Robert J. Smith

DENNIS J. SMITH, CHIEF JUDGE
MARCUS D. WILLIAMS
JANE MA BUM ROUSH
LESLIE M. ALDEN
JONATHAN C. THACHER
R. TERRENCE NEY
RANDY I. BELLOWS
CHARLES J. MAXFIELD
BRUCE D. WHITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L BRCDIE
LORRAINE NORDLUND
SRETT A. KASSABIAN
MICHAEL F. DEVINE

JUDGES

December 29, 2010

BARNARD F.JENNINGS
THOMAS J. MIDDLETCN
THOMAS A FORTKORT
RICHARD J. JAMBORSKY
JACK B, STEVENS
J. HOWE BROWN
F. BRUCE BACH
M. LANGHORNE KEITH
ARTHUR B. VtEREGG KATHLEEN H. MACKAY
ROBERT W. WOOLDRIOGE, JR.
MICHAEL P. MCWEENY
GAYLORD L FINCH JR.
STANLEY P. KLEIN

RETIRED JUDGES Dear Counsel:

This matter comes before the Court on Defendants' demurrer to Plaintiffs' Amended Complaint. After considering the oral arguments of counsel and reviewing the applicable legal authority, I find that: (1) the public duty doctrine does not extend to firefighters; and (2) the Amended Complaint sufficiently states a cause of action for gross negligence. Therefore, I overrule Defendants' demurrer.

BACKGROUND

On May 23, 2007, Debra Chiles died in a fire in her Fairfax County townhouse. Chiles called 911 to report the fire and told the dispatcher that she was in the third floor bathroom. Team 419 of the Fire Department arrived seven minutes after Chiles' call. After the firefighters arrived they did not reach the third floor for nine minutes. The firefighters twice unsuccessfully searched for Chiles in the townhouse. The parties dispute whether Team 419 ever searched the third floor bathroom.

Team 435 arrived at the scene shortly after Team 419. Team 435 did not find Chiles. Forty minutes after Team 419 arrived, Team 422 arrived at the townhouse. A member of Team 422 searched the third floor bathroom and found Chiles dead on the bathroom floor.

Andrew and Aaron Chiles ("Plaintiffs"), Chiles's sons, were appointed coadministrators of their mother's estate and brought this suit. The original Complaint, filed against several hundred members of the Fire and Rescue Department on May 22, 2009, alleged wrongful death arising from the fire. The Complaint also alleged that the teams of firefighters unsuccessfully searched for Chiles. The Amended Complaint reduced the number of named Defendants to thirty-nine and added allegations that the firefighters were grossly negligent in searching for and failing to find Chiles, not searching for her at all, or abandoning her after finding her alive.

On May 20, 2010, Defendants demurred to the Amended Complaint on the grounds that (1) this Court should extend the public duty doctrine to immunize the firefighters from Plaintiffs' suit; and (2) the Amended Complaint failed to state an adequate cause of action for gross negligence. I address each of these arguments below.

ANALYSIS

STANDARD OF REVIEW

A demurrer tests whether the plaintiff's pleading states a cause of action upon which relief can be granted. Va. Code Ann, §8.01-273(A). The sole question to be decided by the court is whether the facts pleaded, implied and fairly and justly inferred are legally sufficient to state a cause of action against the defendant. Thompson v. Skate America, Inc., 261 Va. 121, 128, 540 S.E.2d 123, 126-27 (2001). When a motion for judgment or a bill of complaint contains sufficient allegations of material facts to inform a defendant of the nature and character of the claim, it is unnecessary for the pleader to provide details of proof in order to withstand demurrer. CaterCorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279 (1993), citing Hunter v. Burroughs, 123 Va. 113, 129, 96 S.E. 360, 365 (1918).

PUBLIC DUTY DOCTRINE

The public duty doctrine provides that if 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 that the officer owes to the individual. Commonwealth v. Burns, 273 Va. 14, 17, 639 S.E.2d 276, 278 (2007), quoting Marshall v. Winston, 239 Va. 315, 319, 389 S.E.2d 902, 905 (1990). However, the Supreme Court of Virginia has limited the doctrine to cases where public officials owe a duty to control the criminal or assaultive behavior of a third party. Burns, 273 Va. at 17; Burdette v. Marks, 244 Va. 309, 312, 421 S.E.2d 419, 421 (1992), citing Dudley v. Offender Aid and Restoration, 241 Va. 270, 275-76, 401 S.E.2d 878, 881-82 (1991); Marshall, 239 Va. at 318.

The Supreme Court has expressly rejected the application of the public duty doctrine beyond cases involving a duty to protect from third-party conduct. Burns, 273 Va. at 19. In Burns, the plaintiff sought to hold the Virginia Department of Transportation ("VDOT") negligent for leaving a highway trench unguarded and without warning signs. Id. at 16-17. The Supreme Court rejected VDOT's argument that the public duty doctrine immunized VDOT from Burns' negligence suit. In refusing to expand the public duty doctrine, the Court concluded: "We hold that the expansion of the public duty doctrine is unnecessary because Virginia's sovereign immunity doctrine provides sufficient protection to [VDOTs] employees in the discharge of their public duties." Id. at 19; see also Niese v. City of Alexandria, 264 Va. 230, 240, 564 S.E.2d 127, 133 (2002); City of Virginia Beach v. Carmichael Dev. Co., 259 Va. 493, 499, 527 S.E.2d 778, 781 (2000); Stanfield v. Peregoy, 245 Va. 339, 421 S.E.2d 11 (1993); Messina v. Burden, 228 Va. 301, 307-08, 321 S.E.2d 657, 660 (1984). 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. See, e.g., Corp. v. Catlett Volunteer Fire Co., Inc., 241 Va. 402, 404 S.E.2d 216 (1991).

It is true that other jurisdictions have extended the public duty doctrine to cases involving firefighters. Bridges v. City of Memphis, 952 S.W.2d 841, 847 (Tenn, Ct. App. 1997); Frank's Livestock & Poultry Farm, Inc. v. City of Wells, 431 N.W.2d 574, 578 (Minn. 1989); Frye v. Clark County, 637 P.2d 1215, 1216 (Nev. 1981). However, there is no basis in law to extend this reasoning 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.

Consequently, because Defendants in the present case did not owe a duty to the decedent to protect her from assaultive conduct of third parties, the public service doctrine does not protect them from liability.

Notwithstanding my reluctance to expand the public duty doctrine, I nevertheless consider what would happen if the doctrine applied in this case. If the public duty doctrine applied, the next step would require a showing that the firefighters owed a special duty to the decedent. Burdette, 244 Va. at 313. A special duty arises when the officer is in a proximate relationship with an identifiable person or member of an identifiable class of persons, as opposed to the public at large. Marshall, 239 Va. at 319; see also Burdette, 244 Va. at 313 (holding that the deputy owed special duty to the plaintiff because he knew that the plaintiff was being assaulted and he had the capability to defend her). In the present case, the Amended Complaint clearly alleges that Defendants knew that Chiles was trapped in the bathroom on the third floor of her townhouse because she identified her location to the 911 dispatcher. Further, the Amended Complaint states that Defendants either reached the bathroom in question but could not find Chiles, or found and abandoned her, even though Chiles' body was discovered later in precisely the same place where Defendants claimed to have looked.

Thus, because Defendants knew where Chiles 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 Chiles is akin to the relationship the deputy defendant and the plaintiff had in Burdette. Consequently, sufficient facts exist to hold that Defendants owed a special duty to Chiles.

Overall, because the public duty doctrine does not apply in this case, there is no bar to Defendants' Hability under this theory. However, even if the doctrine did apply, I find that the Defendants owed Chiles a special duty to save her from the fire. Therefore, the demurrer is overruled.

GROSS NEGLIGENCE

Defendants next contend that the Court should sustain the demurrer because the Amended Complaint does not state a cause of action for gross negligence.

'"Gross negligence' is that degree of negligence which shows an utter disregard of prudence amounting to complete neglect of the safety of another. 'It is a heedless and palpable violation of legal duty respecting the rights of others.'" Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691 (1987), quoting Town of Bis Stone Gap v. Johnson. 184 Va. 375, 378, 35 S.E.2d 71. 73 (1945). Ordinarily, the question whether gross negligence occurred is a matter for the finder of fact, but it becomes a question for the court if no reasonable minds could differ that no such negligence has been established. Id.

Generally, the fact that a public officer exercises some caution in performing his or her duties is not an immediate bar to gross negligence. See, e.g., Green v. Ingram, 269 Va. 281, 291, 608 S.E.2d 917, 923 (2005) (holding that even though the police officer exercised care by shooting through a door at a downward angle, a reasonable jury could still find that he was grossly negligent since his actions resulted in a death of a person behind the door). Similarly in this case, the fact that Defendants followed the standard procedure in responding to the emergency at Chiles' address does not a fortiori immunize them from gross negligence.

On its face, the Amended Complaint seems to state a sufficient cause of action for gross negligence. Defendants' failure to locate or rescue Chiles, even though her body was found in the exact location Defendants claimed to have searched, may amount to "utter disregard of prudence" on their behalf. It may be true that Defendants did not get to Chiles 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. Frazier, 234 Va. at 293.

Lastly, the Amended Complaint need not state all the details of Defendants' alleged negligence. Va. Sup. Ct. Rule 3:18(b). Specifically, Plaintiffs need not assert every single item of Defendants' failure to follow their training manuals, as Defendants suggest in their demurrer. Furthermore, the Amended Complaint does state that Defendants deviated from their training procedures by failing to properly search for the decedent.

Given the allegations in the Amended Complaint, it is reasonable to conclude that the Amended Complaint puts Defendants on notice of the causes of action pending against them. Thus, the Amended Complaint passes the sufficiency test for the purposes of this demurrer. Furthermore, since the question of gross negligence in this case appears to be a matter for the finder of fact, the demurrer is overruled.

For the reasons noted above, namely, that the public duty doctrine does not apply to this case and that the Amended Complaint states a sufficient cause of action for gross negligence, Defendants' demurrer is overruled in its entirety.

Counsel will prepare an order consistent with this letter opinion and submit it to my law clerk (Law Clerk No. 6) for my signature.

Sincerely, Judge, Fairfax County Circuit Court