Legal immunity: How court ruling impacts departments

Fire departments are now not liable for injuries caused by vehicles at the scene of a fire in Calif.


By Matthew Lavrinets
Meyers Nave

Firefighters must make quick decisions under extremely stressful and dangerous circumstances while fighting a fire. Thus, the legislatures of many states, including California, have provided that fire departments cannot be held liable for injuries or damages caused to third persons during the fighting of a fire.

In California, the immunity is codified under Government Code Section 850.4, which states in relevant part that "Neither a public entity, nor a public employee acting in the scope of his employment, resulting from the condition of fire protection equipment or facilities or … for any injury caused in fighting fires.”

However, this immunity does not explicitly extend to the operation of vehicles used while fighting fires. In fact, in California, Section 850.4 specifically states that fire departments can be liable for injuries caused by their employees in the negligent operation of motor vehicles.

Thus, it had been unclear where a fire department's liability for injuries caused in the negligent operation of a fire fighting vehicle ended, and where a fire department’s immunity for injuries during the fighting of a fire began.

Now, in a new decision, California courts have confirmed that fire departments are immune from liability where a firefighter causes death or injury through the negligent operation of a motor vehicle at the scene of a fire while attempting to rescue persons and to extinguish the fire.

In the case, Varshock et al. v. California Department of Forestry and Fire Protection, the plaintiffs brought suit against Cal-Fire when they were injured during an attempt by state firefighters to assist in preventing the spread of fire to their property, and subsequent attempt to rescue them from their property.

The case stems from the massive wildfires that swept through the mountains above San Diego in October and November 2007. During the fires, the Harris Ranch Fire, which burned more than 90,000 acres and destroyed more than 450 structures, Thomas Varshock and his son, Richard, were in the process of evacuating their home when they encountered a group of firefighters.

They demanded that the firefighters do something to save their property, and the firefighters proceeded in their engine toward the property. Thomas and Richard followed on their ATVs, but at one point, the fire captain ordered everyone to get inside the fire engine for their protection so they could move away from the fire.

However, the fire engine died, and was subjected to intense heat and was surrounded by thick smoke. The windows soon shattered, and the captain ordered everyone out, but Thomas died at the scene, and Richard sustained serious burns.

Richard Varshock and Thomas' widow sued, and alleged that the fire captain had improperly operated the fire engine during the unsuccessful effort to save the Varshock’s property from destruction, and relied upon California Vehicle Code Section 17001, which deems a public entity liable for injuries caused by its employee's negligent operation of a motor vehicle.

In response, Cal-Fire asserted that it was immune under Section 850.4. Although the Court of Appeal recognized that the immunity applied under the facts presented in the case, it also recognized that liability could result from a firefighter's tortious act or omission in the operation of a motor vehicle while proceeding from another location to a fire in response to an emergency call.

Although the Varshock opinion is limited to California, the same considerations will likely apply in other jurisdictions. In other words, fire departments are more likely to enjoy immunity from liability for injuries caused by their firefighting activities at the scene of a fire, than they are for injuries caused while proceeding to or from a fire.

About the author

Matthew Lavrinets is an Oakland-based public law attorney and litigator with the law firm Meyers Nave. Matt has extensive experience representing public entities in a wide variety of litigation, including tort defense, civil rights, code enforcement, excessive force, and weapons confiscation matters. He can be reached at mlavrinets@meyersnave.com.

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