In November 2011, Gabriel Terry and others from a Tuolumne County firefighting crew were dispatched to fight a wildland blaze that began when a supposedly controlled burn got out of control.
Employees of the Don Pedro Recreation Agency, which is part of the Turlock Irrigation District, set out to burn some brush piles. But, according to court documents, they did not have the proper clearance around the piles, burned on a no-burn day and violated their California Department of Forestry and Fire Protection permit in other ways as well. The burn area bordered private property that included a mineshaft indicated on a map of the area, but with nothing posted to warn of the hazard.
The fire extinguished, Terry walked around the area to take a final look. Darkness had set in. As he went through some brush, he fell into a mineshaft hole. He’s a big man at 6 feet 6 inches, and he landed hard on a boulder in the hole. Terry didn’t know it immediately, but his fledgling firefighting career ended at that very moment. Four and a half years, two reconstructive ankle surgeries, a hip surgery and injections to ease his back pain later, he still wears an ankle brace and might need more operations.
Because he worked for Tuolumne County as a volunteer, the county filed a lawsuit against TID and the property owner. It used Terry and his wife as the lead plaintiffs. Citing negligence, the county wanted to recoup what it paid out for Terry’s medical care along with a settlement for Terry. On paper, at least, the lawsuit looked pretty solid. But attorneys representing TID and the property owner invoked the “firefighter’s rule,” and the judge ruled in their favor. Terry got nothing, nor did Tuolumne County.
The “firefighter’s rule”?
“I had heard about it when I went back to college to become a firefighter,” Terry said. Like most, though, he never thought it would affect him so adversely.
The rule exists in some states, including California, but not others. It shields agencies and property owners from civil liability because firefighters know the job comes with inherent risks. They are aware of the dangers when they enter burning buildings or stand on rooftops to cut air holes. Negligence in some form often is the cause of fires and thus a big part of why they were summoned to the scene. The rule assumes firefighters – and also police and other emergency responders – already are covered by workers’ compensation insurance and therefore don’t need to double dip.
That isn’t always the case, though, as Terry can attest.
When Modesto firefighters Jim Adams and J.D. Clevenger went through a roof while battling a house fire on New Year’s Day 2010, they didn’t try to sue the homeowner or the city. The firefighter’s rule would have applied.
Modesto police Sgt. Steve May was critically injured in a 2002 crash and never regained consciousness before he died in 2009. He’d responded to a report of a stolen pickup in the airport neighborhood. That same pickup struck his police cruiser and caused his injuries. May’s wife, Diana, filed a lawsuit against the auto painting company that left the keys in the car that was stolen. The court exonerated the company, and she didn’t pursue the case because the firefighter’s rule would have nixed it at the next level.
When doesn’t the rule apply? When a fire is set by an arsonist, the injured firefighter can sue the arsonist. Such a case is in the courts in Fresno County, where Fresno fire Capt. Pete Dern suffered second- and third-degree burns over more than 70 percent of his body in a March 2015 house fire. A woman pleaded guilty to setting the blaze and is serving a nine-year prison term. Dern filed a civil suit against her and others in December.
If equipment is defective, some courts have ruled in the firefighter’s favor. When a property owner tells a firefighter there are no out-of-the-ordinary dangers such as toxic chemicals on the property, only to have the firefighter suffer injury or illness from them, the firefighter is likely to win.
And in law enforcement, as one case law study suggested, let’s say an officer is standing on the street while writing a parking ticket and is struck by motorist who wasn’t paying attention, driving erratically, a DUI or anything else that isn’t related to the parking ticket. The officer could sue the motorist, but not the owner of the parked car.
None of those scenarios, however, helped Gabriel Terry and his family. He was a volunteer firefighter in Tuolumne County, meaning he wasn’t on staff but was paid for his work. While his medical bills have been covered, his workers’ compensation payments stopped after two years. He receives no disability payments, and the family now relies on his wife’s income.
“I’d like to at least get some retraining – go back to school – something,” he said.
For certain, he’ll never be a firefighter again. And, as he found out in November, he won’t get a settlement for his injuries.
That, unfortunately for Terry, is the rule.