Sun Prairie gas explosion

This photo from July 11 shows the aftermath of a gas explosion in downtown Sun Prairie. 

A Dane County judge denied motions Monday to dismiss lawsuits brought by Sun Prairie firefighters and their families over a massive gas explosion last summer, concluding that she didn’t have enough information to find that the suits were barred by a legal doctrine that applies to first responders such as firefighters.

The companies — Verizon contractor Bear Communications, subcontractor VC Tech, USIC Locating Services and WE Energies subsidiary Wisconsin Gas, which owns the gas line — all said that the lawsuits are barred by a doctrine in state law called the “Firefighter’s Rule,” which bars emergency responders from suing those whose negligence brought the firefighter to the scene of an incident.

Abigail Barr, widow of Sun Prairie Fire Capt. Cory Barr, who was killed in the blast, and firefighters Ryan Welch and Greg Pavlik, who were injured, filed lawsuits on Dec. 20, the same day Sun Prairie police announced no criminal charges would be pursued for the July 10 explosion that destroyed several buildings in downtown Sun Prairie. The lawsuits were recently consolidated into one case.

Police said a broken chain of communication between utility contractors and subcontractors led to a gas line being improperly marked before it was struck by a worker for VC Tech. It was never determined what caused the resulting gas leak to ignite.

The companies all filed motions to dismiss the lawsuits, which Dane County Circuit Judge Valerie Bailey-Rihn denied Monday, though she said the companies could revive the motions later in the case after both sides gather more facts. Precedent-setting cases in which the Firefighter’s Rule was invoked generally have been dismissed at a much later stage, she said.

“In all the cases I looked at, in every single one of them, it was either a summary judgment decision or later in the proceedings,” Bailey-Rihn said. “Here, we’re on a motion to dismiss. I find that in complex cases such as this, the public policy considerations are too important to decide on a motion to dismiss. There are factual and other issues here that should be fleshed out.”

The public policy questions raised by the dismissal motions, she said, are simply not suitable for a motion to dismiss.

“If the parties want to revisit this issue after discovery on a fuller factual record that this court can evaluate, I will allow them to do so,” she said. “But at this stage of the proceedings, I do not have enough information to make a public policy decision, because one way or another I have a feeling that it’s not going to end with me.”

The Firefighter’s Rule, according to briefs filed in the Sun Prairie case, dates from a 1970 Wisconsin Supreme Court decision in which the court, citing public policy concerns, barred an injured firefighter from suing a railroad company that negligently started a fire. In the decision, the court held that one who negligently starts a fire is not liable for the negligence when it causes injury to a firefighter who comes to extinguish the blaze.

A 2000 Wisconsin Supreme Court decision expanded the Firefighter’s Rule when it held that it also applies to emergency medical personnel.

In court, VC Tech lawyer Charles Kramer argued that the Firefighter’s Rule bars the lawsuit in this case because even though the call was a gas leak, “they’re dealing with fuel for a fire, and that puts us within the firefighter role.” Firefighters also assist with evacuations as part of their jobs, he said.

Ronald Harmeyer, an attorney representing Middlesex Insurance, which anticipates making $600,000 in workers compensation payments as a result of Barr’s death and injuries to Welch and Pavlik, told Bailey-Rihn that the company’s investigator said it’s not even clear at this point whether Barr was at the scene as a firefighter or as a business owner. Barr and wife Abigail Barr owned Barr House, which was destroyed by the blast, and was called to the business by his brother-in-law, Harmeyer said. But Barr’s role may have changed when the situation became a fire call, he said.

He argued that’s just one of the issues that’s not known at this point, he said, making dismissal premature.

Robert Napleton, representing the firefighters, said they deserve their day in court. In what he called a “classic scenario” involving the Firefighter’s Rule — a single negligent person causing an incident bringing firefighters to a scene — the lawsuits would not have been brought.

“But that doesn’t apply to these facts,” he said. They weren’t at a scene to put out a fire, but because VC Tech had ruptured a gas line. To rule for dismissal, he said, “would send the message that careless contractors would not be held accountable for injuries to first responders.”

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