Babcock v. Mason County Fire Dist. No. 6

• Decision Date: 04 August 2000
• Docket Number: No. 24102-1-II.,24102-1-II.
• Citation: 101 Wash.App. 677,5 P.3d 750
• Court: Washington Court of Appeals
• Parties: James C. BABCOCK and Kiyoko Babcock, husband and wife, individually, and the martial community thereof, Appellants, v. MASON COUNTY FIRE DISTRICT NO. 6, a municipal corporation, and Barbara Bodin, Robert Close and Dwane Ehrich, the Commissioners thereof, Respondents.

5 P.3d 750

101 Wash.App. 677

James C. BABCOCK and Kiyoko Babcock, husband and wife, individually, and the martial community thereof, Appellants, v. MASON COUNTY FIRE DISTRICT NO. 6, a municipal corporation, and Barbara Bodin, Robert Close and Dwane Ehrich, the Commissioners thereof, Respondents.

No. 24102-1-II.

Court of Appeals of Washington, Division 2.

August 4, 2000.

William Thomas Cornell, Cornell, Paris & Dean, Seattle, for Respondents.

Roger S. Wilson, R. S. Wilson, Inc. P.S., Tacoma, for Appellants.

HUNT, J.

James and Kiyoka Babcock appeal the trial court's summary judgment dismissal of their lawsuit against Mason County Fire District No. 6, in which they alleged negligence in: fire-fighting strategy, prohibiting their entry into burning structures to remove personal property, allocating fire-fighting resources, and hiring of fire-fighting personnel. Holding that the Babcocks failed to demonstrate that the District owed them a special duty different from the District's public duty, we affirm.

FACTS

Around 4:00 P.M. on August 3, 1995, James and Kiyoko Babcock left their home in Union, Washington, to purchase groceries in Shelton. While they were gone, their house caught fire; a neighbor reported it at 5:07 P.M.

Harold Silver, Chief of volunteer Mason County Fire District No. 6,¹ responded at 5:14 P.M. He observed flames coming up and over the home's roof and the fire having spread to the interior of the adjacent garage.² He notified the dispatcher that the fire was well underway, was burning through the structure, and that additional units and water tenders were needed. The dispatcher issued a second alarm, which brought additional units from District No. 6 and other local districts.

Chief Silver donned his fire gear and asked the neighbors if anyone was in the burning mobile home. The neighbors responded that no one was home, but that the Babcocks' dog was inside. Silver prevented them from entering to save the dog because it was too dangerous: The fire, burning very hotly, had "already burned through the roof." Next, Engine 62 arrived with one fire fighter aboard, and Engine 61, with three veteran volunteers, Dan Hess, Andy Graham, and Ed Nelson. As they pulled into the Babcocks' driveway, Hess could see a large black cloud of smoke. As the Babcocks' home and garage came into view, Hess saw that the home was engulfed in smoke and flames and that the fire had spread to the garage. When Hess arrived, there were only four fire fighters on the scene, and they had only 2,000 gallons of water between the two engines.

Having assessed the fire and the available fire-fighting capability, Silver directed the effort to contain the fire to the home and garage and to prevent its spread to surrounding vegetation and neighbors' homes.³ Silver knew that such containment would be difficult because "it was hot," "it was August," "the surrounding vegetation was dry," and the wind was blowing, having "already blown the fire into the adjacent garage,... setting it alight."

Silver directed Hess and Graham to fight the garage fire, and Nelson to cool the home's wall facing the fire equipment and garage. Because there was a shortage of fire fighters, Silver climbed aboard Engine 61 to operate the water pumps; to protect Hess and Graham, he sprayed the available 500 gallons of water on the side of the mobile home facing the garage.

The garage contained "drums (like oil drums)," oxy-acetylene welding equipment, a "solvent tank/parts washer," and other containers holding unknown substances. The rafters, floor, walls, and the substance in the solvent tank/parts washer were burning. Hess knew that the explosives, chemicals, and solvents would increase the risk to the fire fighters. Hess and Graham began fighting the fire, but the large overhead garage door came off its track and fell on Graham, raising questions about the structure's integrity. Hess, as the senior officer, then ordered Graham out of the garage and reported his observations to Silver, who ordered Hess and Graham not to enter the garage without authorization.

At 5:28 P.M., a tender arrived with additional water, followed by more units. After Hess and Graham exited the garage, Silver ordered them to fight the fire from the back or side of the garage; he assigned another team to fight the fire from the front. But Hess and Graham were unable to follow Silver's orders because a large fuel tank was located behind the garage, and the tank could have ignited.

Silver then instructed Hess and Graham to fight the fire from the front of the garage, but not to enter it.⁴ But the welding tanks and ammunition stored in the garage began to explode and forced the fire fighters to retreat to avoid injury. The fire was successfully confined to the home and the garage; no fire fighters were seriously injured.

The Babcocks returned home around 5:15 P.M. James Babcock contends that one fire fighter instructed him not to remove any personal property and to leave matters in the hands of the fire fighters, who would "take care of protecting [the Babcocks'] property." His wife twice asked a fire fighter to spray water on the garage before it caught fire, but was told they could not because they were waiting for public utility district personnel to arrive and turn off the power. Babcock asserts:

The firefighters stood around until the garage caught fire and was ¾ consumed before they put the first drop of water on it. My tent trailer caught fire 20 minutes after our arrival from Shelton and it could have been moved by a single person ... [a] fireman stood next to it, and for a long while sat on the tongue of it, until just before it caught fire. If they had moved it another ten to fifteen feet, it could have been saved.

Fearing he would lose his 1993 Dodge truck, parked about 20 feet from the house, Babcock moved it without the fire fighters' permission. The heat had already damaged the truck's grill. Babcock further asserts that if he had been allowed into his garage, he, his wife, and neighbors could have saved most of the property within, but that he "relied on the statement of the firemen that the firefighters would protect my property and they did not do that."

Moreover, the Babcocks dispute the severity of the fire, question the fire district's efforts to fight it, and contest the reasonableness of Silver's refusal to move the tent trailer away from the fire.⁵ According to Silver: (1) in District No. 6, the fire chief on the scene is in control of the fire; (2) it is standard procedure to keep citizens away from burning structures; (3) had Babcock asked to move the tent trailer or to remove property from the garage, Silver would have said "no"; (4) the homeowner can disregard what the chief says and "do whatever they want";⁶ and (5) Silver told the Babcocks that "due to safety concerns, we don't want you close to the building."

The Babcocks sued District No. 6 and its Commissioners. They alleged: (1) Chief Silver was negligent in delaying deployment of equipment, failing to use the District's personnel and resources effectively to fight the fire, and allowing the Babcocks' shop to catch fire "while crews stood idly by"; and (2) the Commissioners were negligent in hiring Silver and failing to manage and employ "the resources of the district" properly. The Babcocks sought damages for loss of income and personal property, costs, emotional suffering, and "other special damages occasioned by defendants [sic] breach of duty." The trial court granted District No. 6's motion for summary judgment.

ANALYSIS

I. STANDARD OF REVIEW

When reviewing a trial court's ruling on a motion for summary judgment, we review the record de novo. We will uphold the trial court's judgment if the pleadings, affidavits, depositions and admissions on file demonstrate that there is no genuine issue as to any material fact and the party bringing the motion is entitled to judgment as a matter of law.

Keates v. City of Vancouver, 73 Wash.App. 257, 263, 869 P.2d 88 (1994)(quotations and citations omitted).

A motion for summary judgment should be granted if "there is no genuine issue of material fact or if reasonable minds could reach only one conclusion on that issue based upon the evidence construed in the light most favorable to the nonmoving party." Keates, 73 Wash.App. at 263, 869 P.2d 88 (citing Weatherbee v. Gustafson, 64 Wash.App. 128, 131, 822 P.2d 1257 (1992)). Applying this standard to the trial court's grant of summary judgment in this case, we affirm.

II. PUBLIC DUTY DOCTRINE

RCW 4.96.010, which abolished sovereign immunity, is qualified by the public duty doctrine. Smith v. State, 59 Wash.App. 808, 812, 802 P.2d 133 (1990). "The policy underlying the public duty doctrine is that legislative enactments for the public welfare should not be discouraged by subjecting a governmental entity to unlimited liability." Taylor v. Stevens County, 111 Wash.2d 159, 170, 759 P.2d 447 (1988) (citing Rogers v. City of Toppenish, 23 Wash.App. 554, 559, 596 P.2d 1096 (1979)). "Traditionally state and municipal laws impose duties owed to the public as a whole and not to particular individuals." Meaney v. Dodd, 111 Wash.2d 174, 178, 759 P.2d 455 (1988) (citing Chambers-Castanes v. King County, 100 Wash.2d 275, 284, 669 P.2d 451 (1983); Baerlein v. State, 92 Wash.2d 229, 231, 595 P.2d 930 (1979)). Therefore, for an individual to recover "from a municipal corporation in tort," a plaintiff must show that the duty is "owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general...." Meaney, 111 Wash.2d at 178, 759 P.2d 455 (citing Bailey v. Town of Forks, 108 Wash.2d 262, 265, 737 P.2d 1257 (1987)).

The Babcocks claim two exceptions to the public duty doctrine: (1) the rescue doctrine, which applies "when governmental agents fail to exercise reasonable care after assuming a duty to warn or come to the aid of a particular person;"[⁷] and/or (2...