Firefighter’s appeal in lawsuit rejected

Wednesday, Feb. 9, 2005 | 8:59 a.m.

SUN CAPITAL BUREAU

CARSON CITY -- The Nevada Supreme Court Tuesday rejected the appeal of a former Clark County firefighter-paramedic who was injured during a rescue effort in a 40-foot-high gasoline storage tank at Sloan.

The court upheld a pre-trial summary judgment that Mark Foulke could not sue the operators of the tank.

Foulke and a fellow firefighter descended into the tank to rescue a worker who had fallen in September 1997. The worker died and Foulke was in the bottom of the tank for at least 26 minutes.

He suffered a respiratory illness and could not return to work. He sued Ecology Control Industries Inc., CalNev Pipe Line Co. and Gatx Terminals Corp., companies that all had connections to the tank.

District Judge Michael Douglas, now a member of the Supreme Court, held that a common law called the "Firefighter's Rule" barred the suit. This rule prevents "a public safety officer from recovering damages for negligence for injuries suffered as a result of a risk occurring within the scope of his official duties."

Foulke has contended the three companies engaged in intentional or willful conduct that caused the problems and he is allowed to sue. There is an exception in the law to the "Firefighter's Rule" that permits such action.

The Supreme Court disagreed with Foulke, stating that the three companies did not engage in willful or negligent conduct that would have permitted Foulke's claim.

The court said there was no evidence that "indicates that any omission by ECI (the three companies) was intended to injure the firefighters."

Foulke also said the companies violated the state's Occupational Safety and Health Act and were cited by the state for violations. But evidence of these citations is inadmissible in a civil trial, the court said.

Douglas did not participate in the court's decision.