Public Entities May Not Be Protected From Firefighters Negligently Providing Emergency Medical Treatment

In Wilson v. County of San Joaquin (C084895 ; filed 7/30/19), the Third District Appellate Court held Government Code section 850.6 did not immunize the County of San Joaquin (“County”) from liability for the alleged negligence of two firefighters employed by the City of Stockton (“City”) because the firefighters were not providing “fire protection or firefighting services” in accordance with the plain meaning and the Legislature’s intended scope of section 850.6 at the time of the incident.

In Wilson, the City and County agreed the City’s Fire Department would provide emergency medical services as part of the County’s emergency medical services system. On August 1, 2011, an ambulance and a City Fire Department unit arrived at plaintiffs’ house in Stockton because plaintiffs’ infant son was not breathing and unresponsive. Emergency medical technicians immediately started chest compressions at the scene. When the infant was loaded into the ambulance, two City firefighters also provided additional emergency medical treatment to plaintiffs’ infant son while he was being transported to a nearby hospital, including bag-valve mask ventilation and administering epinephrine. At the hospital, the emergency room physician ordered CT scans of the infant’s head, chest, abdomen, and pelvis after emergency room personnel noticed bruising on the infant’s body. The scans showed blood gathering within the infant’s cranial cavity and a portion of both of the infant’s lungs was filled with fluid. The infant died 10 days later. The coroner’s report listed the infant’s cause of death as “[n]on-accidental trauma” and that the infant “was possibly shaken.”

The plaintiffs sued the individuals and entities – including the County and the City – who provided emergency medical services to the infant for medical malpractice, professional negligence, and intentional infliction of emotional distress.

The County moved for summary adjudication as to plaintiffs’ medical malpractice and professional negligence causes of action on the basis that Government Code section 850.6 immunizes the County from the City firefighters’ conduct. Section 850.6 provides that public entities who receive “fire protection or firefighting service” from another public entity are not liable “for any act or omission of the public entity providing the service or for any act or omission of any employee of the public entity providing the service.” Plaintiffs opposed the motion, arguing the City firefighters were not providing “fire protection or firefighting service” at the time of the incident. The County in response argued that Section 850.6 encompassed all of the services firefighters provide, including emergency medical treatment.

The trial court agreed with the County and granted its motion. On appeal, plaintiffs renewed their argument that “fire protection or firefighting service” did not encompass the emergency medical treatment performed by the City firefighters because those services were not related to preventing or fighting fires.

The Third District Appellate Court sided with plaintiffs and held “fire protection or firefighting service” as it is used in Government Code section 850.6 refers only to activities directly related to protecting from or fighting fires, not emergency medical services.

In support of its holding, the appellate court referred to Lewis v. Mendocino Fire Protection District, 142 Cal.App.3d 345 (1st Dist., 1983). In Lewis, the plaintiff alleged firefighters injured him while negligently attempting to rescue him from beneath a tree that had fallen onto his tent while he was camping. The fire district argued that Government Code section 850.4 immunized it from liability. Section 850.4 states: “Neither a public entity, nor a public employee acting in the scope of his employment, is liable for any injury resulting from the condition of fire protection or firefighting equipment or facilities… for any injury caused in fighting fires.” The Lewis court held that Section 850.4 did not immunize the fire district for a “nonfirefighting incident.” The Lewis court first noted it was required to interpret the statute to allow for liability unless the Legislature clearly intended immunity. The Lewis court then cited the Law Revision Commission’s comment to section 850.6 that “[t]his section makes clear which public entity is liable when one entity calls for the assistance of another in fighting a fire” as clear evidence of the Legislature’s intent.

In response to Lewis, the court noted the Legislature subsequently enacted Health & Safety Code 1799.107, which provides in relevant part: “[N]either a public entity nor emergency rescue personnel shall be liable for any injury caused by an action taken by the emergency rescue personnel acting within the scope of their employment to provide emergency services, unless the action taken was performed in bad faith or in a grossly negligent manner.” The appellate court observed that the Legislature provided two levels of immunity after the Lewis decision for injuries caused by negligent firefighters: (1) Government Code section 850.6, which provides absolute immunity when firefighters cause injuries during firefighting activities and (2) Health & Safety Code section 1799.107, which protects firefighters for injuries caused by their emergency medical services unless the firefighters acted in bad faith or were grossly negligent.

Like the Lewis court, the appellate court in Wilson cited the Law Revision Commission’s comment to section 850.6 as clear evidence that the Legislature intended “firefighting service” to mean activities directly related to “fighting a fire.” Since both section 850.4 and section 850.6 are located in the same statutory chapter entitled “Fire Protection,” the court also opined that this suggested the Legislature intended section 850.6 to be interpreted like section 850.4 to only immunize fire protection and firefighting activities, not emergency medical treatment.

The court sympathized with the County’s argument that it does not make sense to impose liability on firefighters performing their duties even if they are not “actually spraying water on a flame,” but refused to “interpret a statutory enactment in such a way as to expand a grant of immunity beyond the plain meaning of the statute and expression of Legislative intent would reasonably allow.” The court concluded, “[s]hould the Legislature desire to create an immunity complementary to that provided by section 850.6 for emergency services unrelated to fire protection or firefighting, as it did in enacting Health and Safety Code section 1799.107 following [Lewis], it is of course free to do so.”

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August 1, 2019