Alabama Supreme Court Declines to Hear Appeal in Wrongful Death Case

The Supreme Court of Alabama has refused to consider an appeal of a wrongful death lawsuit, concluding that the trial court must first make a determination as to the liability of a firefighter before a final determination on the liability of a volunteer department and a county fire association can be decided. The case involves the Cedar Bluff Volunteer Fire Department, the Cherokee County Association of Volunteer Fire Departments, Inc. and a volunteer firefighter, Howard Guice.

The supreme court explained the facts as follows:

  • On June 6, 2017, Susan Bonner was driving on County Road 45 in Cherokee County when her vehicle left the roadway and ended up submerged in a creek.
  • After Bonner was rescued by a couple of passing motorists, a bystander who also happened to be a volunteer firefighter with the McCord’s Crossroads Volunteer Fire Department began performing cardiopulmonary resuscitation on Bonner.
  • At some point, Cherokee County Emergency Medical Services was notified of the accident, and paramedics were dispatched to the scene.
  • Guice heard the call about the accident on a radio issued to him by the CBVFD and, because he was nearby, allegedly on a personal errand, decided to go to the scene to see if he could assist the paramedics even though he was not within the CBVFD’s service area and the CBVFD had not dispatched him to the scene.
  • After Guice arrived, the bystander who had been performing CPR on Bonner asked Guice to take over, but Guice declined. Instead, he advised that all resuscitative efforts should cease and stated over his CBVFD-issued radio that a death had occurred at the scene.
  • Guice then allegedly entered the water to help other bystanders search for a possible second victim in Bonner’s submerged vehicle.
  • Five minutes after the bystander ceased performing CPR on Bonner, Cherokee County EMS paramedics arrived at the scene. They examined Bonner and found that she was warm to the touch, had a pulse, and had responsive pupils.
  • As a result, the paramedics performed CPR on her until she experienced a return of spontaneous circulation.
  • She was transported to the hospital for further treatment but died two days later as a result of anoxic encephalopathy.

Bonner’s estate sued Guice, the fire department and the county association alleging Guice was responsible for Bonner’s death, and the organizations were vicariously responsible. The suit was brought in the name of the estate’s administratrix, Carol Rogers. The trial court granted summary judgment to the department and the county association, reasoning as follows:

  • Cedar Bluff is immune from liability for the negligence of a volunteer firefighter under the Volunteer Service Act.
  • Assuming that Guice was acting in his capacity as a volunteer firefighter for CBVFD, then he would be immune from negligence as would CBVFD.
  • If Guice acted wantonly, then CBVFD would not be liable for his wantonness. Accordingly, CBVFD is entitled to summary judgment.
  • As to the Association, the trial court… concluded that the evidence presented by the Association in support of its summary-judgment motion demonstrated that vicarious liability could not be established.

The estate sought to appeal the dismissal, and asked trial court to issue a certification of final judgment as to the fire department and county association, which it did. On appeal the supreme court concluded the trial court abused its discretion, explaining as follows:

  • In the present case, it is undisputed that the viability of Rogers’s wrongful-death claim against either Cedar Bluff or the Association is entirely dependent on her still-pending claim against Guice.
  • The bottom line is that if Guice is found not liable, then there would be no need for us to review the trial court’s summary judgment in favor of Cedar Bluff or the Association in almost any scenario.
  • For example, if a jury decides that Guice acted reasonably, or breached no duty, or was not the proximate cause of Bonner’s death, then this appeal would be mooted.
  • Likewise, even if a jury finds none of those things, but finds that Guice “was acting in good faith and within the scope of [his] official functions and duties for a … governmental entity,” then pursuant to § 6-5-336(d)(1) of the VSA, Guice would be immune from liability and Cedar Bluff could not be held vicariously liable for his conduct.
  • Because the review of the issues decided by the trial court on summary judgment would require this Court to resolve claims that are potentially moot, we conclude that the trial court exceeded its discretion in finding that there was no just reason for delay and certifying its judgment as final pursuant to Rule 54(b).
  • Accordingly, Rogers’s appeal is due to be dismissed as having been taken from a nonfinal judgment.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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