Hauber v. Yakima County

56 P.3d 559
Washington Supreme Court·Decided October 31, 2002·No. 71618-8·Published·Cited by 7 cases

Opinion

56 P.3d 559 (2002)

Traci HAUBER, individually, as Personal Representative of the Estate of Rusty Hauber, and as Guardian of Tyson Scott Hauber and Tori Lee Hauber, minor children, Petitioner,
v.
YAKIMA COUNTY, a political subdivision of the State of Washington, Respondent, and
Roza Irrigation District, a Washington corporation, and John Does 1 through 10, Defendants.

No. 71618-8.

Supreme Court of Washington, En Banc.

Argued June 13, 2002.
Decided October 31, 2002.

*560 Duncan Turner, Donald Mullins, Seattle, for Petitioner.

Alfred G. Schweppe, James S. Berg, PLLC, James Berg, Yakima, for Respondent.

CHAMBERS, J.

A total of six underwater divers were involved in a tragedy; four died. Two divers employed by the Roza Irrigation District drowned while attempting to clear abandoned auto debris from a half mile long underground siphon. Two rescue divers responded after the first two divers failed to surface. The two rescue divers also failed to return to the surface, and two more divers recovered the rescue divers. We are asked to determine if Yakima County has statutory immunity against suits brought by Emergency Search and Rescue volunteers who are also professional fire fighters. We conclude that under the facts of this case, the county is entitled to immunity and affirm the trial court and the Court of Appeals.

FACTS

Rusty Hauber, a city of Yakima fire fighter and registered emergency search and rescue (S & R) dive team volunteer, was one of the rescue divers who died during the rescue mission in the Roza Canal. Hauber had been a Yakima city fire fighter since 1996, and a registered member of Yakima County S & R since 1992. Hauber died attempting to rescue John Eberle and Marty Rhode who were privately employed by the Roza Irrigation District to clean rubbish and abandoned cars out of a deep irrigation canal. It is not unusual for abandoned vehicles to be driven into the canal and collect in siphons that carry the water underground to depths that exceed 100 feet. The Roza Irrigation District must regularly clear debris from siphons.

Eberle and Rhode entered the Roza Canal near Zillah, Washington. They did not surface when planned, and the district called 911. The 911 dispatcher alerted the local fire department, which forwarded the call to the Yakima County S & R coordinator, County Sheriff's Deputy George Town. Deputy Town determined that an S & R dive team response was needed and summoned members of the Yakima County S & R dive team for an emergency mission. After first trying Hauber at home, he reached Hauber on duty at Yakima Fire Station One. Hauber requested and received permission from his battalion chief to respond to the call. The battalion chief first confirmed that there was a formal request for Hauber's assistance. Hauber offered to go off duty, but the chief declined, saying something like; "You are going as a Fire Department employee. This is a mutual aid call. You will represent the fire department." Clerk's Papers (CP) at 606.

After returning home to retrieve his diving equipment, Hauber met the S & R dive team at the Roza canal siphon near Zillah, which is outside Hauber's fire fighting district. Hauber and another S & R diver, police officer J.R. Mestaz, entered the canal siphon about an hour later. Not long afterwards, observers on the shore saw the divers' lights wink out; a minute later, air bubbles ceased to appear. Two backup divers were sent in, and both S & R divers were recovered. *561 Hauber was pronounced dead at the scene, Mestaz died in the hospital three days later. Rhode's and Eberle's bodies were retrieved the next day.

A year later Hauber's estate and widow (collectively, the estate) filed a wrongful death suit against Yakima County and the Roza Irrigation District. The estate contends, among other claims, that there was inadequate planning, equipment, and safety preparation for the dives given the temperature, visibility, current, depth, and confined space within the canal siphon. Because the rescue was started long after the air carried by Rhode and Eberle would have been exhausted, the estate contends the mission should have been treated as a body recovery. The county moved for and received dismissal of all claims based on statutory immunity under RCW 38.52.190. The trial court judge certified this case for immediate review under RAP 2.3(b) and stayed the claims against Roza Irrigation District pending the outcome of this appeal. The Court of Appeals affirmed the trial judge, finding as a matter of law that the county was entitled to statutory immunity. Hauber v. Yakima County, 107 Wash.App. 437, 27 P.3d 257 (2001). We granted review, and affirm.

ANALYSIS

Summary judgment is reviewed de novo with all inferences taken in favor of the nonmoving party. Reid v. Pierce County, 136 Wash.2d 195, 201, 961 P.2d 333 (1998). Ultimately, only one issue is before this court: whether Yakima County is entitled to immunity.

S & R volunteers are entitled by statute to compensation for injury or death arising out of volunteer missions. RCW 38.52.260,.010(4). Compensation is calculated according to the Workers' Compensation Act, chapter 51.32 RCW. RCW 38.52.290. The mission must be a distinct assignment "to achieve a set of tasks related to an incident... or search and rescue operation that occurs under the direction and control of a local authorized official." WAC 118-04-060(10). Deputy Town was such an official, and there is no dispute that the rescue attempt was such a mission. See CP at 561-62.

S & R volunteers are barred by statute from bringing suit against "the state, ... the agency, ... the local organization for emergency management ..., or ... the county or city ... for an injury or death arising out of... activities as an emergency worker." RCW 38.52.190. The legislature clearly intended to forge a compromise similar to the one in the Industrial Insurance Act, Title 51 RCW. The S & R volunteer is assured sure and certain relief; the local emergency management organization enjoys immunity from tort claims by volunteers for their injuries.

While the Industrial Insurance Act immunizes most employers from job related negligence suits, fire fighters and police officers, because of the vital and dangerous nature of their work, are provided extra protection and are allowed to both collect workers' compensation and bring job related negligence suits against their employers. RCW 51.04.010, RCW 41.26.281. If Hauber had been killed as a fire fighter, he might have had a negligence suit against his employer.

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Hauber v. Yakima County, 56 P.3d 559 (Wash. 2002).

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