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Hauber v. Yakima County10/31/2002
Oral Argument Date: 06/13/2002
Concurring: Gerry L. Alexander, Charles Z. Smith, Charles W. Johnson, Barbara A. Madsen, Richard B. Sanders, Faith E Ireland, Bobbe J. Bridge, Visiting Judge
En Banc
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. 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 exhaust
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