Babcock v. Mason County Fire Dist. No. 6
| Decision Date | 13 September 2001 |
| Docket Number | No. 70158-0.,70158-0. |
| Court | Washington Supreme Court |
| Parties | James C. BABCOCK and Kiyoko Babcock, Husband and Wife, Individually, and the Marital Community Thereof, Petitioners, v. MASON COUNTY FIRE DISTRICT NO. 6, a Municipal Corporation, and Barbara Bodin, Robert Close and Dwane Ehrich, the Commissioners, thereof, Respondents. |
Foster, Pepper & Shefelman, Peter Stephen DiJulio, Seattle, Perkins, Coie, James P. McNeill, III, Spokane, Amicus Curiae on Behalf of Washington State Association of Firefighters.
Rogers Wilson, Tacoma, for Petitioner.
William Thomas Cornell, Bellevue, for Respondent.
Petitioners James C. Babcock and Kiyoko Babcock seek review of a decision of the Court of Appeals, Division Two, which affirmed an order of summary judgment by the Mason County Superior Court in favor of Mason County Fire District Number 6 and its Commissioners in an action for negligence filed by Petitioners based upon actions by the Mason County Fire District while fighting a fire at Petitioners' home.1 We granted review. We affirm.
The question presented in this case is whether a special relationship existed between Petitioners Babcock and Respondent Mason County Fire District Number 6 which constituted an exception to the "public duty doctrine" which otherwise provides immunity to fire fighters in the performance of their duties.
Petitioners' claim arose from a fire at their home in Union, Washington to which Mason County Fire District Number 6 responded.2 The facts recited are based substantially upon affidavits submitted in the summary judgment proceeding.3
On August 3, 1995 at 5:07 p.m. Petitioners' next door neighbor, Ms. Marilyn Sherman, telephoned 911 to report a fire at Petitioners' 40 foot long mobile home at East 471 Hyland Drive in Union, Washington.4 Petitioners were away shopping for groceries at the time.5 Fire Chief Harold A. Silver, the first fire fighter on the scene, arrived at 5:14 p.m.6 He observed heavy smoke and flames coming from the mobile home.7 He noticed the fire had spread to an adjacent wood frame garage through the open garage door and that the fire was burning inside.8 Meanwhile a neighbor told Chief Silver that Petitioners' dog was inside the home.9 The neighbor wanted to go inside to rescue the dog but Chief Silver told him not to.10
Chief Silver stated he did not believe the mobile home could be saved because the fire was too intense and well established to be fought.11 He tried to contain the fire to the mobile home and adjacent garage, but this was difficult because of the hot August day, surrounding dry vegetation, and wind.12
According to Chief Silver, Fire Engines 61 and 62 arrived simultaneously at 5:21 p.m.13 Fire fighters Andy Graham, Dan Hess and Ed Nelson were aboard Fire Engine 61.14 Fire fighter John Rogers was aboard Fire Engine 62.15 While Chief Silver and Fire fighters Graham, Hess and Nelson were spraying water on the mobile home, a tent trailer and the garage, Tender 61 arrived with Fire fighters Paul Thomas and Kelly Clark aboard.16
After alighting from his truck Fire fighter Hess noticed the wind blowing the fire from the burning mobile home toward the garage.17 Chief Silver ordered him to enter the garage through the door and to fight the fire from inside.18 As he and Fire fighter Graham entered the garage he observed what he believed to be oil drums, oxyacetylene welding equipment, a solvent tank/parts washer device and various substances.19 He knew explosives, chemicals and solvents posed an increased risk to fire fighters in the area.20 There was fire in the rafters, on the floor in front of him and on the walls to his right.21 He and Fire fighter Graham began spraying water in the garage.22 The overhead garage door shortly fell off its tracks landing partially on Mr. Graham.23 They then went outside the garage and continued to spray water on the fire through an open door.24
The situation inside the garage was reported by Fire fighter Hess to Chief Silver who ordered him to go behind the garage to see if there was another way to attack the fire.25 It was then that Mr. Hess observed an above-ground fuel oil storage tank with the capacity of several hundred gallons which he believed to be a supply tank for a furnace or heater.26 He reported to Chief Silver about the oil storage tank. Chief Silver ordered him to continue fighting the fire from an opening in the garage.27 Ammunition and welding tanks in the garage began exploding soon after that.28
While the fire fighters were trying to control the fire, an unidentified person asked permission to move a tent trailer parked between the house and the garage.29 Fire fighter Hess said the request was denied for several reasons:
To move the trailer would have required pulling a vehicle in between two burning buildings, increasing the risk to fire fighters in the area and involving the risk that the vehicle would also catch on fire and possible [sic] explode, and the driver of any such vehicle would have been put in serious peril. In fact, the fire was so hot that plastic lenses were melted and the paint was blistered on Engine 61, which was much further away from the fire than the tent trailer. Moreover, any vehicle pulling the trailer would have had to drive over fully-charged fire hoses on the ground, with the risk of damaging or rupturing the hoses and endangering the lives of the fire fighters.[30]
After about 30 minutes Fire fighters Hess and Graham were replaced on the front line by other fire fighters who arrived on the scene.31 The fire was brought under control and had not spread to adjacent residences or to the woods. Petitioners' mobile home and garage were destroyed.32
Petitioner James Babcock disputed the facts related by the fire fighters. He stated he and his wife returned to their home between 5:15 p.m. and 5:20 p.m.33 He stated they could see smoke rising from the direction of their home when they were three miles away.34 He stated that when they arrived at their home he saw one fire truck parked to the left of the home but that no one was fighting the fire.35 He said he could see flames through the window, but the flames had not broken through the roof or windows.36 According to Mr. Babcock, the shop (the garage) located approximately 10 feet from his home was not on fire and there was no smoke coming from it.37 He stated fire fighters Hess and Graham did not begin to fight the fire in the garage immediately upon their arrival because the garage was not on fire at the time.38 He said that at no time did the fire fighters enter the garage.39 The garage did not catch fire until approximately 30 minutes after Petitioners arrived home and during that time no water was placed on the garage to stop the fire from spreading to it.40
Petitioner James Babcock stated no effort was made to save his tent trailer, about 15 feet from his home, which could easily have been moved by one person.41 He stated his tent trailer caught fire 20 minutes after he arrived home.42 Shortly after he arrived, he attempted to remove an item of personal property when he was told by a "lady fire fighter" that he was not to attempt removal of any of his property.43 He was told that he and his wife were to leave matters in the hands of the fire fighters and they would "take care of protecting our property."44 He stated that before the garage caught fire he, his wife and a friend asked the fire fighters to put water on the garage and each time they were told the fire fighters could not do so until the "PUD man" arrived to turn off the electricity.45
Even though ordered by the fire fighters not to do so, Petitioner James Babcock nevertheless moved his 1993 Dodge truck which was parked about 20 feet from his home.46 The grill of the truck had considerable damage from the heat of the fire.47
Fire District 6 is located in a rural Mason County community with few or no fire hydrants. It relies upon water-transporting tenders to support its fire fighting. It is staffed by volunteer fire fighters, except for the Chief, who is the sole paid employee. In fighting the fire at the Babcock's home, the fire fighters had to rely upon water pumps and limited-capacity water tanks on the tenders.48
On April 28, 1997 Petitioners James and Kiyoko Babcock filed a complaint in the Mason County Superior Court against Respondents claiming negligence,49 which in summary stated the District Fire Chief negligently delayed dispatch of emergency personnel and equipment by directing the operational equipment to stand by at the station until a late arriving volunteer located his gear, the Fire Chief negligently failed to effectively use personnel and equipment once they were dispatched; their shop was allowed to catch fire with no response at all from fire fighters already on the scene; the Fire Commissioners were negligent in their selection and hiring of the District Fire Chief; volunteer fire fighters were inadequately trained; and the plaintiffs suffered emotional and financial injuries and other damages.50
Petitioners asked for damages for loss of personal property; loss of income, costs and other special damages resulting from Respondents' breach of duty; and damages for emotional suffering.51
On March 30, 1998 Respondents moved for summary judgment.52 In their memorandum they argued the court must dismiss Petitioners' claim for outrage because they could not show any conscious disregard of a high probability of severe emotional distress.53 They also argued Petitioners' negligence claim must be dismissed because they did not demonstrate that Respondents owed them any duty it did not owe to the general public and their claim did not fall under any of the exceptions to the public duty doctrine.54 On June 25, 1998 Petitioners responded to the motion, stating they did not make a claim for outrage and their negligence claim...
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