Claims arising from trash fire go forward

Where plaintiff firefighters claim they were injured while responding to a trash fire at defendant’s facility, the fireman’s rule does not bar their negligence and gross negligence claims.

The court overrules defendant’s demurrers.

Firefighters’ rule

“The fireman’s rule limits liability for negligent conduct that injures firefighters. It arises out of the theory that firefighters assume the ‘usual’ risks of their employment. … Courts analyzing a party’s culpability for injuries to a firefighter do not focus on the party’s negligence in starting the fire, but rather, emphasize the ‘fault in creating undue risks of injury,’ that is ‘risks not inevitable or inherent in fighting the fire of that kind and extent.’ …

“Besides its limited application to ordinary negligence, the Supreme Court has also recognized multiple exceptions to the fireman’s rule. First, it does not apply in cases of willful and wanton conduct, intentional torts, third-party injuries, or where a defendant violated a statutory duty. …

“Further, it does not bar a negligence claim when a property owner fails to make a condition safe or warn a firefighter of a danger when the owner knows or should know (1) of the dangerous condition, (2) that the firefighter is on the premises, and (3) that the firefighter is unaware of the danger.”

Two more exceptions are “subsequent negligence that did not arise from the acts causing the emergency and gross negligence[.] … Lastly, while the application of the fireman’s rule is a legal question, a firefighter’s assumption of risk becomes a factual question when the defendant’s negligence exposes a firefighter to a risk that is ‘not inherently involved in the normal pursuit of his duties.’ …

“Given the current law, this Court must look at whether the Covanta fire conditions were beyond the ordinary risks associated with firefighting and whether an exception to the fireman’s rule applies.

“As to the question of ordinary risk, certainly, firefighters expect exposure to smoke, water, and flames as part of their normal duties. Yet, the Supreme Court of Virginia … [has] … acknowledged that exposure to an extremely hazardous chemical was ‘highly unusual’ and barred the application of the fireman’s rule in that circumstance.”

Negligence claims

“The Firefighters allege that they have been diagnosed with various diseases and ailments that progressed atypically, including respiratory, pulmonary, cardiovascular, and neurological conditions. … These ‘atypical’ injuries were caused by exposure to toxic fumes and hazardous runoff, including knee and chest-deep water filled with trash and smoke from ‘radioactive, biological, and other uncommon by-products.’ …

“Moreover, the drains either were not working or did not exist, causing the water level to rise and requiring firefighters to fight the fire in a ‘toxic stew’ which at times was chest-deep. … The corrosive and/or toxic composition of the water and smoke corroded metal clasps on boots, killed birds around the facility, and so contaminated fire trucks and equipment that the Fire Department sent the trucks and equipment for special decontamination – a first for the Department. …

“Additionally, on the day the fire began, Covanta accepted 171 tons of waste which included cold and flu medications, deodorants, sleep aids, electronic media, and industrial blend waste containing rubber scrap. …

“The facts discussed above serve as a striking distinction between ordinary fires and the unusual and atypical fire the Firefighters encountered at the facility, despite Covanta’s arguments to the contrary. … [T]he Amended Complaints allege that the Firefighters suffered uncommon symptom progressions and numerous ailments, and experienced once-in-a-career circumstances like metal that quickly corroded and special decontamination procedures.

“While it was foreseeable that the trash fire could expose the Firefighters to toxic fumes, the facts as pleaded in and fairly inferred from the Amended Complaints identify risks and injuries that had not previously occurred in Covanta fires or in fires of ‘that kind and extent.’ …

“Thus, the Amended Complaints contain sufficient facts indicating that the Covanta fire presented risks not inherent in firefighting. … Therefore, this Court overrules Covanta’s demurrers to the negligence claims.”

Gross negligence

“After review of the caselaw and its reasoning, this Court finds that the fireman’s rule does not bar the Firefighters’ [gross negligence] claims at this point in the proceedings. …

“Although Covanta has a fire suppression system, the Firefighters allege Covanta failed to exercise even slight care in maintaining and/or repairing the system. …

“The Amended Complaints repeatedly state that Covanta knew or should have known of the problems with, and unlawful status of, its fire protection system, including its out-of-service and malfunctioning fire pump and blocked hydrants, its fire load limits, and its protocols for fire response. … Further, Covanta misrepresented to the Fire Department the operating status of its closed-loop system, other fire conditions, and the trash’s contents. …

“The Amended Complaints also allege that the fire hydrants and fire department connections (FDC) were inaccessible to firefighters. … One FDC was covered by a shack. … The water cannons were in disrepair and inoperable, even though they would have likely been one of the most efficient ways to fight trash fires. …

“Moreover, Covanta did not appoint fire watch personnel, and the fire likely burned for five to seven minutes unnoticed. Id. … Even after it was noticed, Covanta personnel waited ten to thirty minutes to contact the Fire Department, even though they were required to immediately report the fire. …

“Coupled with the misrepresentations to the Fire Department, the Amended Complaints’ allegations state a cause of action for Covanta’s gross negligence by detailing the cumulative effect of Covanta’s action and/or inaction. … Moreover, the poor state of the fire protection system, which required weekly, monthly, and yearly checks fairly implies a deliberate decision by Covanta not to act.

“In sum, the facts as alleged amount to Covanta’s complete neglect of the safety of other persons. … Because the fireman’s rule does not bar gross negligence claims and the Firefighters pleaded facts sufficient to support claims for gross negligence, this Court overrules the demurrers as to the gross negligence counts.”

Cockey v. Covanta Fairfax, Case No. CL-2019-0001502; Neuhaus v. Covanta Case No. CL-2019-0001504, Aug. 4, 2021, Fairfax County Circuit Court (Ortiz). Michael Finney for plaintiffs, Johan D. McGavin for defendant. VLW 021-8-099, 13 pp.