AGO 1967 No. 40 - Dec 5 1967
FIREMEN - PENSIONS - FIRE PROTECTION DISTRICT - TORT LIABILITY OF FIRE PROTECTION DISTRICT FOR INJURY TO VOLUNTEER FIREMAN.
Where a member of the volunteer fire department of a fire protection district is injured in the performance of his duties as a fireman in consequence of tortious conduct on the part of the district, including district officials or employees, the fact that his disability is also compensable under the provisions of chapter 41.24 RCW, relating to the volunteer firemen's relief and pension system, does not constitute a defense to liability on the part of the fire protection district.
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December 5, 1967
Honorable C. W. "Red" Beck
State Representative, 23rd District
Route 5, Box 15
Port Orchard, Washington 98366
Cite as: AGO 1967 No. 40
We acknowledge receipt of your recent letter requesting an opinion of this office on a question which we paraphrase as follows:
Where a member of the volunteer fire department of a fire protection district is injured in the performance of his duties as a fireman in consequence of tortious conduct on the part of the district, including its officials or employees, does the fact that his disability is also compensable under the provisions of chapter 41.24 RCW, relating to the volunteer firemen's relief and pension system, constitute a defense to liability on the part of the fire protection district?
We answer your question as paraphrased, in the negative for the reasons set forth in our analysis.
By the enactment of § 1, chapter 136, Laws of 1961, as amended by § 2, chapter 159, Laws of 1963 (RCW 4.92.090), commonly known as the state tort claims act, the legislature withdrew the defense of sovereign immunity for tortious conduct from the state.
[[Orig. Op. Page 2]]
InKelso v. Tacoma, 63 Wn.2d 913, 390 P.2d 2 (1964), our supreme court held that this act also constituted a withdrawal of the sovereign immunity defense from cities and other political subdivisions of the state.
However, because of the express language of certain statutes relating to specific types of political subdivisions, there remained a question as to the applicability of theKelso decision in the case of political subdivisions covered by such specific statutes. Accordingly, in 1967, the legislature felt constrained to clear the air on the subject, which it did by enacting chapter 164, Laws of 1967. Section 1 of this 1967 act reads as follows:
"All political subdivisions, municipal corporations, and quasi municipal corporations of the state, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their officers, agents or employees to the same extent as if they were a private person or corporation: PROVIDED, That the filing within the time allowed by law of any claim required shall be a condition precedent to the maintaining of any action. The laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory."
In addition, by this same act the legislature expressly amended the various preexisting statutes which, arguably, in spite of Kelso, had preserved the sovereign immunity defense as to certain specific types of political subdivisions. Among the statutes thus amended was RCW 52.08.010, relating to fire protection districts. Section 5, chapter 164, Laws of 1967, amended this statute as follows:
"Fire protection districts created under this act shall be political subdivisions of the state and shall be held and construed to be municipal corporations within the provisions of the laws and Constitution of the state of Washington. ((
Said districts shall not be liable for the torts of their officers, agents and servants.)) Such a district shall [[Orig. Op. Page 3]] constitute a body corporate and shall possess all the usual powers of a corporation for public purposes as well as all other powers that may now or hereafter be specifically conferred by law." (Material lined out was deleted from statute.)
Therefore, it is quite clear that a fire protection district may now be liable for the tortious conduct of its officers or employees in the same manner as the state or any other political subdivision. That is to say, the defense of sovereign immunity has been withdrawn from these districts, in the same manner as it has been withdrawn from the other governmental units mentioned.
Your specific question, as we understand it, is whether where the tort claimant is a member of the volunteer fire department of the fire protection district which is being sued the district nevertheless has another defense; i.e., that the injured fireman may not recover damages from the district for his injury for the reason that his disability is compensable under the provisions of the laws relating to the volunteer firemen's relief and pension system chapter 41.24 RCW.
We do not believe that this factor would constitute such a defense. The disability provisions of the volunteer firemen's relief and pension system are designed to provide for a statutory disability compensation to an injured fireman for a totally disabling injury or illness sustained ". . . in consequence or as the result of the performance of his duties . . ." without regard to whether he would have a civil cause of action against the fire protection district. See, RCW 41.24.150; also, RCW 41.24.220. However, unlike the workmen's compensation statutes,1/ there is nothing in the laws relating to the volunteer [[Orig. Op. Page 4]] firemen's relief and pension system which would bar the injured fireman from suing the fire protection district in a civil action for damages for the disability while at the same time collecting this statutory disability compensation. Accord,Johnson v. Pease, 126 Wash. 163, 217 Pac. 1005 (1923). Therefore, we may answer your question, as paraphrased, in the negative; the fact that an injured fireman is entitled to compensation from the volunteer firemen's relief and pension system for a disability sustained in the performance of duty is not a defense to tort liability on the part of the fire protection district which he was serving when the disability occurred.
At the same time, lest there be any misunderstanding as to the scope of this conclusion, we deem it appropriate to add the following cautionary remarks:
(1) Affirmatively, in order to recover damages for his disability, the injured fireman will have to prove more than the mere fact that his injury was sustained in the performance of his duties as a fireman; additionally, he will have to prove that the injury was a consequence of fault i.e., tortious conduct on the part of the defendant fire protection district, for his eligibility for statutory disability compensation under chapter 41.24 RCW would not, by and of itself, mean that the district would be regarded as being at fault so as to be liable for damages; and
(2) Defensively, depending upon the particular facts of the case, the various other defenses which are ordinarily available to any defendant in a personal injury action would be likewise available to the fire protection district; e.g., contributory negligence, assumption of risk, or, possibly, the fellow servant doctrine. We merely conclude that the fact of compensability under the volunteer firemen's relief and pension system is not a defense.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
PHILIP H. AUSTIN
Assistant Attorney General
*** FOOTNOTES ***
1/Compare RCW 51.04.010, which specifically abolished rights of civil action for injuries against employers by workmen engaged in extra-hazardous employment. See,Peet v. Mills, 76 Wash. 437, 136 Pac. 685 (1913), for a discussion as to the scope of this statutory provision. Of course, were a volunteer fireman covered, in that capacity, by the provisions of our state workmen's compensation act, a defense against a civil action would be available to the district by virtue of this statute irrespective of the absence of any similar provision in chapter 41.24 RCW. We are advised that a number of cities have brought their paid firemen under workmen's compensation pursuant to the "elective adoption" provisions of RCW 51.12.110. However, it would not appear that this approach would apply to a noncompensated "volunteer" fireman. In any event, coverage of the particular volunteer fireman under workmen's compensation is not one of the stipulated facts set forth in your question.