SOP`S AND LIABILITY
BY JOHN T. BENTIVOGLIO
The fire service today is confronting what police departments experienced more than 20 years ago: an explosion in costly lawsuits. Fire departments and municipalities have responded, in part, by establishing written standard operating procedures (SOPs) for many operational and administrative matters. SOPs can improve operational performance by providing uniformity in practices, establishing clear lines of responsibility, and enhancing accountability during emergency operations. Through this increased performance and a reduction in operational errors, SOPs also can reduce a department`s exposure to lawsuits.
SOPs are not, however, an easy way out of today`s liability dilemma. In fact, poorly written SOPs may actually increase a department`s liability for emergency operations.
LAWSUITS FROM EMERGENCY OPERATIONS
Lawsuits arising from emergency operations (as opposed to personnel or administrative matters) generally involve claims of “negligence.” In a negligence case, the plaintiff must prove four elements:
1. The fire department owed a duty of care to the plaintiff.
2. The department breached or violated that duty.
3. The department`s failure was the “cause” of an injury to the plaintiff.
4. The plaintiff suffered damages.
Generally, fire departments are immune from lawsuits for negligent fireground operations under the “public duty doctrine.” Under this doctrine, public safety agencies are held to owe a duty to the general public, not specific individuals. Accordingly, individuals cannot sue for injuries resulting from negligent emergency operations.1
Unfortunately, there are exceptions to the “public duty doctrine.” One important exception is the case in which a public safety agency (fire or police) assumes a “special duty” to individual citizens by issuing written operating procedures or guidelines. The theory is that when a department establishes formal procedures, it assumes a “special duty” to individuals to follow such procedures. When a department violates its own standards, it can be held liable.
LIABILITY BASED ON SOPS
Under the “special duty” exception, public safety agencies have been held liable for failing to comply with their own standard operating procedures or other written guidelines. In Fudge v. the City of Kansas City, city police officers temporarily detained an intoxicated person.2 Shortly thereafter, the intoxicated person was involved in a motor vehicle accident in which a person in a second vehicle died. A Kansas City Police Department SOP stated that an individual who is incapacitated by alcohol “will be taken into protective custody.” The Kansas Supreme Court ruled that, by issuing the SOP, the department assumed a special duty of care to protect other citizens from persons who were drunk. By failing to detain the intoxicated driver, the police were deemed liable for the death of the person in the second car. Judges in other states have endorsed the reasoning and/or result in the Fudge case.3
SOPS AS EVIDENCE OF NEGLIGENCE
In states that do not recognize the “public duty doctrine” and hold fire departments liable for negligence, poorly written SOPs may pose an even greater danger. In these states, even when SOPs are written in discretionary terms–i.e., in terms of what personnel “may” or “should” do–courts frequently allow SOPs to be introduced into evidence to establish the relevant standard of care.
As a practical matter, this shifts the burden onto the fire department to justify any deviation from the agency`s written policies and procedures. When jurors sympathize with the plaintiff, they may find it perfectly reasonable to judge the department`s action(s) by its own standards. What jurors may fail to appreciate is that, in most emergency incidents, minor (and sometimes major) deviations from standard procedures are the norm–not the exception.
In one case, the family of a hostage killed in an airplane hijacking sued the FBI on the grounds that the FBI agent failed to follow the guidelines in an FBI handbook on hijackings.4 The federal court held that, while the agent`s failure was not negligent in and of itself (i.e., was not negligence “per se”), the jury could consider the guidelines as evidence of the “standard of care” in hijacking incidents. There are numerous cases with similar results.5
Most of the recent cases in this area have involved police departments. However, the legal theories are applicable to fire departments as well. And while the fire service has not been a frequent target of plaintiffs` lawyers in the past, suits of this type are on the rise.6
PRACTICAL IMPACT ON FIRE DEPARTMENTS
The practical impact of these cases is that, by establishing detailed SOPs for operational responses, fire departments may impose a higher standard of care on themselves than would otherwise exist–increasing the department`s exposure to costly lawsuits.
Here`s an example: Recognizing that vehicle stabilization may reduce aggravation of injuries during extrication, a fire department writes an SOP that states, “All vehicles shall be stabilized and the patient immobilized whenever the possibility of cervical spine or other injury to a passenger exists.”
An ambulance and engine respond to a motor vehicle accident. There is minor damage to the vehicle. The patient is “shaken up” but denies specific injury. The officer in charge, an EMT and engine lieutenant with 10 years of experience, decides not to stabilize the car because there is no indication of neck or back injury, traffic is severely congested, and the patient is complaining of being cold. Out of an abundance of caution, the lieutenant instructs the ambulance crew to immobilize the patient via KED and backboard. At the hospital, the patient experiences neck and shoulder pain, and the ER determines he has significant back injury. Since the at-fault driver is uninsured, the victim sues the fire department, alleging the injury was aggravated by the failure to stabilize the vehicle–as required under the SOP.
Would you want to defend this claim? Even though the actions of the unit officer appear reasonable, since the department may have assumed a “special duty” to stabilize the vehicle, the failure to do so may be negligent. Even if no special duty is found, the SOP may be introduced as evidence of the standard of care. This invites jurors–with 20/20 hindsight–to substitute their own judgment for that of the experienced unit officer and hold the department liable.
SUGGESTIONS FOR WRITING SOPS
I am not suggesting, of course, that departments should not issue written SOPs. As noted above, properly written SOPs can play an important role in increasing fireground effectiveness and reducing liability at the same time. Fire service managers must, however, understand the limitations of written SOPs as well as the benefits.
Here are some suggestions:
1. Determine the need for a written SOP. Prior to issuing a new SOP, a department must ask two questions. First, what are the possible problems that the SOP is designed to correct? Second, is an SOP the right “tool” for the job?
Take the new OSHA confined space regulation.7 A department recognizes that, since it does not have a standard response for confined space incidents, the initial dispatch may not bring a sufficient number of properly trained and equipped personnel to the scene. A properly drafted SOP could address this problem by determining how many engines, ladder trucks, heavy rescue squads, and/or command officers are needed to meet the OSHA standard.
Another problem might be that it is unclear what tasks individual units are to perform on arrival. An SOP could address this problem by establishing initial responsibilities of first-arriving units (e.g., the first-arriving engine sizes up the scene and prevents further entry; the first heavy rescue squad is responsible for rigging and extrication), while allowing the incident commander discretion to make changes as necessary.
2. SOPs are no substitute for training. Fire service managers must avoid the temptation to use SOPs to solve training problems. Take the confined space example. If the deficiency is that fire/rescue personnel are unfamiliar with confined space entry and rescue, a detailed, step-by-step SOP that specifies how atmospheric monitoring shall be conducted, what specific rigging system shall be used, or how the EMS sector should be run won`t solve the training problem. Many departments are tempted to issue SOPs to correct training problems because it is much easier (and cheaper) for three or four people to draft an SOP than it is to ensure that all departmental personnel are adequately trained to respond to a specific type of incident.
3. Avoid mandatory language. Once it is determined that an SOP is appropriate, the SOP must ensure that incident commanders, unit officers, and fire/rescue personnel have the discretion they need to mitigate emergency incidents. Use of words like “shall” or “will” leave no room for discretion and impose duties on fire/rescue personnel that may distract from more pressing issues. Whenever possible, emphasize flexibility based on the specifics of the incident.8
4. Avoid excessive detail. SOPs should set general guidelines for emergency operations, such as the type and number of apparatus dispatched on specific calls and the general responsibilities of such units when they arrive on scene. Greater specificity–even mandatory language–may be appropriate when critical safety issues are involved, such as requiring personnel to work in pairs when inside or on the roof during a structure fire. However, SOPs should not attempt to be detailed, step-by-step guidelines for emergency operations.
5. Include a preamble. Operational SOPs should begin with a preamble or introductory statement explaining that the procedures are general guidelines which may be modified by incident commanders, unit officers, and other personnel as conditions dictate. The preamble should further state that the SOP does not create rights or duties that are enforceable in court.
* * *
As previously mentioned, written SOPs for emergency incidents can, when properly drafted, increase a department`s operational performance and therefore reduce its exposure to costly lawsuits. (This is particularly true where they are consistently enforced.) SOPs are not, however, a magic solution to the ever-increasing problem of lawsuits against fire departments. Drafting an SOP to solve what is essentially a training problem will do little to improve operational performance and may increase a department`s liability.
Before issuing an SOP, fire service managers must identify the problem they are trying to solve and decide whether an SOP is the right “tool” for the job. This can only be done where the benefits–and limitations–of SOPs are clearly understood. n
Endnotes
1. See, e.g. Coty v. Washoe City, 839 P. 2d 97, 98 (Nev. 1992) (“a fire department is not generally liable to individuals because the duty to fight fires runs to all citizens and is to protect the safety and well-being of the public at large… [t]herefore, the duty of the fire and police departments is one owed to the public, but not to individuals.”); Commerce & Industry Insur. Co. v. City of Toledo, 543 N.E. 2d 1188 (Ohio 1989) (the duty imposed on a fire department is a duty to the public, and a failure to perform such a duty results in a public, not private, injury); Dahlheimer v. City of Dayton, 441 N.W. 2d 534 (Minn. App. 1989) (fire department`s protection of private property is in nature of general duty and city cannot be liable for department`s negligence).
2. 720 P. 2d 1093 (Kan. 1986).
3. See generally, Coty v. Washoe County, 839 P. 2d 97, 101 (Nev. 1992) (Springer, J., dissenting) (sheriff deputy`s violation of departmental procedure requiring arrest of intoxicated drivers was negligent and “affirmatively caused” death of persons killed in motor vehicle accident); DeLong v. County of Erie, 457 N.E. 2d 717, 721-22 (N.Y. 1983) (although municipality generally owes no duty to protect the public in providing police or fire services, county assumed a “special duty” when it established 9-1-1 system and may be liable for negligent acts of dispatcher).
4. Downs v. United States, 522 F.2d 990 (1975).
5. See, e.g., Lee v. City of Omaha, 307 N.W. 2d 900 (Neb. 1981) (in determining whether police officers owe a duty of care to other drivers in responding to emergency incidents, court looked to police department`s own written SOP and established such duty); Maple v. City of Omaha, 384 N.W.2d 254, 259 (Neb. 1986) (“standard operating procedure [on use of emergency lights and siren] is evidence of proper signals for given circumstances”).
6. See, e.g., “It`s Time to Address Fire Service Liability,” NFPA Journal, July/August 1993, p.40. In one notorious instance, a newsletter for personal injury lawyers ran an article entitled, “Sue A Fire Department for Fire Damage,” discussing how an attorney successfully sued a fire department for negligent fireground performance and how other lawyers could mimic this “success.” See Lawyer`s Alert, Vol. 12, No. 8, April 13, 1992, p.1.
7. 29 C.F.R § 1910.146.
8. At least one court has held that an SOP using the word “will” removes all discretion and imposes an absolute duty on public safety personnel, whereas the term “may” recognizes the need for operational flexibility and does not create a special duty for public safety personnel. Mills v. City of Overland Park, 837 P.2d 370 (Kan. 1992).
JOHN T. BENTIVOGLIO is a volunteer fire/rescue sergeant and paramedic with the Bethesda-Chevy Chase (MD) Rescue Squad. He graduated from the Georgetown University Law Center in 1993 and currently practices in Washington, D.C.
