Lyon contends he can sue for damages
Daniel Lyon, the firefighter severely burned in the 2015 Twisp River Fire, will argue to the state Supreme Court next week that — even as a professional firefighter — he should be able to sue for damages for injuries and loss of earnings.
Lyon sued the Okanogan County Electric Cooperative (OCEC) in May 2018, alleging that OCEC’s failure to properly maintain trees growing under its powerlines caused the fire.
Lyon is asking the high court to overturn what’s often called the professional rescuer doctrine (PRD), which prevents professional first responders from seeking damages. OCEC contends that Lyon can’t sue because of the PRD. The electric coop also denies liability and disagrees with Lyon’s characterization of how the fire started.
The professional rescuer doctrine has evolved from court rulings over 40 years, where courts — including the Washington Supreme Court — found that if professional emergency responders could sue for damages, a person might hesitate to call for help for fear of legal reprisal. The doctrine has also been applied to police officers and emergency medical technicians.
Okanogan County Superior Court Judge Chris Culp dismissed Lyon’s claims for damages in 2018. Lyon appealed to the Court of Appeals but, last November, that court acknowledged the fundamental issue in the case and certified it to the Supreme Court.
“The Court … has determined that it presents issues that involve the professional rescue doctrine that in the orderly administration of justice support its transfer to the Supreme Court for consideration,” wrote Robert Lawrence-Berrey, chief judge for the Court of Appeals. Supreme Court Commissioner Michael Johnston accepted the case the following week, agreeing that transfer to the high court is justified.
When the Supreme Court accepts review of cases, the commissioner identifies the principal issues at hand. Johnston’s summary describes Lyon’s lawsuit as raising issues of negligence, the rescue doctrine, and implied primary assumption of risk.
Johnston summed up the case as follows: “Whether in this tort action brought by a firefighter who was injured fighting a forest fire, this court should abandon or limit the affirmative defense of the ‘professional rescuer doctrine,’ such that the firefighter may bring negligence or gross negligence claims against the power companies allegedly responsible for starting the fire.”
When Culp ruled in Lyon’s case in Okanogan County Superior Court, he noted that fundamental questions about the professional rescuer doctrine would most likely come before the state’s high court.
“The Supreme Court created this doctrine. It’s not appropriate for me to tell the Supreme Court their doctrine is unconstitutional,” Culp said. “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.”
In the brief before the Supreme Court, Lyon’s attorney Kenneth Masters argues that the professional rescuer doctrine creates gross inequity and is unconstitutional, violating equal protection because it denies professional rescuers the right of redress for personal injury.
While some version of the rescue doctrine exists in most states, many have abandoned the PRD, finding that it’s inconsistent with modern tort law and that it lacks sound policy justification. Washington already recognizes multiple exceptions to the doctrine, Masters wrote. The doctrine also singles out professional rescuers as a class, violating the equal protection guaranteed by the constitution.
“Professional rescuers assume the same risk as ordinary rescuers attempting to help others in danger,” Masters wrote. And while they may possess skills, training and experience others do not — and are compensated for assuming risks — modern tort law can handle these factors without barring the rescuer from trying to recover damages, Masters wrote. He urged the court to abandon what he called an “outdated and unjust” exception to the rule.
OCEC argues that the PRD has been settled law in Washington for more than 40 years and that the rule has survived every challenge, including constitutional ones. The doctrine serves a legitimate purpose, OCEC attorney Grant Lingg wrote.
“Lyon… understood firefighting was a dangerous profession and assumed a risk he would suffer burns while fighting fires,” Lingg wrote. “Although Appellant’s injuries are unfortunate, his duties required him to fight this fire regardless of whether the fire started as a result of negligence,” Lingg wrote, noting that courts upheld the PRD as recently as last year.
Lyon was a firefighter working for the U.S. Forest Service when he responded to the Twisp River Fire in August 2015. Fire crews from the Forest Service, DNR, and Okanogan County Fire District 6 also responded to the blaze.
When the wind shifted just hours after the fire started, Lyon and his crew tried to evacuate by driving down the steep, winding road. Their engine went off the road in blinding smoke and the three other firefighters died when the vehicle was engulfed by flames. Lyon was the only one to escape from the burning engine and was found walking on the road with burns to 70% of his body. Although Lyon has made a substantial recovery after years of medical care and numerous surgeries, he still receives medical treatment and rehab.
A 2016 investigation by 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, DNR concluded.
The Supreme Court will hear oral arguments on Jan. 21 from Lyon, OCEC, the Washington Department of Fish and Wildlife (WDFW), DNR, and the Public Utility District of Douglas County (PUD).
The PUD is a party to the lawsuit because it owns the land where the fire started. WDFW leases land from the PUD for a salmon-recovery project. DNR is responsible for fire suppression.
Law groups weigh in in ‘friend of the court’ briefs
Daniel Lyon’s case has attracted wider interest, as evidenced by amicus (friend of the court) briefs from two Washington legal organizations.
The Washington Defense Trial Lawyers Association filed a brief urging the court to preserve the exceptions in the professional rescue doctrine, a decision they say “is supported by strong public policy arguments founded on assumption of the risk and the role of professional rescuers in society.”
“The tort system is not a good way to compensate or care for professional rescuers precisely because their job is, in large part, to respond to negligence-caused emergencies,” the defense trial lawyers wrote in their brief. “When it is a person’s business to deal with hazards created by the mistakes of others, it makes no sense to incentivize such a person to hope, that if and when they get injured by those hazards, it will be under circumstances caused by a wealthy, or well-insured person.” The association’s members also have an interest in preserving legal precedent, they said.
The Washington State Association for Justice Foundation filed an amicus brief in support of Lyon, saying that “the right to sue the party that negligently ignited a fire that resulted in severe injuries to a firefighter is a valuable right.” The association has an interest “in the rights of persons seeking redress under the civil justice system, including an interest in a firefighter’s right to obtain full compensation for injuries suffered in the course of fighting fires.”
The professional rescue doctrine effectively provides immunity to the party who negligently causes a fire, the association for justice said. “Immunity leaves the injured firefighter with an inadequate remedy, which ‘runs contrary to the most fundamental precepts of our legal system,’” they wrote.