Injured firefighter asks for repeal or exception to rule
Daniel Lyon, the firefighter gravely burned in the 2015 Twisp River Fire, calls a state law “outdated and unjust” because it prevents professional firefighters from suing for damages. Lyon’s attorneys want what’s known as the professional rescuer doctrine to be overturned.
Lyon filed his appeal against the Okanogan County Electric Co-operative (OCEC) and the Douglas County Public Utility District (PUD) in the state Court of Appeals this summer.
Lyon presents the court with several options: to abandon the professional rescuer doctrine or to strike it down as unconstitutional because it denies equal protection to an entire class of people — that is, professional firefighters and rescuers. If the court doesn’t overturn the doctrine, it should add an exception to the law so that firefighters can sue for damages, Lyon’s attorneys argue.
The appeal goes beyond the case in Okanogan County Superior Court. In oral arguments in Superior Court in November, attorney James McCormick, then representing Lyon, didn’t ask the courts to overturn existing law. He said the court should create an exception allowing a professional rescuer to sue when conduct goes “beyond ordinary negligence.”
But the appeal asks the court to scrap the doctrine entirely or declare it unconstitutional. If the court doesn’t overturn the law, it should carve out a new exception that would allow professionals like Lyon to sue, attorney-for-the-appeal Kenneth Masters said.
There are currently two exceptions to the professional rescuer doctrine. One says the doctrine doesn’t apply when a rescuer is injured by a hidden, unknown or extra-hazardous danger. The other exception is when an injury was caused by negligent acts of intervening parties who weren’t responsible for bringing the rescuer to the scene in the first place. OCEC and the Douglas PUD contend that neither applies in Lyon’s case.
Okanogan County Superior Court Judge Chris Culp dismissed Lyon’s lawsuit in November, granting motions filed by OCEC and the PUD. Noting that the Washington Supreme Court created the professional rescuer doctrine more than 40 years ago and never overturned it, despite numerous challenges, Culp said he’s bound to follow the high court’s ruling. The state Legislature hasn’t passed any laws changing the professional rescuer doctrine either, Culp said.
The original rationale of the professional rescuer doctrine is twofold, according to Masters’ brief. Professional rescuers assume hazards that voluntary rescuers do not assume, and professionals are compensated for accepting those risks. But many states — including those Washington’s law is based on — have abandoned the professional rescuer doctrine or added significant exceptions because the doctrine is out of sync with modern notions of redress and equal treatment, Masters argued.
Employees including construction workers and convenience-store clerks confront risk of injury or death in their jobs. But these workers can sue for injuries caused by negligence, Masters wrote.
“It is simply untrue that professional rescuers necessarily assume risks ordinary rescuers do not. Simply stated, an ordinary rescuer who runs into a burning building to help a friend or neighbor escape assumes the same risk as a professional firefighter arriving at the scene…. The fellow skier attempting to dig [a skier out of an avalanche] assumes the same risk as the professional ski patrol,” Masters said in the appeal.
Lyon first sued OCEC and the PUD in May 2018, alleging that OCEC’s failure to maintain trees near its powerline caused the Twisp River Fire.
A 2016 investigation by the Washington Department of Natural Resources found OCEC hadn’t followed its own policy for maintaining vegetation under a powerline, allowing the branches to rub against the powerline, which created sparks and ignited the blaze. OCEC operates the powerline and the PUD owns the land where the fire started.
Lyon suffered burns over 70% of his body when he escaped a fire engine that went off the road in blinding smoke and flames just hours after the fire started. The three other firefighters in the engine died in an entrapment after the crash.
Lyon seeks unspecified damages for physical and mental pain and injuries, disability, and loss of earnings.
The appeals court will consider all the arguments presented, not simply rule on the lower-court decision. OCEC and the PUD haven’t submitted their responses to Lyon’s filing yet. No date has been set for a hearing.