Jim Porter: Firefighter immunity, yes or no?
September 24, 2015
Nathan Puskar was a forest ranger at Yosemite National Park. He lived in a cabin owned by the City and County of San Francisco.
All of the cabins had fire extinguishers that were regularly collected and exchanged, normally within a single day. (I think they were cabins, the Opinion said "residences" but that's too legalese.)
However, on the day in question, October 22, 2011, San Francisco had removed the fire extinguisher in Puskar's cabin and had not yet returned its replacement.
Puskar was cooking in his kitchen when oil in a skillet on the stove caught fire. He ran to get the fire extinguisher but it was not there, having been picked up a month earlier.
He tried to smother the flames with a baking sheet, then grabbed the skillet with an oven mitt and tried to throw the pan out the door but the door was on a spring.
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It swung back and hit the pan, burning Puskar's hand. Then the pan hit the stairs and splashed burning grease on his back. Puskar was severely burned.
Call 1-800 Portersimon
What does a person do who is burned as a result of an oil fire on his stove? You know the answer: Call 1-800 Portersimon.
The City and County of San Francisco, landlord, was sued for negligence for failing to keep a fire extinguisher in the residence, constituting a "dangerous condition of public property."
Public Entity Liability
Faithful readers of the Law Review, both of you, know that as a general rule governments and public entities are immune from liability.
One could interpret that to mean it's okay in California for the government to be irresponsible, but I'm not saying that. I'm just saying.
A public entity is liable only if a statute (code) specifically recites that it is liable. For example, a public entity is liable for injuries caused by a dangerous condition of its property if the injury was reasonably foreseeable and the injury was caused by the dangerous condition.
One could argue that the failure to maintain a fire extinguisher at the Yosemite cabin constitutes a dangerous condition making San Francisco liable. Not so fast folks.
We appreciate and love our firemen. Especially this year in light of California's forest fires. Firemen risk their lives for us.
What if a fireman carelessly runs out of water or absentmindedly forgets the hose connector or races to save the wrong house or otherwise is negligent in performing his/her duties?
Answer: Section 850.2 of the Government Code comes to the rescue: "Neither a public entity that has undertaken to provide fire protection service, nor an employee of such a public entity, is liable for any injury resulting from the failure to provide or maintain sufficient personnel, equipment or other fire protection facilities."
What does that have to do with Puskar's claim you ask? That's what Puskar asked.
Government Not Immune
Puskar argued that while public entities enjoy general immunity from lawsuits for performing government-type services like preventing crimes and putting out fires, they should have liability when acting like private citizens: running electric plants and water systems, managing public garages and airports … and renting out cabins in Yosemite National Park.
Ruling for City
The Fifth District Court of Appeal seemed to have an easy time ruling for the City and County of San Francisco and against Puskar, finding the decision to equip the Yosemite cabin with a fire extinguisher was a policy decision, and even if San Francisco was negligent in removing and failing to replace the fire extinguisher, that operational negligence falls within the scope of the firefighter's broad immunity in Government Code 850.2. Makes sense to me.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim's practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.
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