Existing law precludes injury claims by firefighters, court rules
It’s up to the state Supreme Court to decide whether a firefighter is entitled to a jury trial to seek compensation for injuries sustained fighting a blaze.
That was the ruling by Okanogan County Superior Court Judge Chris Culp when he granted two motions to dismiss a lawsuit filed by Daniel Lyon, the U.S. Forest Service firefighter gravely burned in the 2015 Twisp River Fire.
Culp issued his ruling on Thursday (Nov. 29) after hearing oral arguments from attorneys for the defendants, Okanogan County Electric Co-operative (OCEC) and the Douglas County Public Utility District (Douglas PUD), who argued that Lyon isn’t entitled to sue for damages because of what’s called the professional rescuer doctrine. The doctrine bars professional rescuers from seeking compensation from the party whose negligence was the reason they responded to an incident if the hazards are inherent in the rescue.
Culp said he didn’t have much choice other than to grant the motions to dismiss the case. “I don’t do this lightly,” he said, noting that he had read accounts of Lyon’s injuries and that everyone in the court has gratitude for his efforts and wishes him the best.
But Lyon’s attorneys argued that the circumstances of the Twisp River Fire mean the professional rescuer doctrine doesn’t apply. Lyon isn’t asking the courts to overturn existing law, but instead to enunciate an exception that allows a professional rescuer to sue when conduct goes “beyond ordinary negligence,” said his attorney James McCormick of Evergreen Personal Injury Counsel.
“There should be no immunity for culpable conduct beyond ordinary negligence,” said McCormick. “No rescuer should have to assume that level of risk.”
Unlike situations that would be uniquely hazardous, such as a blaze near a nuclear facility or a dynamite plant, the Twisp River Fire doesn’t meet the test of an ultrahazardous situation for a firefighter, said OCEC attorney Grant Lingg of Forsberg & Umlauf. In this case, flames, heat and smoke are foreseeable risks, said the defense attorneys.
A 2016 investigation by the Washington Department of Natural Resources (DNR) found OCEC hadn’t followed its own policy for maintaining vegetation under a powerline. That allowed the trees to grow so tall that they came into contact with the powerline, creating sparks and starting the blaze, concluded DNR. That is conduct beyond ordinary negligence, said McCormick.
Lyon sued OCEC and Douglas PUD in May, alleging that OCEC’s failure to maintain the trees caused the Twisp River Fire. He seeks unspecified damages for physical and mental pain and injuries, disability, and loss of earnings. Douglas PUD is named in the suit because it owns the land where the fire originated.
Unconstitutional?
Although the doctrine is intended to avoid discouraging individuals from calling for help in an emergency for fear of legal reprisals, a complete ban on seeking compensation for damages is unconstitutional, said McCormick.
Barring Lyon from seeking a trial to determine compensation for his injuries violates the equal protection clause because it denies rights to firefighters, police officers and other professional rescuers that are available to other citizens, said McCormick. Numerous homeowners — and even the state of Washington — are suing to recover their losses, while Lyon is prevented from seeking the same remedy, he said.
Washington courts have established two exceptions to the doctrine, but OCEC and the PUD say neither applies in this case. The doctrine doesn’t apply when a rescuer is injured by a hidden, unknown or extrahazardous danger. The other exception is when an injury is caused by negligent acts of intervening parties not responsible for bringing the rescuer to the scene.
Some version of the professional rescuer doctrine exists in most states, although some states have added exceptions or eliminated the ban entirely, according to the attorneys for OCEC and the PUD.
Matter for high court
Washington’s professional rescuer doctrine was created by the Supreme Court more than 40 years ago and, although it’s been challenged on multiple occasions, the court has repeatedly declined to overturn or vacate it, said Culp.
“So, today, it’s binding precedent on this Superior Court,” said Culp. “I have an obligation to follow it, whether I agree with it or not.”
Culp commended all the attorneys for effectively outlining issues regarding the professional rescuer doctrine. But Lyon’s argument that the doctrine denies him his Constitutional rights needs to be made to the Supreme Court, he said.
“The Supreme Court created this doctrine. It’s not appropriate for me to tell the Supreme Court their doctrine is unconstitutional,” said Culp.
Culp also noted that in more than 40 years Washington’s Legislature has not passed any laws changing the professional rescuer doctrine.
Observing that severe fires are becoming the norm, Culp expressed gratitude for Lyon and all wildland firefighters. “These people face this risk every day — but that’s what they sign up for,” he said.
“It’s an interesting, interesting question. It’s an unfortunate situation; we can all agree on that,” said Culp. “It’s one on which clearly this court’s decision may not be the last. The ultimate decision will be in the hands of the Supreme Court or the state Legislature.”
Lyon’s attorneys indicated they would most likely petition the Supreme Court to hear the case directly, bypassing the Court of Appeals.
Multiple lawsuits concerning the Twisp River Fire have been consolidated with Lyon’s case. They include claims by property owners against OCEC, Douglas PUD and the Washington Department of Fish and Wildlife for property damage; by insurance companies seeking reimbursement for benefits they paid to their policy holders; and a lawsuit by DNR seeking more than $1 million from OCEC to reimburse its firefighting and investigation expenses. Half-a-dozen attorneys for these parties participated in the oral arguments via a phone link.
