Wisconsin Supreme Court Limits Firefighter Immunity Protection
The Wisconsin Supreme Court issued an important ruling today on firefighter liability under state law. The case of Brown et al v. Acuity et al arose out of a vehicle accident involving a volunteer firefighter responding to an alarm.
On June 8, 2008, Lt. Parnell Burditt with the Okauchee Fire Department was responding to the station for an alarm when he collided with a vehicle carrying Marilyn M. Brown and Delores M. Schwartz. The accident occurred at an intersection controlled by a traffic light. Lt. Burditt stopped for the red light. He was displaying flashing lights and another vehicle stopped to allow him to proceed. As he started through the intersection he collided with a third vehicle containing Brown and Schwartz that he did not see.
Brown, Schwartz and their insurers filed suit against Lt. Burditt, OFD, and their insurers alleging negligence. The trial court dismissed the suit concluding that Lt. Burditt was entitled for immunity under Wisconsin Statute § 893.80(4). Which reads as follows:
(4) No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.
The trial court concluded that Lt. Burditt was acting with the scope of his employment as an emergency responder, and was entitled to immunity. The Wisconsin Court of Appeals affirmed and the cased ended up before the Wisconsin Supreme Court.
The plaintiffs argued two key points to the Wisconsin Supreme Court. First they argued that Lt. Burditt was not acting within the scope of his employment as a firefighter while he was responding to the station in his personally owned vehicle (POV) and thus was not entitled to public officer immunity under §893.80(4). Second, they alleged that even if he was acting within the scope of his employment, he was not entitled to immunity because he was carrying out a ministerial as opposed to a discretionary act.
The plaintiffs’ first argument was essentially that a volunteer firefighter responding to the fire station for an alarm is nothing more than an employee commuting to work. They pointed to a line of cases that said commuters are not employees until they arrive at work. From this they argued that a firefighter driving to the fire station is outside the scope of employment and not entitled to immunity protection.
The Wisconsin Supreme Court distinguished the commuter cases finding that a firefighter responding to the fire station is within the scope of employment as soon as he/she receives the alarm and makes the decision to respond. The court pointed to the fact that unlike a commuter, once a firefighter starts responding to an alarm he is subject to the orders and commands of his superiors. The court concluded that volunteer firefighters responding to alarms are acting within the scope of their employment for purposes of §893.80(4).
The court then moved on to the second question, whether Lt. Burditt was exercising discretion or acting in a ministerial function. The court acknowledged that a number of exceptions to immunity protection under §893.80(4) exist, and one of them involves employees who are engaged in tasks that are “ministerial” in nature.
The court described ministerial as follows:
A public officer's duty is ministerial only when it is absolute, certain and imperative, involving the performance of a specific task that the law imposes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion. … If liability is premised on either the negligent performance or non-performance of a ministerial duty, then immunity will not apply [internal quotations removed].
The court acknowledged that to be eligible for immunity protection under §893.80(4) an official must be exercising discretion and not performing a ministerial act. The court concluded that because state traffic laws required Lt. Burditt to stop at the red light until it turned green, and did not authorize an exception, he was under a ministerial duty to comply. In other words Lt. Burditt had no discretion to proceed or not proceed through the red light.
As a result, the supreme court remanded the case back to the trial court for a trial on the issue of whether Lt. Burditt was in fact negligent in causing the accident.
Here is a copy of the ruling: Brown v Acuity
There is one more point I want to mention. In rendering its decision, the court may have muddied the waters a bit by suggesting that if Lt. Burditt had used flashing lights and audible warning devices (and qualified as an emergency vehicle) he likely would have been exercising discretion, and thus been entitled to immunity protection. “Burditt is not entitled to public officer immunity because his acts in proceeding through the red stop signal without an audible signal violated a clear ministerial duty. He therefore falls within that exception to public officer immunity.”
This is dangerous territory and commenters have already seized on this part of the ruling to proclaim that if you don’t use both lights and siren you have no liability protection. In my mind that is a dangerous kind of reasoning.
The best liability protection any of us can have when driving is to avoid accidents. When you avoid accidents you don’t have to worry about immunity protection. Driving carefully, and obeying the traffic laws is in my opinion is a far better way of protecting yourself than turning on a siren and hoping you will have immunity.
My guess is the court was speculating – or perhaps responding to arguments made by attorneys in the case. It is a stretch and IMHO a mistake to read this opinion as suggesting that firefighters need to use their audible warning devices as a means to obtain immunity protection.
To Wisconsin's credit, they do have a clear statute:
"in which events the driver of such vehicle shall sound the siren when reasonably necessary to warn pedestrians and other drivers"
Other states have language that leaves much more up to the imagination as to whether the use of a siren means continously whenever the lights are on, or just as needed.
Clearly if you collide with someone…it was needed.
Although the use of audible warning as well as visual is in most cases is a good idea, there are times when audible warnings can cause undesired civialian traffic pattern changes. How about failure to yield to an emergency veihlce
Fire is the bugest and most dangerous threat to our life. Its our fight wo have to fight it togather.
Did he even have an audible device? Due to my position in my department I have a visual device issued by the Chief, but I am not authorized to use an audible device. But the flipside of that is that my light does not authorize me to proceed through a red light, due regard or not.
I know it's going to depend mostly on Wisconsin law, but if he wasn't authorized to break the red light, then he deserves whatever judgement comes down. This is why I have a problem with many immunity laws, especially the way RI's reads- it protects a lot of people did very stupid things that sometimes kill people, but they get to walk away.
BH
My reading of the case led me to believe his FD's rules prohibited him from having or using a siren. So in other words he was in the same situation as somone in RI. The light allows you to ask for someone to yield – but that is it. You are not an emergency vehicle unless you are using lights and siren.
To me – though – alot of folks are missing the point that you get. We should not be telling folks "hey, just turn your siren on and you'll be immune"… that is lunacy. It won't help prevent accidents – in fact it may cause more accidenst to happen because guys will assume the law "gives them" – not just the right of way – but immunity from liability if there is an accident.
We would all be alot safer if firefighters say to themselves "I better be careful cause if something happens I am on the hook for it".
"It is a stretch and IMHO a mistake to read this opinion as suggesting that firefighters need to use their audible warning devices as a means to obtain immunity protection." Especially — as you point out — in states that do not authorize volunteer FFs to use sirens (as is the case here in Maine).
One of the very first things I learned in the police academy, back in the mid-70's was the saying "You can't help if you don't get there." A more modern variation is "Drive like hell and you'll get there."
BTW, we got that lesson after learning how to open a soda (beer) bottle with handcuffs, and how to go out on injured leave. It appears a lot has changed since then.
I understand this person was in his POV but how does the law see it if your department has you respond without lights or sirens when the first unit gets on scene with nothing showing and you are involved in an accident? Does it matter if there is a policy on the matter?
Jim
Ordinarily we are all responsible for our acts of negligence. If we are negligence and we cause damage, we are responsible. The law makes certain exceptions – where folks may have some level of liability protection. The liability protection comes in the form of immunity.
It makes sense to provide immunity protection to (for example) an Incident Commander who may be sued by a homeowner who thinks the IC should have been more aggressive in attacking the fire (or perhaps less aggressive in damaging his house).
When it comes to driving apparatus we enter an entirely different arena where immunity protection can actually be counter productive to how we want our folks to conduct themselves. That was the focus of the Wisconsin case.
Having said all that – your question really goes to the negligence aspect of the question, not the immunity aspect. The question under the negligence aspect is: what would the reasonably prudent firefighter have done under the circumstances. That is a question only a jury can answer based on the specific facts of the case.
IMHO the reasonably prudent firefighter would be driving carefully to the scene regardless of lights and siren, and perhaps even more carefully (if that is possible) once units are on scene and nothing is showing. A policy would certainly be a factor in determining liability. The reasonably prudent firefighter would follow his/her department's policy on responding.
In Wisconsin all emergency vehicle operators (with the exception of law enforcement) are required to operate both audible and visual warning devices when responding emergent. I still see EMS agencies running "emergent" with lights only and expect people to pull over or only activating siren at intersections which can cause confusion to other drivers or make it look like the vehicle is just trying to avoid waiting for intersection lights. In WI it is all or nothing for EMS and fire (lights and siren or nothing).
If only using lights the law pretty much says they have no authority to break traffic laws – they must abide by them as if they had nothing activated at all.
This case will be used in various classes I teach to fire and EMS agencies as a learning tool.
WI Rules of the Road, Statute 346:
346.03(3)
(3) The exemption granted the operator of an authorized emergency vehicle by sub. (2) (a) applies only when the operator of the vehicle is giving visual signal by means of at least one flashing, oscillating or rotating red light except that the visual signal given by a police vehicle may be by means of a blue light and a red light which are flashing, oscillating or rotating, except as otherwise provided in sub. (4m). The exemptions granted by sub. (2) (b), (c) and (d) apply only when the operator of the emergency vehicle is giving both such visual signal and also an audible signal by means of a siren or exhaust whistle, except as otherwise provided in sub. (4) or (4m).
"If only using lights the law pretty much says they have no authority to break traffic laws – they must abide by them as if they had nothing activated at all."
Scott
You can now tell them in addition to the other consequences – they also lose any immunity protection they might otherwise have had if they do not use their sirens. However – IMHO the bigger thing for them to understand is that they need to to drive as if the roads are full of imbeciles who might do something totally unexpected in front of them… because … the roads are full of imbeciles who might do something totally unexpected in front of them… In other words – you already know what the problem is – prepare for it and drive with extra caution.!!!
Thanks Curt. By the way I am currently taking a course where we are using your Legal Considerations book. I really like it. A lot of good information. Thanks.