Cites ‘professional rescuer doctrine’ in court documents
A lawsuit filed against the Okanogan County Electric Co-operative (OCEC) by Daniel Lyon, the firefighter severely burned in the 2015 Twisp River Fire, should be dismissed based on the “professional rescuer doctrine,” which bars professional rescuers from recovering damages for injuries, OCEC is arguing in legal filings.
OCEC contends that “the injuries suffered by Mr. Lyon (burns) fall within the ‘ambit of danger’ faced by a professional firefighter fighting a wildland fire.”
The Douglas County Public Utility District (Douglas PUD), also named in the suit, argues for dismissal on the same grounds. “Being injured in a fire, from the fire itself and the fire’s heat and smoke, is a ‘known, foreseeable risk’ to a firefighter responding to a fire,” said the PUD’s attorneys. “Such conditions are precisely the risk Lyon and his crew anticipated.”
Lyon’s case was initially filed in May 2018 in Okanogan County Superior Court. There is a hearing this week on the motions to dismiss.
In those motions, OCEC and Douglas PUD don’t specifically address the central allegations of Lyon’s lawsuit — that the fire was caused by OCEC’s failure to properly maintain trees growing under its powerlines. Lyon’s lawsuit cites a May 2016 investigation by the Washington Department of Natural Resources (DNR) that concluded the blaze started when tree branches contacted the powerlines in a strong wind, igniting the branches, which in turn ignited dry grass and started the Twisp River Fire.
In its initial (July) response to the lawsuit, OCEC denied Lyon’s factual and legal allegations, including that OCEC owns high-voltage distribution lines in the Twisp River corridor and is responsible for maintaining vegetation there, and that OCEC permitted a tree to grow until it contacted the powerline. OCEC said Lyon’s injuries could have been caused by a third party over which the utility had no control.
But in its October motion for dismissal, OCEC said, “for the purposes of this motion, OCEC does not contest those allegations, as Washington’s Professional Rescuer Doctrine bars Mr. Lyon’s claims under the facts as pled.”
OCEC says the professional rescuer doctrine is sometimes called the “fireman’s rule” because it’s commonly applied in cases where firefighters are injured while fighting fires.
Although most people can recover damages from the party whose negligence created the need for rescue, Washington courts distinguish between ordinary good Samaritans and professional rescuers. Professional rescuers are not permitted to seek compensation from the person whose negligence caused their presence at the scene if the hazards are inherent in the rescue activity.
Washington courts recognize two exceptions to the professional rescuer doctrine. The doctrine doesn’t apply when a rescuer is injured by a “hidden, unknown or extra hazardous danger,” said OCEC, quoting from a Washington Court of Appeals ruling. The other exception is when an injury is caused by negligent acts of intervening parties not responsible for bringing the rescuer to the scene.
“Neither exception to the Professional Rescuer Doctrine applies,” said OCEC in its filing. “Mr. Lyon was a USFS [U.S. Forest Service] Firefighter who was burned while fighting a fire. The danger most associated with fighting fire is being burned,” said OCEC’s attorneys in the motion for dismissal. Lyon didn’t allege that an intervening person or entity caused his injuries, the attorneys said.
Douglas PUD says Lyon shouldn’t be able to create a new exception to the doctrine based on his allegations of gross negligence and recklessness.
Lyon’s suit also fails because OCEC doesn’t meet the definition of a public utility or an electrical company under state law, but is instead “a member-owned, nonprofit cooperative,” said OCEC’s attorneys.
Lyon is the only firefighter to survive the crash and entrapment of a Forest Service engine that went off a steep, curving road in blinding smoke and flames just hours after the Twisp River Fire started in August 2015. Lyon’s three colleagues died when the engine became entrapped in a burnover as they tried to escape.
Lyon’s lawsuit seeks unspecified damages for physical and mental pain and injuries, disability, and loss of earnings.
Douglas PUD is included in the lawsuit because it owns the property where the fire started. Two other defendants, DNR and the Washington Department of Fish and Wildlife (WDFW), were removed from the lawsuit in June.
Other lawsuits were filed last year against OCEC, Douglas PUD, DNR, and WDFW by property owners seeking to recover property losses. In addition, DNR filed a lawsuit against OCEC in 2016 seeking more than $1 million to reimburse its firefighting and investigation expenses. All those suits are still pending.
There is a hearing in Lyon’s lawsuit against OCEC and Douglas PUD on Thursday (Nov. 29) at 2:30 p.m. in Okanogan County Superior Court.
The ‘fireman’s rule’ doctrine explained
The professional rescuer doctrine — or “fireman’s rule” — exists in most states, although its application varies. A case called “Loiland v. State of Washington” reaffirmed the doctrine when it was decided by the Washington Court of Appeals in 2017.
The Loiland case dealt with a complicated chain of events. A Washington State Patrol sergeant stopped to investigate an accident where a vehicle went off the road on an icy state highway. Because the road was so icy, the officer removed the uninjured driver and passenger from the scene and decided not to call a tow truck to remove the vehicle until conditions improved.
But because the sergeant didn’t mark the vehicle with emergency tape, other individuals later called to report the same accident. A firefighter (Loiland) responded and was seriously injured when another vehicle slid — in the same spot — on the icy road and struck Loiland.
Loiland sued the state, claiming that the highway crew had been negligent in not de-icing the road and that the patrol sergeant had been negligent for not flagging the vehicle to indicate it had already been checked. He also sued the drivers of both vehicles.
Even if the state was responsible for Loiland’s injuries by not de-icing the road and not marking the vehicle in the ditch, the professional rescuer doctrine bars recovery from “the one whose sole connection with the injury is that his act placed the fireman or police officer in harm’s way,” ruled the Court of Appeals.
“The general rule in Washington is that a person who is injured while rescuing another may recover from the party whose negligence created the need for rescue,” said the court. “However, because professional rescuers assume certain risks as part of their profession, the general rule does not apply. When a professional rescuer is injured by a known hazard associated with a particular rescue activity, the rescuer may not recover from the party whose negligence caused the rescuer’s presence at the scene.”