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."

The Varshocks argued that based upon the clear literal meaning of the above stated exception set forth in Vehicle Code section 17001, CAL-FIRE was not entitled to immunity under Gov. Code section 850.4 for its alleged negligent acts related to the operation of the fire engine. The court disagreed and found for CAL-FIRE. While conceding that the Varshocks’ interpretation of the interplay between Government Code section 850.4 and Vehicle Code section 17001 was "consistent with the plain language of the statute," the court nonetheless declined to adopt this literal interpretation as it conflicted with the immunity statute’s intent, purpose, and the applicable case law.

The Varshock court thereby asserted the following two major holdings: (1) When a "firefighter operates a motor vehicle at the scene of a fire as part of efforts to rescue persons or property from the fire or otherwise combat the fire, immunity under section 850.4 exists for any injury that results from the firefighter’s tortious act or omission in operation of the motor vehicle"; and (2) This "immunity under section 850.4 does not apply, and potential liability under the Vehicle Code section 17001 exception exists, if injury results 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." The court concluded that since the firefighters in the case were at the scene of the fire and attempting to rescue persons or property, immunity therefore applied.

Thus, whether a fire department can be liable for the negligent operation of its fire engine hinges on if the alleged negligent acts occurred while the vehicle was at the scene of the fire, as opposed to going to the scene of the fire. Importantly, immunity likely exists in the former situation, while liability can exist in the latter case.

As seen with the wildfires in Varshock, the line delineating whether a fire department was at the scene of a fire rather than proceeding to a fire can often be blurry, and thus future application of this distinction will undoubtedly rest on the facts of the particular case.

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