This year has certainly been interesting related to the legal issues facing the fire service. We continue to see the fire departments in the news for many high profile fires, rescues, service calls and the other good things we do on a daily basis.
We also continue to see the fire departments bogged down in legal controversies that reduce the effectiveness of organizational cohesiveness and at times polarize our personnel and departments especially in the area of personnel management and litigation.
We can only read about the legal effects of the claims or egregious actions by fire chiefs or firefighters, but we do not see or hear how it affects our firefighters or communities due to the discord created by litigation and possible breach of the public trust.
The general demeanor of our citizens is favorable towards the fire service. 2017 was a year of challenges, some failures and many successes. We find ourselves facing similar challenges for rolling into 2018 with new technology, challenging building construction, financial shortfalls, politics and reduction of firefighters in some areas, difficulty in finding sufficient volunteer firefighters in other areas, apathy and sometimes boneheaded decisions by our elected officials.
Attorneys out there are getting smarter in litigating against fire departments, many times using our own material against us such as the absences of policies, procedures and practices, failure to enforce policies already on the book, institutional thinking, unyielding culture and tradition, looking the other way when bad behavior occurs and other similar cracks in an otherwise solid organizations.
Yes, there are departments that need to be sued to change the behavior by the leadership, but that is an unnecessary process to get smart on those issues that harm us.
Many of the following legal examples are gleaned from the news media (not fake news), other reliable sources and from personal knowledge gained from my legal comrades whose legal practices attempt to assist fire departments and firefighters through the legal quagmire in their efforts to extinguish the legal fires.
This year-end review is a small sample and tip of the iceberg examining how we legally shoot ourselves in the foot with the following examples ripped from the headlines:
Training - We are not dying in any new way as many of the causes of death have remained consistent. Many of our firefighter fatalities are related to cardiac or health related events. Over 70 firefighter death have been reported as of September 2017 and deaths involving vehicles are on the rise. Over 60% of the deaths did not involve emergency duty and about 4% involved traumatic death while directly involved in firefighting operations. The most recent report from USFA (2106) there were 89 firefighter deaths. Of those, 23 were career firefighters, 56 were volunteers and 10 were part-time or full-time members of wildland or wildland contract agencies. 9 of these deaths resulted from training activities and many of those were medically related – heart attacks most often.
As we reduce the number firefighter deaths due to emergency action, we still depend on a rigorous training schedule as we are noting a decrease in actual fires which remain more dangerous than ever. Much of the danger originates from building construction and material contained within those buildings. We are an all hazardous organization and must train to a higher standard and maintain training records. Certainly the attorneys will be looking for them and they will be your best line of defense.
Failure to train – NY Firefighter dies in house fire.
A 19 year old firefighter was among the firefighters who responded to a NY house fire in 2015. He was lieutenant with the department and he went into the basement of the burning building with a hose team and got separated. The family of the firefighter sued the homeowners and arrived at a settlement agreement, based on the cause of the fire. However the State Department Labor investigation found that the Mount Marion Fire Department and the Centerville Fire Department, which was in command at the scene of the fire, broke a total of 14 regulations.
Those violations included two key points: the first one, the deceased firefighter had taken an air tank unit off a Centerville Fire Department truck instead of using his own tank, investigators determined and the Centerville air tank was a different brand and size from his own and he had not been trained in its use, a violation of safety regulations. Second, state investigators ruled and firefighters who battled flames with Rose in the basement of the house failed to notice when he disappeared. Firefighters monitoring from outside lost contact with Rose as well.
Technology - Social media continues to thin the ranks of the fire service. As we say in the industry, these firefighters are committing Social Media Career Assisted Suicide (SMCAS)
Cell Phone Cameras – Firefighters downloading pictures of events on their social media sites. Four states on the East coast (NJ, NY, WV and Conn) have made it a crime to for first responders to post pictures of accidents and other emergencies on their social media sites. There are numerous incidents where firefighters have been terminated, departments sued by surviving family members because pictures of their injured or deceased loved ones have been posted on a firefighter’s social media site.
Driving – getting to our emergencies is an important part of our job. All too often, we collide with other vehicles including tangling with our own co-responding vehicles, mostly at intersections. Following some recognized training standard is a must for your volunteer and career firefighters. You must also document those training sessions as well listing the curriculum, skills testing and the qualifications of the instructors. Also, training should incorporate the mandatory use of seatbelts for the firefighters as part of your driver training program.
Lack of a driving training kills your firefighters and the citizens they protect and results in large payouts by the department. We have determined over time that responding at high speed does not change the outcome of the emergency especially when response speeds causes accidents. Hopefully over time we can reduce the use of Lights and Sirens helping us arrive at the scene safely. It is also important to have an alcohol response policy preventing this type of incident. In Indiana a volunteer firefighter was killed responding to a crash Friday night when police say another firefighter arrived drunk, hitting him and three vehicles.
Embezzlement/Stealing – Of course, we have to include this criminal act, as every year we have fire chiefs or their staff members think they can steal money from the department. A South Carolina fire chief who was convicted of embezzling funds from his department has been sentenced to 33 months in federal prison. The sentence was handed down to former St. Paul’s Fire District Chief. A co-defendant, was also convicted. She was sentenced to 14 months in prison. Both will be required to serve 3 years of supervised probation upon their release. They both faced up to ten years in prison and a fine of up to $250,000. Prosecutors claim they embezzled approximately $215,000 in federal funds from a FEMA grant for a new fire station.
Personnel – our greatest asset and greatest liability. Millions of dollars are spent defending our departments and firefighters who discriminate against each other in our departments. Here are some cases:
Inspection Liability - Ghost Ship Fire – Recently a Judge in this case permitted the plaintiffs to pursue their claim against the City of Oakland, Alameda County and the State of California who have been added to a mass-tort lawsuit arising out of the Ghost Ship fire. The December 2, 2016 fire in a converted warehouse known as the Ghost Ship claimed the lives of 36 concert-goers and injured scores of others. The amended lawsuit alleges that city, county and state officials were aware of fire and building code deficiencies in the warehouse and failed to address the problems. Those deficiencies included inadequate means of egress, lack of emergency lighting, lack of an adequate fire alarm system, lack of an effective sprinkler system, and electrical problems. I crafted an earlier article related to inspection liability and some of the immunities offered to fire departments in this important activity. This case may reset that thought process about your immunities under the law.
Finally, you have to have a healthy set of up to date policies. When enforced, they will help guide your department and hopefully prevent legal jeopardy. We should add a Code of Conduct and Ethical Standards as well. We've discussed in numerous forums, a fire department MUST develop polices and enforce those policies. You cannot discipline someone if there is no policy in place.
OK, that’s enough for now and is only the tip of the fire service legal issues iceberg. I could provide some moral and legal anecdotal comments to these examples, but I think you get the message. Let’s do good things out there and stay out of the press and especially out of the courtroom.
I would like to thank my legal cohorts and fellow fire officers: Chief Chip Comstock JD (OH), Chief Brad Pinsky JD (NY) and Chief Curt Varone JD (RI) for their valuable contributions to the legal side of the fire service. Listen to us monthly on Fire Service Court Blog Talk Radio for the latest legal issues facing the fire service. Have a safe and legally sane 2018.
Sources: Firelawblog.com; numerous newspaper articles; classes taught at national conferences; consultation with firefighters and fire chiefs; firefighter rumor network and many others.