell into the family pool and, when pulled out, was not breathjng. Rescuers brought him back to life but he had already suffered severe brain damage. The family, however, was in for another shock when one of the police officers sued them for a fall on their property.

The officer, Casselberry police Sgt. Andrea Eichhorn, claims that the family left a puddle of water on the floor during this crisis that that she slipped on water. Eichhorn has sued Richard Cosmillo; his wife, Maggie Cosmillo; and the boy’s mother, Angela Cosmillo, accusing them of negligence. She claims that the injury kept her off the job for two months. Even though she received worker’s compensation, she insists that it is not enough. In the meantime, Joey lives in a nursing home with 24-hour care and breathes through a tube. He’s fed through another.

Eichhorn believes the family is still at fault regardless of the crisis. The mother was the only person at home when the boy went into the pool.

The puddle was likely caused by her effort to pull him out of the pool and into a room for care. Eichhorn now wants an unspecified amount of money and insists that she is the victim because she fears that she could develop arthritis in addition to her initial injury.

Her attorney, David Heil, is making the loose arguments of causation to advance this weak case. He reportedly is arguing that, paraphrased in the article below, “if the Cosmillos had made their pool baby-proof, police would not have been called to the scene, there would have been no water on the floor, and Eichhorn would not have hurt herself.” It is one of the weakest and seemingly abusive legal claims that I have witnessed in my career.

Under the common law, police and fire fighters were once barred from such lawsuits under the so-called fireman’s rule or police officers rule. They were not treated as invitees, but closer to licensees. Under the firefighter’s rule, police officers and firefighters who enter a property in performance of their duties where treated as a licensee, a lower standard than the one applied to an invitee. See Roberts v. Rosenblatt, 146 Conn. 110 (1959), and Furstein v. Hill, 218 Conn. 610 (1991). Thus, officers were barred from negligence claims for injuries in the course of their duties relating to risks that could be reasonably anticipated as part of those duties, such as slipping on the ice. Krajewski v. Bourque, No. 2000-98-Appeal, 782 A.2d 650 (R.I. 2001).

Eichhorn’s lawsuit on its face shocks the conscience and may force a reconsideration of the modern movement away from the Fireman’s Rule. For the full story, click here It is also a case that demands review for potential sanctions and early dismissal.