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Dianne Varshock et al v. California Department of Forestry and Fire Protection

April 20, 2011

DIANNE VARSHOCK ET AL., PLAINTIFFS AND APPELLANTS,
v.
CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, DEFENDANT AND RESPONDENT.



(Super. Ct. No. 37-2008-00066326-CU-PO-EC) APPEAL from a judgment of the Superior Court of San Diego County, Randa Trapp, Judge. Affirmed.

The opinion of the court was delivered by: Irion, J.

CERTIFIED FOR PUBLICATION

The question in this case is whether sovereign immunity under Government Code section 850.4 (section 850.4) "for any injury caused in fighting fires" or an exception under Vehicle Code section 17001 imposing liability for death or injury "proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle" applies when death and injury result from the use of a fire engine in an attempt to rescue persons and save a home from being destroyed by a wildfire. We conclude that section 850.4 immunity prevails over the Vehicle Code section 17001 exception where, as here, death or injury results from a firefighter's allegedly negligent operation of a motor vehicle at the scene of a fire while attempting to rescue persons from the fire and to extinguish the fire. We therefore affirm the summary judgment in favor of California Department of Forestry and Fire Protection (CAL-FIRE).

I FACTUAL AND PROCEDURAL BACKGROUND

A. The Fire at the Varshocks' Property

Several wildfires burned through San Diego County in October and November 2007. One such fire was the Harris Ranch fire, which swept over more than 90,000 acres and destroyed more than 450 structures.

Thomas Varshock (now deceased) lived with his wife Dianne and their son Richard in a mobilehome on a piece of property (the Property) atop a remote ridge within the area consumed by the Harris Ranch fire.*fn1 When the fire approached the Property, the Varshocks evacuated. Dianne drove away first, and Thomas and Richard followed approximately five minutes later in separate vehicles.

As they were evacuating, Thomas and Richard encountered a group of firefighters. They demanded that the firefighters "do something" to save the Property.

The firefighters then proceeded in their engine towards the Property, and Thomas and Richard followed on their all-terrain vehicle (ATV). When the engine encountered thick smoke, the fire captain decided to back out to a location where he and his crew could await reinforcements. While backing out, the fire engine struck the ATV, which apparently had already broken down; Richard and Thomas got off the ATV, manually moved it to the side of the road and banged on the windows of the fire engine. Because the ATV had broken down and conditions were too dangerous to leave them outside, the fire captain told Richard and Thomas to get inside the fire engine. At that point, the fire captain saw flames behind the fire engine and believed there was a clearing at the Property, so he again proceeded toward the Property.

When they arrived at the Property, the firefighters found a shed that was ablaze and saw several small spot fires near the mobilehome which did not then appear to be on fire. The fire captain parked alongside the mobilehome, and the firefighters exited the fire engine and began spraying water on the burning shed and embers beneath the mobilehome. As the fire captain walked around the mobilehome, he heard glass breaking and saw the interior was on fire. He instructed his crew to get back into the fire engine so that they could get away from the burning mobilehome.

As the captain tried to back the fire engine away from the fire, the wind increased and directed flames across the engine. The engine "died," and the vehicle was subjected to intense heat and surrounded by thick smoke. When the windows of the fire engine shattered and flames entered the cab, the captain instructed everyone to get out.

Thomas was unable to exit the engine and perished at the scene. Richard and the firefighters survived, but each sustained serious burn injuries.

B. The Trial Court Proceedings

After their administrative claim for damages was rejected, Dianne, Richard, and Thomas's brother and business associate, George Varshock (collectively the Varshocks), sued CAL-FIRE. In their first amended complaint, the Varshocks sought damages under five separately labeled causes of action: (1) negligence; (2) negligent entrustment; (3) negligent infliction of emotional distress; (4) negligent interference with prospective economic advantage; and (5) wrongful death.

CAL-FIRE moved for summary judgment on the ground it was entitled to immunity under section 850.4. (See Code Civ. Proc., § 437c, subds. (a), (o)(2).) According to CAL-FIRE, it was entitled to judgment as a matter of law because the undisputed facts showed that its employees were acting within the scope of their employment as firefighters in response to a fire when Thomas was killed and Richard was injured.

In opposition to the motion, the Varshocks did not dispute that the firefighters were responding to a fire and were acting within the scope of their employment when Thomas died and Richard was injured. They argued, however, that the Vehicle Code section 17001 exception for injuries caused by the negligent operation of a motor vehicle applied and precluded entry of summary judgment.*fn2 As part of their opposition, the Varshocks submitted the declaration of a retired fire chief, who described several ways in which he believed the fire captain had improperly operated the fire engine during the unsuccessful effort to save the Property from destruction by fire.

The trial court granted the motion on the basis of Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 153 (Colapinto), where our colleagues in Division Two held that "where the motor vehicle was used as a method to fight a fire and not in a negligent manner on the streets and highways," the Vehicle Code section 17001 exception to section 850.4 immunity does not apply. The court subsequently entered judgment in favor of CAL-FIRE on all of the Varshocks' causes of action.

II DISCUSSION

A. Interpretation of Section 850.4 Immunity and the Vehicle Code ...


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