Virginia Court Rejects Application of Firefighter’s Rule

A Virginia court has rejected the claims of a waste management company that firefighters who were injured at a fire in 2017 are prohibited from suing by the Firefighter’s Rule. The suit was brought by Fairfax County firefighters Jeffrey W. Cockey and Andrew J. Neuhaus against Covanta Fairfax, Inc. alleging negligence and gross negligence. Due to the outrageous conduct of Covanta, the firefighters are also seeking punitive damages.

The fire on February 2, 2017 took several days to contain and caused toxic-exposure injuries to numerous firefighters. According to the decision:

  • Surveillance video captured the fire igniting just before 8:30 p.m., but Covanta employees did not notice the fire for almost seven minutes.
  • The delay in identifying the ignition resulted, in part, from Covanta’s failure to staff an employee whose only duty was to watch for fires, even though Covanta was under an Order of Fire Watch.
  • In contravention to Covanta’s policies and the Order of Fire Watch, Covanta employees delayed contacting the Fire Department for anywhere from ten to thirty minutes after discovering the fire.
  • Instead, they unsuccessfully attempted to suppress the fire themselves.
  • Several firefighters arrived on scene about five minutes after the call.
  • Neuhaus was one of the first firefighters dispatched to the scene.
  • From his station roughly three miles away, Neuhaus could see the fire’s glow in the night sky.
  • When he arrived at the facility, he confronted the facility engulfed in flames and massive heaps of burning trash extending from one side of the tipping floor to the other, violating Covanta’s permitted fire load.
  • Various firefighters noted that the waste pit and tipping floor were at capacity.
  • As Neuhaus attempted to engage his portable mercury monitor to fight the fire, he waded into the chest-deep “toxic-stew” that had collected on the tipping floor due to inadequate drainage.
  • When Cockey arrived on scene the next day, he also attempted to make the water cannons operational in knee-deep “trash-filled water.”
  • Over the next several days, the Fire Department would learn from personal experience and Covanta staff that the water cannons were either inoperable or inaccessible.
  • In addition to Covanta’s delayed decision to contact the Fire Department, several of Covanta’s other decisions further complicated the Fire Department’s response to the blaze.
  • As part of its responsibility in managing the facility, Covanta was required to maintain, inspect, and test its fire protection system regularly.
  • However, its fire pump had previously failed a flow test and was out of service at the time of the fire.
  • Further, even though Covanta’s facility, fire load, and operations had changed, Covanta had not updated its fire protection system.
  • Many of Covanta’s actions violated Virginia’s fire code.
  • Covanta and its personnel further compounded the chaos at the scene by telling a fire captain that its fire pump, fire protection system, and water cannons worked.
  • When firefighters struggled to get the equipment functioning, Covanta employees stated that the pump merely lacked fuel or battery power.
  • In reality, the fire pump was inoperable from the start of the fire, never functioned during the fire, and possibly had not operated since 2016.
  • This caused the Fire Department to experience significant water supply issues.
  • Covanta personnel also told the Fire Department that the trash contained “ordinary household waste that was not hazardous.”
  • Yet, Covanta normally processed industrial and commercial waste.
  • In fact, on the day of the fire, it had received supplemental waste that included medicinal waste and industrial waste with rubber scrap.
  • While fighting the fire, multiple firefighters noticed unusual circumstances surrounding the fire.
  • Neuhaus saw dead birds outside the facility, where he and other firefighters were staged for hours, and watched rats float around him as he tried to fight the fire on the tipping floor.
  • A Fire Department captain noticed that his boot zipper rapidly corroded and broke off shortly after the fire.
  • In a Fire Department first, the firetrucks and equipment had to be specially decontaminated, a process which took several days.
  • After the Covanta fire was controlled, many firefighters became ill.
  • As a result, the Fire Department took steps to monitor firefighters, even following up with firefighters over a year later.
  • However, both Cockey and Neuhaus left the fire thinking they had not been injured.
  • Unlike smoke inhalation symptoms which occur quickly, the Firefighters’ symptoms did not manifest until later, Cockey’s symptoms presenting months later and Neuhaus’s at least a week later.
  • Both Firefighters experienced symptoms that atypically progressed.
  • Cockey’s symptoms began with a mild cough, which developed into labored breathing until he suffered a dramatic loss of pulmonary function, while Neuhaus’s symptoms began with a sore throat and subsequently worsened.
  • Since the initial fire, the Firefighters have suffered injuries and been diagnosed with a plethora of respiratory, pulmonary, cardiovascular, and neurological conditions including asthmatic bronchitis, alveoli (lung) damage, chronic cough and vocal cord dysfunction, and hyperlipidemia, among others.
  • Both have experience permanent injuries and disabilities.

Covanta sought to have the firefighters’ complaint dismissed based on the Firefighter’s Rule. Fairfax County Circuit Court Judge Daniel E. Ortiz rejected that request, explaining that the firefighters’ allegations clearly fell within several of the well-known exceptions to the Firefighter’s Rule.

  • The fireman’s rule limits liability for negligent conduct that injures firefighters.
  • It arises out of the theory that firefighters assume the “usual” risks of their employment.
  • The Virginia Supreme Court has “applied the fireman’s rule only in cases arising from ordinary negligence.”
  • Besides its limited application to ordinary negligence, the Supreme Court has also recognized multiple exceptions to the fireman’s rule.
  • First, it does not apply in cases of willful and wanton conduct, intentional torts, third-party injuries, or where a defendant violated a statutory duty.
  • Further, it does not bar a negligence claim when a property owner fails to make a condition safe or warn a firefighter of a danger when the owner knows or should know (1) of the dangerous condition, (2) that the firefighter is on the premises, and (3) that the firefighter is unaware of the danger.
  • Additionally, Title 8.01, section 226(A) of the Code of Virginia codified … two more exceptions: subsequent negligence that did not arise from the acts causing the emergency and gross negligence.
  • Generally, firefighters undertake enormous but accepted risks when they fight fires. Yet, this undertaking does not force them to assume risks beyond those inherent to their responsibilities.
  • [T]he atypical and unusual events surrounding the fire, including the progression of the Firefighters’ illnesses, special decontamination process, and corroded equipment, and Covanta’s reckless and/or knowing conduct adequately support the Firefighters’ claims against Covanta.

Here is a copy of the complaint:

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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