Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
A Washington fire captain and his spouse have filed suit against his department claiming the injuries he suffered at a building fire, were the result of the city’s negligence. Vancouver Captain Gregory Weber was injured on February 22, 2021 when a ceiling collapsed on him.
Captain Weber was rescued from the building, but claims he and his crew should not have been ordered to enter the building, which was known to be unoccupied. He and his wife are suing the city in Clark County Superior Court. A copy of the complaint is not available but I have confirmed that the suit was filed.
The Columbian quoted a news release issued by Captain Weber’s attorney as saying:
- On Feb. 22, 2021, Capt. Gregory Weber, a 30-year veteran of the Vancouver Fire Department, suffered career-ending injuries.
- A basic rule of firefighting is that a firefighter’s life should only be put at risk for the life of another, not mere property: ‘A life for a life. Less for less.’
- This basic rule was violated when Capt. Weber and his crew were ordered into a burning building known to be unoccupied.
The lawsuit’s headlines seem to have garnered a great deal of media attention, as well as discussion in social media. I have received at least a dozen emails asking whether or not I have seen the headlines, and what I think about the claims. While I don’t usually editorialize here… folks seem to be freaking out about this like it is a precedent-setting concern that could reshape the fire service.
Regular readers here know that suits like this (1) are not uncommon, and (2) rarely succeed due to the workers compensation exclusivity principle and (in some jurisdictions) immunity protection. The workers comp exclusivity principle is very difficult to get around, and limits the recovery that employees injured through the negligence of their employer or coworkers to the benefits provided by workers compensation.
Like most principles, there are exceptions to the exclusivity principle (and immunity protection as well). Without a copy of the complaint, we cannot determine whether or not the suit is seeking to leverage one of these exceptions. The exceptions typically require truly outrageous conduct by the employer bordering on willful and wanton or reckless. Plaintiff’s attorneys in cases such as this will often resort to alternative legal theories – like a civil rights-type theory alleging “deliberate indifference” to try to trigger a federal due process claim. Those claims are similarly difficult to prove absent the same type of truly outrageous fact pattern.
The problem with the claims that depend upon a truly outrageous fact pattern come down to this: if entering the building was so obviously and outrageously dangerous that the reasonably prudent incident commander should have recognized the risk, why did a fire captain with 30 years of experience – who by the way is directly responsible for the safety of his crew – not similarly recognize the risk? If the captain can be forgiven for missing the danger signs…
Perhaps there is an explanation – but from a defense perspective (defending the city), that is where I would start. An officer given an assignment that is unsafe has a duty to his or her crew. As an IC, I expect my officers to tell me “Chief – this is not safe” – whether it’s “we cannot make entry”, “we cannot get the roof”, “we are backing out” … or what have you.
Captain Weber’s legal team will no doubt have to deal with that challenge in court.
UPDATE March 2, 2024: Captain Weber’s attorney, Munish Barin, reached out and provided a copy of the complaint as well as a Washington State law that overrides workers comp exclusivity to the extent a public employee’s damages exceed what comp pays, provided the harm is the result of negligent or intentional act.
Here is a copy of the statute:
RCW 41.26.281
Cause of action for injury or death, when.
If injury or death results to a member from the intentional or negligent act or omission of a member’s governmental employer, the member, the widow, widower, child, or dependent of the member shall have the privilege to benefit under this chapter and also have cause of action against the governmental employer as otherwise provided by law, for any excess of damages over the amount received or receivable under this chapter.
1991 c 35 § 28; 1971 ex.s. c 257 § 15. Formerly RCW 41.26.058, 41.26.280.
Here is a copy of the complaint:
