Jim Porter: Are fire fighters immune from lawsuits? | SierraSun.com

Jim Porter: Are fire fighters immune from lawsuits?

Jim Porter
Special to the Sun

TAHOE/TRUCKEE and#8212; In November of 2007, several firefighters were badly burned and one civilian was killed while fighting the 90,000 acre Harris Ranch fire in San Diego County which destroyed more than 450 structures. Hereand#8217;s the story.

Fire at Varshockand#8217;s property

The Varshocks lived in a mobile home atop a remote ridge within the area consumed by the Harris Ranch fire. Thomas and Richard Varshock, father and son, were vacating the home when a California Department of Forestry and Fire Protection engine arrived at the scene. The Varshocks demanded that the firemen and#8220;do somethingand#8221; to save their home. The engine crew proceeded toward the mobile home. Thomas and Richard followed in their ATV, which broke down right behind the fire truck. They pounded on the windows.

Because conditions were too dangerous to leave them outside, the fire captain told Thomas and Richard to get inside. To avoid flames suddenly erupting behind the fire engine, the truck proceeded toward the mobile home.

The fire captain parked alongside the mobile home while the crew sprayed water on a shed and at embers under the mobile home, but when the mobile home became engulfed in flames he instructed his crew to get back in the fire engine. As they tried to back the truck away from the flaming mobile home, the wind directed flames across the engine and it and#8220;died.and#8221; When the windows of the fire engine shattered and flames entered the cab, the fire captain instructed everyone to get out.

Thomas was unable to exit the engine and perished at the scene. Richard and the firefighters survived, but suffered serious burn injuries.

Suit against CAL-FIRE

No good deed goes unpunished, so the Varshocks sued CAL-FIRE, arguing liability based upon Vehicle Code Section 17001: and#8220;A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment.and#8221;

Seems pretty clear. Especially as a retired fireman presented evidence that the fire captain was negligent when he drove the engine toward the mobile home without ensuring there was an adequate escape route or turn around space and parked the engine too close to a structure that was burning.

Fire fighter Immunity

CAL-FIRE defended the Varshocksand#8217; lawsuit citing Government Code Section 850.4, which provides governmental immunity from liability and#8220;for any injury caused in fighting fires.and#8221;

Inconsistent laws

The issue in the case was which law applies, negligent operation of a vehicle or the fire fighting immunity. The fire captain was operating a motor vehicle, allegedly negligently, while fighting a fire. Which seemingly inconsistent law applies? The trial judge ruled for CAL-FIRE. The Varshocks appealed.

Courtand#8217;s interpretation

The Court of Appeal looked at the Legislative intent of the firefighter immunity statute writing: and#8220;The Legislature intended to immunize the conduct of firefighters while at the scene of a fire and actually fighting a fire because imposition of liability in such situations might deter them from making necessary decisions quickly under extremely stressful and dangerous conditions. At the same time, the Legislature intended to except from immunity liability from injuries caused from the tortious (negligent) conduct from firefighters while driving a motor vehicle from another location to the scene of a fire because such conduct is not subject to the same stresses involved in the conduct of actual firefighting operations at the scene of a fire.and#8221;

The Court reconciled the two laws in favor of CAL-FIRE based upon the apparent intent of the Legislature when it wrote those laws.

The Court noted that the fire captainand#8217;s alleged negligence in the operation of the fire engine occurred as part of CAL-FIREand#8217;s efforts to rescue Thomas and Richard and to extinguish the fire raging at their property. The fire captain had to make quick decisions and should be immune from liability from making poor decisions even though he was and#8220;operating a motor vehicle.and#8221;

If the fire engine had driven over the Varshocksand#8217; ATV on the way to the fire, the outcome would have been different.

Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at porter@portersimon.com or at the firmand#8217;s website http://www.portersimon.com.