Fire Service Litigation:
Every decision made on and
off the fireground can be subject to litigation. Fire service officials
are sued for a myriad of reason ranging from sexual harassment to failure
to provide adequate service. Often the litigation may be frivolous, but
an exorbitant amount of time and energy can be expended trying to prove
one's innocence. Below is a Supreme Court Decision in Iowa that involved
the Burlington Fire Department.
Case Title: PAMELA D. KERSHNER,
Appellant, vs. CITY OF BURLINGTON, IOWA, Appellee.
Number: 170 / 99-0450
Decision: Appeal from the
Iowa District Court for Des Moines County, John C. Miller, Judge.
Appeal by plaintiff from
district court ruling dismissing her negligence claim against city based
on city's immunity under Iowa Tort Liability of Governmental Subdivisions
Thomas T. Skewes of Johnson
& Skewes, Fort Madison, for appellant.
Robert A. Engberg of Aspelmeier,
Fisch, Power, Warner & Engberg, P.L.C., Burlington, for appellee.
Considered en banc.
McGIVERIN, Chief Justice.
Plaintiff Pamela D. Kershner
sued defendant City of Burlington, alleging that the Burlington city fire
department was negligent in responding to a fire at plaintiff Kershner's
residence. The district court granted the city's motion for summary judgment
and dismissed the case, concluding that plaintiff's negligence claim was
based on an act or omission of the city in connection with an emergency
response and that plaintiff's claim was therefore barred by the immunity
provision of Iowa Code section 670.4(11) (1995) (Tort Liability of Governmental
Upon our review, we agree
with the district court's conclusion and affirm its judgment in favor of
I. Background facts and
On January 25, 1996, plaintiff
Kershner was the owner of a home in Burlington, Iowa, and owned and operated
a business out of the home. On that day, Kershner discovered a fire in
the clothes dryer located in the enclosed back porch of the home. She tried
to put the fire out, but was unsuccessful. She then placed a 911 telephone
call to the Burlington fire department, stating she had a dryer fire in
her home. In response to Pamela's call, battalion chief Larry Werner dispatched
only one fire truck and three firefighters (two firefighters and one officer)
to the fire at plaintiff's address.
Upon arriving at plaintiff's
home, the firefighters observed that the fire was contained to the back
porch of the home. The general firefighting technique used to approach
a fire in this type of situation was for the firefighters to enter the
front part of the home and fight the fire from the interior. However, since
only three firefighters initially responded to the fire, entry of the home
could not be made at that time due to safety reasons. A call was then made
for more fire personnel and equipment to respond. Additional fire personnel
and equipment arrived approximately three to five minutes later. Despite
efforts of the firefighters, the fire spread and eventually consumed the
entire home, destroying the structure and contents.
On September 30, 1997, plaintiff
Pamela Kershner filed a petition in district court against the defendant
City of Burlington, alleging that the Burlington fire department was negligent
in failing to follow its written service response policy in that it did
not dispatch a sufficient number of fire trucks and personnel in response
to plaintiff's fire.
After filing an answer, the
city filed a motion for summary judgment, contending that the city was
immune from liability under Iowa Code section 670.4(11) because the defendant's
allegedly negligent acts or omissions occurred in connection with an emergency
response. After a hearing, the court sustained the city's summary judgment
motion and dismissed plaintiff's petition, based on its conclusion that
plaintiff's negligence claim against the city was barred by the emergency
response provision of Iowa Code section 670.4(11).Although the city alleged
in its answer that it was immune from liability under both the discretionary
function, Iowa Code § 670.4(3), and emergency response provisions,
Iowa Code § 670.4(11), the city only cited the emergency response
provision in its motion for summary judgment. The district court's summary
judgment ruling does not address section 670.4(3). Accordingly, our analysis
on appeal will only consider the city's immunity under the emergency response
provision, Iowa Code section 670.4(11).
II. Standard of review.
Our review of a grant or
denial of summary judgment is at law. Iowa R. App. P. 4. Summary judgment
is only appropriate when no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Iowa R. Civ. P.
237(c); Sampson v. American Standard Ins. Co., 582 N.W.2d 146, 149 (Iowa
1998). "Where the only dispute concerns legal consequences flowing from
undisputed facts, our review is limited to whether the district court correctly
applied the law." Kulish v. Ellsworth, 566 N.W.2d 885, 889 (Iowa 1997).
"If the conflict in the record concerns only the legal consequences flowing
from undisputed facts, entry of summary judgment is proper." Thompson v.
City of Des Moines, 564 N.W.2d 839, 841 (Iowa 1997).
The summary judgment record
here consists of the pleadings, summary judgment motions and resistance,
depositions, exhibits, and answers to interrogatories. See Iowa R. Civ.
III. Did the district
court properly conclude that plaintiff's negligence claim was barred by
Iowa Code section 670.4(11)?
The district court concluded
that plaintiff's negligence claim against the city was barred by the immunity
provisions of Iowa Code section 670.4(11). Plaintiff contends this was
A. Immunity under Iowa
Code section 670.4(11), the emergency response exemption to municipal liability.
Iowa Code chapter 670 establishes
the parameters of a municipality's liability for the negligent acts or
omissions of its officers and employees. Keystone Elec. Mfg. v. City of
Des Moines, 586 N.W.2d 340, 345-46 (Iowa 1998). Pursuant to chapter 670,
every city is subject to liability for the torts of its officers and employees
unless such torts fall within one of the exemptions listed in section 670.4.
Baker v. City of Ottumwa, 560 N.W.2d 578, 582 (Iowa 1997). The present
case involves the "emergency response" exemption found in Iowa Code section
670.4(11), which provides immunity to a municipality for
[a] claim based upon or arising
out of an act or omission in connection with an emergency response including
but not limited to acts or omissions in connection with emergency response
In Kulish, 566 N.W.2d at
890, we concluded that the emergency response provision is reasonably related
to a legitimate government interest and that the immunity provision therefore
does not violate the equal protection clauses of either our federal or
state constitutions. See U.S. Const. amend. XIV; Iowa Const.
art. I, § 6. In doing
so, we articulated the justification for the rule as follows:
A local government has a
strong interest in providing rescue services for citizens involved in accidents
and who—day or night—need immediate response. The statutory exemption from
tort liability allows municipal providers of emergency care to render necessary
medical aid in dire situations free from distractions or concerns over
B. The city's fire department
service response policy and plaintiff's contentions.
The Burlington fire department
service response policy outlines the department's proposed responses to
various fire situations and lists the minimum equipment and personnel to
be dispatched to a particular type of fire. At the time of plaintiff's
fire, the service response policy for a residential fire stated the following:
E-1 [engine truck with three
firefighters], S-15 [fire truck with three firefighters], C-16 [fire command
vehicle with two firefighters], and E-2 [engine with two firefighters]
T-13 (fire truck) and/or amb. [ambulance] shall respond at Incident Commander
discretion. The service response policy also contains the following statement:
It is understood that on
occasion extenuating circumstances may arise that will not permit responses
exactly as outlined herein. The Shift Command Officer will however do the
absolute best to comply with these minimum requirements.
The record shows that three
firefighters and one fire truck (S-15 type) were dispatched to plaintiff's
residence as directed by battalion chief, Larry Werner, in response to
plaintiff's 911 emergency call. No reason was given by defendant in the
record as to why the written service response policy was not followed and
there were no apparent extenuating circumstances or other emergencies that
prevented the fire department from following its service response policy.
Plaintiff's theory was that
the damage to her home and property could have been reduced if the fire
department had followed its service response policy and
immediately dispatched the
proper equipment and personnel upon learning of the fire. Plaintiff further
contends that responding to an emergency does not permit municipal officials
or employees to ignore laws or policies that are established for the safety
of all citizens. Additionally, plaintiff argues that a fact question remains
concerning whether her damages were a result of the defendant's alleged
negligence for failing to follow the fire department service response policy.
In essence, plaintiff's contention is that the immunity provisions of chapter
670 do not apply when a governmental subdivision fails to follow written
policies governing the conduct and actions of its officers and employees
in carrying out their official duties.
C. Relevant Iowa authorities
In Cerro Gordo Hotel v. City
of Mason City, 505 N.W.2d 509 (Iowa App. 1993), our court of appeals examined
a governmental subdivision's immunity for acts or omissions related to
an emergency response. In that case, city officials ordered the demolition
of two adjacent buildings owned by plaintiff after the roof of one of the
buildings partially collapsed. Cerro Gordo Hotel, 505 N.W.2d at 510. The
order to demolish the buildings was based on the conclusion of city officials
that the possibility of further collapse created an emergency. Id. At the
time of the partial collapse, plaintiff and the city had entered into a
stipulated agreement that plaintiff had to take down the two buildings
by a certain date. Id. This agreement was the result of a prior nuisance
action initiated by the city. Id. Plaintiff sued the city of Mason City
and city officials for damages associated with the demolition of the buildings.
At trial, the district court
refused to submit to the jury plaintiff's claim that defendants were negligent
in determining an emergency existed and in deciding that the situation
required demolition of the buildings. Id. at 511. On review, the court
of appeals concluded that the district court did not commit any reversible
error in refusing to submit plaintiff's negligence theory to the jury in
view of the jury's finding that an emergency response complete defense
existed in connection with plaintiff's other liability theories that were
submitted to the jury. Id. at 512.
We also addressed the emergency
response provision in Kulish, 566 N.W.2d at 890. We concluded that plaintiffs'
medical malpractice claim against the county, county ambulance service,
and emergency personnel, concerning medical treatment given to a motor
vehicle accident victim, who later died from a heart attack, arose out
of the alleged negligent acts or omissions that began with the response
of emergency medical personnel dispatched to the scene of a car accident.
Id. at 891. We therefore held as a matter of law that defendants were immune
from liability under the emergency response exemption to liability. Id.
at 891-92. In doing so, we noted that the "broad language of section 670.4(11)—'in
connection with an emergency' and 'included but not limited to'—conveys
a legislative intent to encompass situations like those described here."
Id. at 891.
We also addressed the emergency
response exemption to the statutory waiver of sovereign immunity in Keystone,
586 N.W.2d at 349-50. In Keystone, a case involving combined appeals, plaintiffs
sued the city of Des Moines arguing that city officials were negligent
in failing to close a railroad opening in a levee during the flood of 1993.
The city argued that it was immune from liability under Iowa Code section
670.4(11) because its decision not to close the railroad opening in the
levee was made in response to an emergency, the unprecedented flood. Id.
at 349. A district court ruled that the city was immune from liability
under the emergency response provision.
On appeal, we concluded that
a fact question existed concerning whether the city's omission or failure
to close the railroad opening in the levee was made in response to an emergency.
Id. at 350. We based our conclusion on the fact that the record contained
evidence that Des Moines city officials received information that the water
levels were actually going to be higher than those predicted by the Weather
Bureau, which was the source that city officials relied upon in deciding
how to fight the flood, but that city officials took no action to close
the railroad opening in the levee. Id. Thus, a fact question was generated
concerning when an emergency actually occurred due to the flood waters
and the time the city had for a response thereto. Id. Consequently, it
could not be determined as a matter of law whether the city was immune
from liability under the emergency response exception, Iowa Code §
D. Application of law
Plaintiff does not dispute
that defendant city made a response to plaintiff's emergency call concerning
the fire at her residence. Plaintiff says that defendant's response was
inadequate and did not follow defendant's service response policy. We do
not have a situation where the defendant made no response to plaintiff's
The undisputed facts in the
record show that plaintiff's negligence claim is directed at the fire department's
allegedly negligent conduct in deciding the proper equipment and number
of firefighters to dispatch in response to plaintiff's 911 call reporting
a fire in her home. Clearly, the decision concerning the type of equipment
and number of personnel to dispatch to a fire qualifies as an "an act or
omission in connection with an emergency response." Iowa Code § 670.4(11).
Consequently, the city has met its burden of showing that the emergency
response exemption applies in this case. Cf. Kulish, 566 N.W.2d at 891-92
(concluding that district court properly granted summary judgment in favor
of defendants concerning plaintiffs' negligence claim which was directed
at acts and omission of emergency medical personnel dispatched to scene
of car accident). See 18 Eugene McQuillin, The Law of Municipal Corporations
§ 53.82, at 59 (3d ed. rev. vol. 1993) (stating general rule that
unless liability is expressly imposed by statute or the act complained
of is expressly authorized or ordered by the municipal government, no action
lies against a city for the negligence or improper conduct of its firefighters
while discharging their official duties); id. § 53.53, at 385 ("In
the absence of a special relationship, a municipality is not liable for
failure to supply general fire protection. A municipality is not constitutionally
required to provide adequate fire protection even where the municipality
has undertaken such service.").
The more narrow question
we must decide is whether this immunity provision in chapter 670 applies
in this case even though the fire department may have failed to follow
written policies or rules governing the actions of its officers and employees
in carrying out its official duties. In other words, would the fact that
the fire department failed to follow its own written service response policy
be a factor in analyzing whether the city can avail itself of the immunity
provisions of section 670.4(11)?
We turn to the language of
the statute. We note that Iowa Code section 670.4(11) makes no reference
to whether any existing operational guidelines or rules, in effect at the
time of the alleged act or omission, are followed. Additionally, nothing
in our prior case law speaks directly to this issue. We also find no convincing
argument as to why the immunity provisions of chapter 670 should not apply
in this case even though the fire department may not have followed its
written service response policy in dispatching fire equipment and personnel
to plaintiff's fire. We also find no evidence that the city, by adoption
of the written fire department service response policy, intended to impose
on itself or its employees a mandatory duty of care toward persons within
the city so as to provide a basis of civil liability for damages, or otherwise
intended a waiver of the immunity granted by section 670.4(11). Cf. New
Hampshire Ins. Co. v. City of Madera, 144 Cal. App. 3d 298, 306, 192 Cal.
Rptr. 548, 554 (Ct. App. 1983) (stating that by adopting provisions of
Uniform Fire Code governing maintenance of fire hydrant systems, city did
not intend to impose upon itself a mandatory duty of care to persons and
property in city; holding that city was immune from liability for plaintiffs'
claim that city negligently maintained city water system and that fire
department made inadequate response to fire on plaintiffs' property); Young
v. Forgas, 720 N.E.2d 360, 369 (Ill. App. Ct. 1999) (holding that plaintiff's
negligence claim for damages, received when driver of fire truck collided
with plaintiff's car, was barred by tort immunity statute; fire truck driver's
failure to follow fire department's written operating procedures governing
operation of emergency vehicle did not amount to waiver of immunity and
did not impose legal duty upon municipal entities and their employees).
We therefore believe that
the language of section 670.4(11) plainly states that the only relevant
inquiry in determining whether the city has immunity under the emergency
response provision is whether plaintiff's claim is "based upon or arising
out of an act or omission in connection with an emergency response" by
officers or employees carrying out their official duties. Our only task,
therefore, is to apply the language of section 670.4(11) as written. See
State v. Drahaus, 584 N.W.2d 270, 274 (Iowa 1998) (when text of statute
is plain and its meaning clear, court will apply the language of the statute
as written and will not search for meaning beyond express terms of statute
or resort to rules of statutory construction). Because the undisputed facts
in the record show that plaintiff's claim is based on conduct of the defendant
in connection with an emergency response, the immunity provision of section
670.4(11) applies and plaintiff's claim cannot go forward.
We conclude that the district
court properly determined that plaintiff's negligence claim against the
city was barred under Iowa Code section 670.4(11), the emergency response
exemption which caused defendant city to be immune from liability to plaintiff.
The district court's ruling, sustaining defendant's motion for summary
judgment and dismissing plaintiff's claim, is affirmed.
All justices concur except
Ternus, J., who takes no part.