Washington Court of Appeals Upholds Fireman’s Rule

The Washington State Court of Appeals handed down a decision last month reaffirming the application of the Fireman’s Rule as a prohibition against suits by emergency responders in the state of Washington.

The case is complicated but for those interested in the Fireman’s Rule, it provides some insight into the judicial considerations that have shaped the rule. Let’s start with a simplified explanation here, and a more detailed explanation in the court’s own words below.

The suit was filed by a firefighter, Wynn Loiland, who was struck by a vehicle on November 20, 2011 while at the scene of a previous accident on I-5. He suffered catastrophic injuries. At the time the roads were slippery and several accidents had previously occurred in addition to the original accident.

A Washington State Patrol Sergeant had stopped at the scene of the first accident (Accident #1), and recognizing the hazardous conditions along with the risk of being struck by another vehicle, decided to remove the uninjured parties from the area leaving one vehicle off-the-road with its lights on. Not surprisingly, the vehicle off-the road prompted additional passersby to call resulting in the dispatch of South King Fire Rescue and FF Loiland’s company. Upon arriving on scene and finding no one in or around the vehicle, FF Loiland began placing caution tape around the vehicle so that others would know that the vehicle had been checked already. It was then that he was struck (Accident #2).

Loiland sued the State of Washington, the driver that caused Accident #1 (Driver #1) and the driver who caused Accident #2 (Driver #2). He alleged the state was liable for his injuries because the state’s highway crew was negligent in not properly de-icing the roads before Accident #1 as well as before accident #2. He also alleged that the State Patrol Sergeant was negligent for not marking the vehicle in Accident #1 as already having been checked. Loiland’s allegation against Driver #1 was that his negligence in causing Accident #1 led to South King Fire Rescue being called, and thus to his injuries. Loiland claimed Driver #2 was liable for his negligence in losing control of his vehicle and striking him.

The state and Driver #1 sought to have Loiland’s suit dismissed based on the Fireman’s Rule, which Washington refers to as the “professional rescuer doctrine”. The trial court and the court of appeals agreed with the state, concluding that the professional responder doctrine prohibits a firefighter from recovering from someone those whose negligence contributed to the reason for the responder having to respond. Thus neither the state nor Driver #1 could be held liable for Loiland’s injuries. Implied in the decision (although not expressly stated) is the fact that Driver #2 can be held liable for Loiland’s injuries because his negligence occurred after the responders were on scene.

For anyone interested in a more thorough explanation of the Fireman’s Rule, here is a link to my December, 2017 article in Firehouse Magazine. It is worth noting that the Washington Fire Chiefs and several other fire service organizations filed amicus briefs in the case asking the court to abolish the professional responder doctrine entirely. The court of appeals declined to do so, opting to continue it.

Here are a couple of links that explain Wynn Loiland’s situation in more detail.

For the non-legal eagles, thank you for going beyond the headlines and reading this far. You are dismissed. Just remember – the Fireman’s Rule varies considerably from state to state. Read my Firehouse article and you will get a sense for just how much variation there is. Also – let me give a shout-out to my firefighter-attorney colleague from Washington State, John Murphy, who told me about the case today. www.murphylawgroup.org

For the legal eagles, lets go a little bit further in this very interesting case. The court of appeals did a pretty slick job of dodging and dancing around some arguments to reach their conclusion that the state should be shielded from potential liability for its own negligence (assuming of course that there was negligence… that issue was never discussed). You will note the court does not describe what they were doing in quite those terms. The decision is quite eloquent… never bluntly saying that it is in the public’s interest for the state to be allowed to negligently injure people, but be unaccountable. But in essence that is exactly what the judges were saying: even if the state was negligent or otherwise at fault for what occurred, it cannot be held liable. The decision also fails to mention that if firefighters like Wynn Loiland cannot recover, then neither can their employer. That means South King Fire Rescue cannot recoup its costs associated with Loiland’s injuries, including the financial burden of his medical bills, worker comp costs, disability pension, backfill, etc. etc. etc.

Let’s look at what the court said, it the court’s own words. For the record, Driver #1’s name is Pedro Lopez. Driver #2 is Mario Perez. The State Patrol Sergeant is Johnny Alexander.

  • In general, a person who is harmed while rescuing or attempting to rescue another may recover from the party whose negligence created the need for rescue.
  • The professional rescuer doctrine is a limitation to this general rule.
  • The professional rescuer may not recover where “the hazard ultimately responsible for causing the injury is inherently within the ambit of those dangers which are unique to and generally associated with the particular rescue activity.”
  • The professional rescuer doctrine does not bar a professional from recovering in all cases where he or she is injured in the line of duty.
  • The doctrine does not apply where a professional rescuer is injured by a “hidden, unknown, [or] extrahazardous” danger that is not inherently associated with the particular rescue activity.
  • Similarly, the professional rescuer doctrine does not bar recovery where the rescuer is injured by the act of an intervening third party.
  • The doctrine “relieves the perpetrator of the act that caused the rescuer to be at the scene.
  • It “does not apply to negligent or intentional acts of intervening parties not responsible for bringing the rescuer to the scene.”
  • The issue in this case is whether the State’s alleged negligence was responsible for bringing Loiland to the scene.
  • Loiland’s position is that Lopez, DOT, and WSP were each negligent: Lopez in driving too fast for conditions, DOT in failing to timely deice the road, and WSP in failing to mark the accident when Alexander responded.
  • But Loiland asserts that the event that caused his presence at the scene was the Lopez accident.
  • He asks us to make clear that the professional rescuer doctrine bars recovery only from “the tortfeasor whose initial fault was the occasion for the rescue.”
  • Washington courts have apparently not considered the application of the professional rescuer doctrine to multiple negligent parties.
  • [T]he alleged negligent acts of DOT and WSP placed Loiland in harm’s way, and he may not recover from them.
  • Loiland raises several theories to argue against this result.
  • The heart of his argument is that the State’s failures amounted to independent or intervening negligence to which the professional rescuer doctrine does not apply.
  • Neither DOT nor WSP injured Loiland while he was responding to a roadside accident. The agencies’ alleged negligence occurred before Loiland responded to the scene.
  • Loiland asserts, however, that his claim against DOT is not based on the agency’s failure to deice before the Lopez crash but on its continuing failure to deice after the Lopez crash. He contends that DOT had an ongoing duty to deice and its failure to deice after the Lopez crash was separate and independent from its failure to deice before the Lopez crash.
  • Loiland provides no support for the proposition that ongoing negligence is the equivalent of independent, intervening negligence.
  • We reject the assertion that DOT’s failure to deice after the Lopez accident amounts to the independent negligence of an intervening party.
  • Loiland next contends the professional rescuer doctrine does not apply to WSP because, by failing to mark the accident, Sergeant Alexander failed to prevent Loiland’s presence but did not cause Loiland’s presence.
  • Loiland points to no authority distinguishing negligence that fails to prevent an event from negligence that causes an event. Loiland’s presence at the Lopez crash was only necessary because WSP failed to mark the crash to show the truck was unoccupied. WSP’s negligence was a cause of Loiland’s presence.
  • Loiland also argues that the professional rescuer doctrine does not apply to WSP because Alexander’s negligence occurred after the Lopez crash and did not cause that crash.
  • In effect, Loiland seeks a rule stating that the doctrine does not bar recovery from a party whose negligence occurs after the original accident but before the professional responds.
  • We reject Loiland’s argument that WSP committed independent negligence to which the professional rescuer doctrine does not apply.
  • Having failed to establish that he was injured by independent negligence, Loiland next asserts that the professional rescuer doctrine does not apply because, in the circumstances of this case, he did not assume the risk of being struck by a car.
  • A professional rescuer may not recover from the party whose negligence caused his presence at the scene where he is injured by a hazard that is “inherently within the ambit of those dangers which are unique to and generally associated with the particular rescue activity.”
  • In sum, Loiland was injured by a known, foreseeable risk while conducting a professional rescue. The State’s negligence was a cause of Loiland’s presence at the accident site. The trial court did not err in ruling that Loiland’s claim against the State is barred by the professional rescuer doctrine.

Here is a copy of the decision: Loiland v Washington

It is worth noting that not once in this decision did the court even mention the historical origins of the Fireman’s Rule that began as judge-made law surrounding real property. Even today, many states that acknowledge the property law origins of the rule limit its application to property owners and tenants who negligently create an emergency on their own premises. These jurisdictions reject what the Washington Court of Appeals seems to accept as law: that the Fireman’s Rule applies everywhere a firefighter may respond. It would be interesting to trace where the extension of the emergency responder doctrine beyond real property to (in this case) roadways occurred, and whether it was a well reasoned decision or just an unchallenged assumption.

Maybe when I retire I will have them time to track it down… but if there are any Fire Law professors out there looking for an engaging topic for their students…. let me know what your legal eagles-in-training are able to come up with

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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