California Fire Fighting Immunity Remains Strong but Not Without Exception
How far does California's grant of immunity for the tortious acts of firefighters extend, and specifically, when can a fire department be liable for the negligent operation of its fire engine? The California Court of Appeal in Varshock v. Cal. Dept. of Forestry and Fire Protection (2011) D057709 attempted to answer these questions in a case arising out of the 2007 San Diego County wildfires. Thomas Varshock lived with his wife, Dianne, and their son, Richard, within an area consumed by one of the 2007 wildfires. As the fire approached and burned the Varshock's property, the family evacuated and found a group of firefighters in the nearby area to whom they pled with to save their home. The firefighters agreed, drove to the Varshock's property with Thomas and Richard aboard, and attempted without success to put out the blaze, which at this point consumed the Varshock's residence. Realizing that the fire was uncontrollable, the fire captain told his crew, along with Thomas and Richard, to retreat into the fire engine. Tragically, when attempting to drive the fire engine away from the blaze, winds blew flames across the fire engine causing its engine to die and subjecting the vehicle to intense heat and smoke. Thomas died as a result, and Richard along with the other firefighters suffered severe burns.
The Varshock family sued the California Department of Forestry and Fire Protection ("CAL-FIRE") based primarily upon the alleged negligence of the fire captain in his decisions to (1) drive the fire engine to the Varshock's property with Thomas and Richard aboard without first verifying if there was an adequate escape route; (2) drive the fire engine into a location that had poor access and inadequate space to turn around; and (3) park the fire engine too close to the fire itself. CAL-FIRE moved for summary judgment on the ground that it was entitled to immunity under Government Code section 850.4, which the Varshocks argued did not apply to the case due to a particular exception established under Vehicle Code section 17001.
Government Code § 850.4 provides the following grant of immunity: "Neither a public entity, nor a public employee acting in the scope of his employment, is liable for any injury resulting from the condition of fire protection or firefighting equipment or facilities or, except as provided in Article I (commencing with Section 17000) of Chapter 1 of Division 9 of the Vehicle Code, for any injury caused in fighting fires." Among the statutory exceptions referred to in section 850.4 is Vehicle Code section 17001: "A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment."
Insurance carriers have incurred more than a billion dollars in damages arising from the California wildfires over the past few years. The causes of these fires include arson, discarded cigarettes and failed utility equipment owned or operated by government entities or
The Sword: A plaintiff need only prove the necessary elements of the cause of action to prevail
