Loiland v. State
| Decision Date | 26 December 2017 |
| Docket Number | No. 76096-3-I,76096-3-I |
| Parties | Wynn LOILAND and Suzanne Loiland, Appellants, v. STATE of Washington, Pedro Lopez and Jane Doe Lopez, and the marital community thereof, Respondents and Mario A. Jimenez Perez and Jane Doe Perez, and the marital community comprised thereof, Defendants. |
| Court | Washington Court of Appeals |
Philip Albert Talmadge, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Ave. Sw., Third Floor Ste. C, Seattle, WA, 98126-2138, Francisco A. Duarte, Scott David Jd Smith, Fury Duarte, PS, 1606 148th Ave. Se. Ste. 102, Bellevue, WA, 98007, Lee Stewart Thomas, Harpold Thomas, P.C., 8407 S 259th St. Ste. 101, Kent, WA, 98030-7536, for Appellants.
Garth Ahearn, Office of the Attorney General-Tacoma, P.O. Box 2317, Tacoma, WA, 98401-2317, Torts Division-Tacoma Attorney General, Attorney at Law, 1250 Pacific Avenue, Suite 105, P.O. Box 2317, Tacoma, WA, 98401, Richard William Lockner, Attorney at Law, 524 Tacoma Ave. S., Tacoma, WA, 98402-5416, Steve C. Franklin, Becker Franklin Rovang PLLC, 1730 Pottery Ave. Ste. 210, Port Orchard, WA, 98366-2565, Paul Lawrence Crowley, Lockner & Crowley, Inc., P.S., 524 Tacoma Ave. S., Tacoma, WA, 98402-5416, for Respondents.
Joseph F. Quinn, Joseph F. Quinn, P.S., 20 Forest Glen Ln. Sw., Lakewood, WA, 98498-5306, Amicus Curiae on behalf of Washington Fire Chiefs, Washington Fire Commissioners Association, and Washington State Council of Firefighters.
PUBLISHED OPINION
¶ 1 The general rule in Washington is that a person who is injured while rescuing another may recover from the party whose negligence created the need for rescue. However, because professional rescuers assume certain risks as part of their profession, the general rule does not apply. When a professional rescuer is injured by a known hazard associated with a particular rescue activity, the rescuer may not recover from the party whose negligence caused the rescuer's presence at the scene.
¶ 2 Firefighter Wynn Loiland contends the trial court erred in dismissing his claims against the State as barred by the professional rescuer doctrine. But because the State's alleged negligence was a cause of Loiland's presence at the scene, we affirm.1
¶ 3 Ice and fog created dangerous driving conditions early one November morning. At about 4:40 a.m., driver Pedro Lopez lost control of his Ford Ranger pickup truck while he was driving southbound on I-5. The Ranger spun across four lanes, crossed the right shoulder, and came to rest on its side in a ditch. Another motorist stopped to assist. The motorist parked on the shoulder with his hazard lights activated.
¶ 4 Sergeant Johnny Alexander of the Washington State Patrol (WSP) was patrolling I-5 when he saw hazard lights on the shoulder. Alexander stopped to investigate and saw the Ranger in the ditch. After ascertaining that Lopez and his passenger, Ortiz, were uninjured, Alexander called for a tow truck and began preparing an accident report. As he prepared the report, Alexander saw two cars slide on the ice then regain control. He saw a third car spin, strike the center barrier, and briefly stall. A fourth car slid and narrowly avoided the stalled vehicle.
¶ 5 Alexander determined that the lights from his patrol car distracted approaching motorists, a tow truck would exacerbate the unsafe conditions, and it was not safe to remain on the side of the road. He cancelled the tow truck and advised dispatch to remove the truck when conditions improved. Alexander left the scene with Lopez and Ortiz. He did not turn off the Ranger's lights or mark the truck to show he had responded. Alexander later cited Lopez for driving too fast for conditions.
¶ 6 The emergency dispatcher, Valley Communications, received several 9-1-1 calls reporting an incident at the site of the Lopez accident. Valley Communications dispatched two fire and rescue engines. Firefighter Wynn Loiland arrived at the scene a few minutes later. The firefighters were unaware that WSP had already responded to the Ranger. After determining the truck was unoccupied, Loiland began marking the Ranger with tape to show it was abandoned.
¶ 7 Meanwhile, Mario Perez was driving southbound in the left lane. Perez lost control of his Chevy Blazer at the same spot where Lopez earlier lost control. The Blazer spun across the freeway in approximately the same path that Lopez's Ranger traveled. The Blazer left the road, crossed the right shoulder, and struck Loiland where he stood next to the Ranger. Loiland suffered serious injuries.
¶ 8 Loiland filed a claim against Lopez, Perez, and the State. Loiland alleged that his injuries were caused by the negligent driving of Lopez and Perez, the Department of Transportation's (DOT) negligent failure to deice the road, and WSP's negligent failure to mark the accident. The trial court granted summary judgment for Lopez and the State based on the professional rescuer doctrine.2
¶ 9 Loiland sought direct review by the Supreme Court, arguing that the professional rescuer doctrine did not bar recovery in this case or, alternatively, the Supreme Court should abandon the doctrine.3 The Supreme Court denied direct review and transferred the case to this court.4
¶ 10 Loiland contends the trial court erred in granting the State's motion for summary judgment based on the professional rescuer doctrine. We review a decision on summary judgment de novo, engaging in the same inquiry as the trial court. Dowler v. Clover Park School Dist. No. 400, 172 Wash.2d 471, 484, 258 P.3d 676 (2011) ). Summary judgment is appropriate only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. (citing CR 56(c) ).
¶ 11 In general, a person who is harmed while rescuing or attempting to rescue another may recover from the party whose negligence created the need for rescue. Maltman v. Sauer, 84 Wash.2d 975, 977, 530 P.2d 254 (1975) (citing French v. Chase, 48 Wash.2d 825, 830, 297 P.2d 235 (1956) ). The professional rescuer doctrine is a limitation to this general rule. Id. at 978, 530 P.2d 254. A professional rescuer assumes certain risks as part of his or her job and is compensated for accepting those risks. Id. at 978, 530 P.2d 254. The professional rescuer may not recover where "the hazard ultimately responsible for causing the injury is inherently within the ambit of those dangers which are unique to and generally associated with the particular rescue activity." Id. at 979, 530 P.2d 254. See also Ballou v. Nelson, 67 Wash.App. 67, 71, 834 P.2d 97 (1992). ("[I]t is the business of professional rescuers to deal with certain hazards, and such an individual cannot complain of the negligence which created the actual necessity for exposure to those hazards.").
¶ 12 The professional rescuer doctrine does not bar a professional from recovering in all cases where he or she is injured in the line of duty. The doctrine does not apply where a professional rescuer is injured by a " ‘hidden, unknown, [or] extrahazardous' " danger that is not inherently associated with the particular rescue activity. Maltman, 84 Wash.2d at 978, 530 P.2d 254 (quoting Jackson v. Velveray Corp., 82 N.J.Super. 469, 198 A.2d 115, 119 (1964) ). Similarly, the professional rescuer doctrine does not bar recovery where the rescuer is injured by the act of an intervening third party. Ballou, 67 Wash.App. at 70, 834 P.2d 97 ; Ward v. Torjussen, 52 Wash.App. 280, 287, 758 P.2d 1012 (1988). The doctrine " ‘relieves the perpetrator of the act that caused the rescuer to be at the scene....’ " Beaupre v. Pierce County, 161 Wash.2d 568, 573, 166 P.3d 712 (2007) (quoting Ward, 52 Wn. App. at 287, 758 P.2d 1012 ). It "does not apply to negligent or intentional acts of intervening parties not responsible for bringing the rescuer to the scene." Id. at 575, 166 P.3d 712.
¶ 13 The issue in this case is whether the State's alleged negligence was responsible for bringing Loiland to the scene. Loiland's position is that Lopez, DOT, and WSP were each negligent: Lopez in driving too fast for conditions, DOT in failing to timely deice the road, and WSP in failing to mark the accident when Alexander responded. But Loiland asserts that the event that caused his presence at the scene was the Lopez accident. He asks us to make clear that the professional rescuer doctrine bars recovery only from "the tortfeasor whose initial fault was the occasion for the rescue." App. Br. at 15-16.
¶ 14 Washington courts have apparently not considered the application of the professional rescuer doctrine to multiple negligent parties. Other jurisdictions, however, have concluded that the doctrine bars recovery from all parties whose negligence caused or contributed to the emergency that necessitated the professional's presence. See, e.g., Moody v. Delta Western, Inc., 38 P.3d 1139, 1140-43 (Alaska 2002) (); White v. State, 220 Ariz. 42, 47, 202 P.3d 507 (2008) (); Young v. Sherwin-Williams Co., Inc., 569 A.2d 1173, 1179 (D.C. 1990) (); Wietecha v. Peoronard, 102 N.J. 591, 595-96, 510 A.2d 19 (1986) ().5
¶ 15 We agree with our sister...
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