Opinion
No. 06-C-0999.
March 9, 2007.
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT PARISH OF AVOYELLES.
I write only to further address whether the facts support the application of LSA-R.S. 32:24 because Captain Nash was "responding to an emergency call" or was "responding to, but not . . . returning from, a fire alarm."
LSA-R.S. 32:24 provides, in pertinent part:
A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
Clearly, Captain Nash was not returning from a fire alarm. Obviously, this portion of the statute addresses the situation which occurs after the fire fighting task is complete and the firefighters are returning to the fire station. There is generally no need for haste in returning to the station and the protections afforded by the statute do not apply.
In this matter, the facts adequately support a finding that Captain Nash was "responding to an emergency call" or he was in the process of "responding to . . . a fire alarm." When he was dispatched to the station to retrieve equipment and while he was returning to the fire scene, the fire was still ablaze and the emergency had not abated. Haste was imperative. Even if it can be suggested Captain Nash was not responding to an emergency call (a suggestion with which I disagree), he remained in the process of responding to a fire alarm at the time of the accident at issue.
Assistant Chief Bordelon ordered Captain Nash and firefighter Bordelon to return to the fire station to retrieve another fire truck, Pumper No. 1. The firefighters needed the additional equipment on Pumper No. 1, including air packs, foam, and a large water cannon. The pumper was capable of spraying 1000 to 2000 gallons of water per minute. It also had the capability to draft water from a nearby pond to fight the fire. Additionally, the pumper was needed at the scene in the event that another fire erupted elsewhere.
Assistant Chief Bordelon advised Captain Nash and firefighter Bordelon to retrieve the pumper and return "as soon as possible." With a fire of this magnitude, Assistant Chief Bordelon indicated that every man counted and even one man could make a difference. The fire burned out of control and remained an emergency to the firefighters whose lives were at stake as they battled the enormous blaze. The plaintiff's own expert admitted this fire created an emergency and acknowledged he would defer to the firefighters concerning their decision as to the appropriate response to the fire.
Captain Nash was not a mere courier. He was the third ranking officer in the department and had 14 years experience. His job at the scene was to assist the fire chief in coordinating the actions of the firefighters. The record adequately establishes Captain Nash was "responding to an emergency call" or "responding to . . . a fire alarm" as contemplated by LSA-R.S. 32:24. At the time of the accident, the fire was still being fought. Firefighters remained at risk as long as they battled the blaze. It was not until later that day that a decision was made to allow the fire to burn itself out.
Firefighters must be afforded sufficient discretion to determine what is an emergency as they risk their lives in an effort to save lives and protect property. The statute at issue was written to limit the circumstances that will result in the imposition of liability on emergency responders. We should not construe what is an emergency or what is a response to a fire alarm so as to render the statute ineffective to achieve the purpose for which it was enacted.
Firefighters are entrusted to serve as special guardians of the public's safety. Their uncontradicted testimony regarding what is considered an emergency or whether they are responding to a fire alarm must be afforded proper deference and should not be second guessed unless unsupported by the facts.
The court of appeal properly construed La. Rev. Stat. 32:24 strictly and concluded that the statute did not authorize the defendant, fire truck driver, to travel in the turning lane. The only "privileges" a driver of an emergency vehicle is entitled to exercise are specifically set forth in La. Rev. Stat. 32:24(B) as follows:
(1) Park or stand, irrespective of the provisions of this Chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
(3) Exceed the maximum speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing the direction of movement or turning in specified directions.
Although the majority agrees with the court of appeal's conclusion that the actions of the defendant driver do not fit under subsection 1 through 3 above, it reverses the court of appeal's finding of liability on the part of the driver by finding that his actions fit under subsection 4, which is highlighted above. In order to do so, the majority focuses on the word "movement" in that subsection and uses a definition from an on-line dictionary to support its conclusion. However, it seems apparent to me, as the court of appeal implied, that the more important word in La. Rev. Stat. 32:24(B)(4) is "direction." The subsection is clearly designed to allow the driver of an emergency vehicle to exercise the privilege of going the wrong way on a one-way street and/or to turn in a direction the law otherwise prohibits, such as making a left turn where such turns are normally prohibited.
The defendant driver was not traveling in the wrong direction when the accident occurred in this case. Rather, he was traveling in a center turn lane, that obviously allows travel for a short distance in either direction, but does not allow a driver to travel for greater distances. The defendant driver was not violating any law regarding movement in a given direction at the time of the accident, and therefore his actions are not protected by La. Rev. Stat. 32:24(B)(4).
Therefore, I would not immunize this driver or exonerate him from liability on the strength of the Emergency Vehicle Statute. As a consequence, I would assign some fault to both the plaintiff and defendant in the case, as did the court of appeal.
In the present case, I find the majority, in contravention of well established rules that strictly construe immunity statutes, extends a governmental immunity to include a vehicle whose use was not necessary to the performance of an emergency function at a time when the period of first response had elapsed. For these reasons and those that follow, I respectfully dissent from the majority opinion.
In determining the proper standard of care LA. REV. STAT. ANN. § 32:24 imposes on the driver of an emergency vehicle, this Court in Lenard v. Dilley, 01 — 1522 (La. 01/15/02), 805 So. 2d 175, found that statute contains two alternate standards, depending on the circumstances. If subsections A, B and C of LA. REV. STAT. ANN. § 32:24 are met, an emergency vehicle driver will be held liable only for actions which constitute reckless disregard for the safety of others. On the other hand, if the emergency vehicle driver's conduct does not fit subsections A, B and C of LA. REV. STAT. ANN. § 32:24, such driver's actions will be gauged by an ordinary negligence standard. Lenard, 805 So. 2s at 180.
Simply because an individual happens to be an emergency vehicle driver does not automatically relieve him from liability for ordinary negligence. Lenard, 805 So.2d at 181. As provided in LA. REV. STAT. ANN. § 32:24(A), "The driver of an authorized emergency vehicle when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section,. . . ." (Emphasis added). As a threshold issue, it is well established that the privilege set forth in LA. REV. STAT. ANN. § 32:24 may be invoked only if the driver of the emergency vehicle is responding to an emergency. Keating v. Holston's Ambulance Service, Inc., 546 So. 2d 919 (La.App. 3 Cir. 1989); Prather v. Gautreaux, 297 So.2d 439 (La.App. 3 Cir. 1974). One factor in the determination of whether a particular act of an emergency vehicle driver is privileged is whether the dangerous act was necessary to the performance of the emergency function. Bunkie Funeral Home, Inc. v. McNutt, 414 So. 2d 1263 (La.App. 3 Cir. 1982).
In the present case, it cannot be denied Captain Lloyd Nash was driving a fire department vehicle and that it was properly using audible or visual signals sufficient to warn motorists of his approach. Nevertheless, my review of the facts convinces me Mr. Nash was not performing an act necessary to the emergency at the time of the accident. The Marksville Fire Department had been fighting the fire at the Jen-Re Plastics Plant for as long as 90 minutes when Mr. Nash was re-dispatched to the fire station. Seven neighboring volunteer fire departments had also responded to the Jen-Re fire and as many as forty-five firefighters were fighting the fire when the Fire Chief directed Mr. Nash to leave the scene of the fire to transport another fireman back to the fire station to retrieve another pumper truck and additional equipment. Although the pumper truck contained air packs, foam, and a large water canon, Mr. Nash's vehicle carried no additional equipment that would have assisted in fighting the fire. Further, no showing was made that it was necessary for Mr. Nash's vehicle to lead the way for the pumper truck — the pumper truck was clearly marked as a fire department vehicle, had the proper lighting, and its siren was operational. Significantly, Mr. Nash admitted in his deposition, there was no purpose for him to lead the pumper truck back to the scene of the fire; he could easily have followed the pumper truck back.
In my view, the presence of these factors distinguish the pumper truck from Mr. Nash's vehicle. The evidence preponderates that there was an identifiable need to resupply the firemen on the scene with air tanks, foam would later be needed to douse the fire, and the water canon served a usefulness in fighting the fire. These indicia convince me that the pumper truck, had it been involved in the accident, would have met the requisites in LA. REV. STAT. ANN. § 32:24 needed to call the higher standard of negligence into play.
Although the Jen-Re fire was large and it burned for a long time, Mr. Nash's return trip to the fire clearly did not involve the urgency that a first response would have entailed. The Fire Chief had already determined the Jen-Re employees were accounted for and they were not endangered by the fire. Additionally, all of the Marksville firemen were on the scene, except for Mr. Nash and Mr. Bordelon, and the Marksville Fire Department was assisted by a large contingent of firemen from neighboring towns; together they were fighting the fire and protecting neighboring properties. Moreover, Assistant Fire Chief Chris Bordelon stated that at the time of Mr. Nash's accident the fire was contained to the structure and later that day it was determined to let the fire burn everything down at the Jen-Re site.
The record does not establish the length of time the fire burned. Mr. Nash stated he was told the fire burned for 10 to 12 hours.
Against that backdrop, I simply do not see that Mr. Nash's vehicle fits the description of an emergency vehicle responding to an emergency that would be entitled to the privileges set forth in LA. REV. STAT. ANN. § 32:24. It is evident from the language employed in LA. REV. STAT. ANN. § 32:24 that the Legislature was keenly aware of the danger posed to the public as an emergency vehicle responds to an emergency call. As illustrated in the present case, bumper-to-bumper traffic impeded the southbound lane needed to return to the Jen-Re plant, forcing Mr. Nash to utilize the turning lane, a non-traditional thoroughfare, as a means to reach the fire. Likewise, the bumper-to-bumper traffic impeded the view Mr. Rabalais had as he attempted to turn into the northbound lane of travel. When confronted with those facts, the investigating state trooper, Phillip Tagliarino, stated he would not have driven in the turn lane at a speed of 45 m.p.h. The trooper further stated that when other people are already at the scene of an emergency, the need to hurry your response is no longer needed.
Although I disagree with the appellate court's analysis of LA. REV. STAT. ANN. § 32:24, I nonetheless find the appellate court's reliance on ordinary negligence appropriate under the facts of this case. Accordingly, I would affirm the appellate court decision for other reasons.