By Hal Bernton / The Seattle Times
After the 2015 Twisp River fire, property owners who suffered losses filed claims against an Okanogan electric cooperative, which — according to a state investigation — did not keep branches from a power line that ignited the blaze.
Daniel Lyon Jr., a wildland firefighter burned over most of his body, thinks he should also have the right to seek damages. But to win the right, he must overturn a doctrine — established through Washington state case law — that largely prevents professional first responders from having their day in court.
“I want to be able to pave a new path for firefighters down the road who are in similar situations,” said Lyon, the sole survivor of a four-person engine crew overcome by the Twisp River fire. “I want to make sure they are afforded the same rights as everyone else.”
Lyon’s civil claim seeks $100 million from the Okanogan County Electric Cooperative that owns a power line that ran through the fire zone and a public utility district that owns the property beneath the line. His legal quest got off to a tough start when an Okanogan Superior Court judge last October issued a summary judgment dismissing his case without a trial.
In July, his attorneys filed a brief with the state Court of Appeals. They argue the Professional Rescue Doctrine that largely bars such claims violates the state constitution, which gives people equal protection under the law and offers the right to seek compensation for damages.
Lyon’s attorneys note that courts in some other states, where the doctrine once held sway, have opted to throw it out.
The doctrine “singles out professional rescuers as a class, denying them the right to recover for personal injuries sustained on the job on the theory that they are paid to encounter risk,” Lyon’s attorneys wrote in the appeals brief. “But they are paid no more than many who encounter risk in other professions.”
An attorney for one of the two defendants in this case says the wounds Lyons suffered — however grievous — resulted from risks inherent to the dangerous job of firefighting.
“The law does not allow them (professional first responders) to sue — and there are good policy reasons behind that,” said A Grant Lingg, who represents the Okanogan County Electric Cooperative. “You don’t want the people who start a fire to be afraid to call the fire department for fear that that an injured first responder will sue them.”
The $100 million claim filed by Lyon notes he has undergone 13 surgeries, 100 medical procedures and continues to receive treatment for physical and emotional injuries.
Lingg said the damages payment sought by Lyon would devastate the electric cooperative, which provides power for rural customers.
The state Department of Natural Resources, which conducted the investigation of the Twisp River fire, did not comment on the question of potential negligence. And Lingg said his client contends that state investigators erred in concluding that the fire was caused by a tree branch that chafed on an uninsulated power line.
Instead, Lingg, in an interview with The Seattle Times, said there was evidence that the fire did not start underneath the power line. So the cooperative contends it should also not be responsible for any property-damage claims from the Twisp River fire, and has not settled them.
“We believe the DNR report is flawed,” Lingg said.
“A lot of hard days”
Four years ago, on Aug. 19, 2015, Lyon and three other U.S. Forest Service crew members of Engine No. 642 tried to escape the Twisp River fire. They drove down a narrow, winding dirt road. Blinded by smoke, they ran their vehicle off the road, and were overtaken by 800-degree flames.
Richard Wheeler, Andrew Zajac and Tom Zbyszewski were killed. Burns covered nearly 70% of Lyon’s body. His eyes were protected by sunglasses, though the lenses nearly melted.
“I remember jumping out of the truck,” Lyon would later say. “I remember running.”
Lyon, 29, has been treated over the years at Harborview Medical Center. Dr. Nicole Gibran, a specialist in such injuries, said only about half of the people with burns of that magnitude survive.
Lyon says he knew he could be injured on the job. But he always focused on the task in front of him — fighting fires, and never expected to suffer such severe burns, and thinks his job title should not preclude him from pursuing his court case.
Lyon has displayed remarkable fortitude through a long and difficult recovery involving multiple surgeries and skin grafts. He says he no longer takes pain medications because he disliked their side effects. But pain remains a constant: He says his skin feels like clothing that has shrunk and tightened from too much time in a dryer.
Lyon divides his time between his parents’ house in Missoula, Montana, and the Puget Sound region, where he continues to receive medical care. As a worker injured in a Forest Service job, Lyon receives federal workers’ compensation benefits, which have paid his medical bills and a stipend he says tallies $1,100 a month.
Through the years, he has held fast to a dream of becoming a police officer, a job that would be made more difficult by severe hand burns — the tips of all 10 fingers had to be amputated — that complicate the task of using a firearm.
“That goal has gotten me through a lot of hard days, and made me push through a lot of barriers,” Lyon said. ” I want to serve my community … That is what I feel like I was born to do.”
Unfavorable rulings in Washington
Elsewhere in the nation, some professional rescuers have succeeded in their legal challenges.
In Oregon, for example, the family of a slain law-enforcement officer sued for damages as a result of alleged negligence. The Oregon Supreme Court found the legal underpinning for the doctrine flawed, and struck it down.
In Washington, the doctrine was established in a 1975 state Supreme Court ruling, and has so far withstood legal challenges. In Washington, a Good Samaritan can file a claim — if injured — against the person who created the need for the emergency response.
But a professional rescuer can make such a claim only if the injury results from some hidden, unknown danger not normally associated with the job they undertake.
As recently as 2017, the state Supreme Court declined to review an appeals court ruling that upheld the doctrine in Washington, according to Lingg, the attorney for the electrical cooperative.
And, just Monday, he notes, the appeals court published a decision that again affirmed the doctrine. In the ruling the appeals court upheld a lower court dismissal of a lawsuit filed by nine Seattle firefighters who were injured in a 2016 pipeline explosion and pursued claims against Puget Sound Energy and contractors.
“We think it (Lyon’s lawsuit) is a longshot,” Lingg said.
James McCormick, one of Lyon’s attorneys, said he hopes the argument that the doctrine violates the state constitution will prompt the appeals court and then the state Supreme Court to rule in Lyon’s favor.
“This is an obsolete doctrine, and it’s not fair,” McCormick said. “You look at his (Lyon’s life), and it is changed forever.”
This summer, Lyon did a lot of hiking to prepare for a climb of Mount Rainier, an ascent he had planned to honor his friends who died in the fire and as a kind of thank you to those who have supported him during his recovery.
“So many people from the Seattle area, and around the world helped me by sending cards,” Lyon said. “It had a tremendous positive impact, and I want to show them that I have gotten to the point where I can climb Mount Rainier.”
This would be another big challenge. One problem is regulating his body temperature. He no longer sweats as easily as others, so he risks overheating in the physical exertion of the uphill grind. He also cools down more quickly, and tends to go numb, which would be a problem when taking breaks on the chill upper reaches of the mountain. It also will be difficult for his hands to grip an ice ax.
He had hoped to summit on the fourth anniversary of the Twisp River fire tragedy.
Late last week, the climb was called off when some team members had to cancel.
Lyon is now looking forward to making it up the mountain next August.
Material from The Seattle Times archives was included.