A Fairfax Circuit Court says the “public duty” doctrine does not extend to firefighters, to immunize them from a gross negligence lawsuit filed by the sons of a woman who died in a fire after calling firefighters to tell them she was in the third-floor bathroom of her burning townhouse.
The public duty doctrine provides that is a particular officer breaches a duty he or she owes to the public, the resulting injury must also be public in order to make the officer’s act or omission legally actionable. If a private individual sues a public officer for an individual injury, such a suit will survive only if there is some special duty the officer owes to the individual.
The Supreme Court of Virginia has expressly rejected the application of the public duty doctrine beyond cases involving a duty to protect from third-party conduct. The doctrine of sovereign immunity is the applicable law in all other cases – including cases involving firefighters – that do not fall within the narrow public duty doctrine category.
There is no basis in law to extend the reasoning of cases from other states to Virginia, as the Virginia Supreme Court has limited the application of the public duty doctrine to cases involving a duty to protect from the criminal behavior of a third party. Whether the scope of the public duty doctrine should extend to firefighters is a decision that should be made by the General Assembly or the Supreme Court of Virginia – not this trial court.
Because defendants knew where decedent was located and could conceivably reach and enter the third-floor bathroom, they were in a position to save her. The closeness between defendants and decedent is akin to the relationship the deputy defendant and plaintiff had in Burdette v. Marks, 244 Va. 309 (1992). Consequently, sufficient facts exist to hold that defendants owed a special duty to decedent.
Because the public duty doctrine does not apply in this case, there is no bar to defendants’ liability under this theory. However, even if the doctrine did apply, I find that defendants owed decedent a special duty to save her from the fire.
On its face, the amended complaint seems to state a sufficient cause of action for gross negligence.
Defendants’ failure to locate or rescue decedent, even though her body was found in the exact location defendants claim to have searched, may amount to “utter disregard of prudence” on their behalf. It may be true that defendants did not get to decedent because rescue was unfeasible due to safety concerns. However, on the present facts, it cannot be said that no reasonable minds could differ that no such negligence has been established. Therefore, the question of gross negligence is a matter for the fact finder in this case.
Chiles v. Dunn (Smith, J.) No. CL 2009-7555, Dec. 29, 2010; Fairfax Cir.Ct.; Benjamin R. Jacewicz, Ass’t County Att’y; Kevin M. Leach, James J. McCoart III for the parties. VLW 011-8-006, 6 pp.