Poisoned chalice

Published:  29 June, 2018

Germany’s highest court of law finds German fire service liable for AFFF used at incident and dismisses claim of public-office immunity.

On 14 June the German Federal Court of Justice in Karlsruhe, southwest Germany ruled that the fire service of the city of Baden-Baden could not claim immunity from liability after using PFOS-containing foam during an emergency.

The judgement is the result of an eight-year-long legal battle between the owner of an industrial premises and the city of Baden-Baden. It is widely regarded as an important test case that will affect the fire service’s operations and its use of firefighting foam.

Sometime prior to 2010 the local fire service had been donated old foam stocks by a chemical company on the Baden-Airpark industrial site. Without realising that it contained PFOS, the fire service used around 8,000 litres of this AFFF foam concentrate at an incident on 8 February 2010 involving a major fire that destroyed commercial warehousing and administrative buildings. As a result, the site in the district of Sandweier became heavily contaminated with fluorochemicals.

Baden-Baden took landowner Claus Reformwaren to court for the remediation and clean-up costs in 2010, with court judgements in 2014 and 2017 finding against the landowner. However, the latest judgement from the highest court in Germany has unanimously reversed the previous ruling on the grounds that the earlier judgement was clearly faulty and incorrect.

The German Federal Court of Justice judgement dismissed the claim that the actions of the fire service incident commander were covered by immunity to liability (haftungsprivileg) because it was an emergency, but rather that their actions counted as contrary to the obligations of public office (amtspflichtwidrig).

The full court judgement* was clear in its denial of the appeal of the defendant, the city of Baden-Baden. It said that the lower court had correctly recognised that the decision of the incident commander to use a PFOS-containing foam in order to prevent spread of the fire to an adjoining warehouse, represented a failure of judgement and was therefore a dereliction of duty in a public office, and that the incident commander had behaved negligently.

However, the judgement ruled that neither the incident commander nor the defendant could claim immunity from liability in accordance with German Civil Code regulation §680 BGB (Security management).

Based on the requirements of the obligations of public office under §839 BGB (Liability in the case of official breach of duty), every degree of negligence establishes liability when public-office obligations are violated. This also applies in the case of an emergency incident and when ensuring protection against danger under public law. It also said that a reduction in the level of liability did not apply in such cases.

The judgment noted that office holders are obliged to respond professionally to an urgent danger and are typically prepared for the associated emergency situation; they are specifically trained for this and can fall back on established procedures.

It said that the risk of a mistake by such emergency personnel was clearly smaller than for others involved by chance, and that public bodies with liability for public-office duty violations by their officers were better protected against the financial risks and costs associated with fire service incidents than private-sector emergency responders. The judgment noted that if a reduced level of liability were to be valid for all public danger protection as regards emergency situations, important areas of state business would be exempt from simple negligence. The judgement said that immunity from liability was neither compatible with the basic rules of official liability nor was it necessary.

The clear message from this judgement is that any degree of negligence by the incident commander nullifies any defence involving waiving liability in an emergency, removing immunity from liability or the award of civil damages, including the significant costs associated with environmental remediation.

The judgement is in line with the principle that the end-user – in this case the fire service and its employer the state of Baden-Baden – is responsible for the pollution caused and with the overarching environmental legal principle that ‘the polluter pays’.

Legal costs are estimated at around 1.9 million euros (US$2.2 million). Exact clean-up costs are unknown, but in January this year local reports quoted site remediation works, which include groundwater treatment, as amounting to two million euros (US$2.3 million) and rising.

*Bundesgerichtshof Karlsruhe (German Federal Court of Justice) 14 June 2018. “III ZR 54/17 Amtshaftung aufgrund Feuerwehreinsatzes bei Grosbrand”.

Image: Flag of the state of Baden-Württemberg (Shutterstock)

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