John K. Murphy, attorney and retired fire chief from Washington state, recently presented a free Webcast on training liability for fire departments. Here are some of the questions he got from viewers along with his responses. This information does not constitute legal advice; consult your attorney for specific counsel.
Q. My organization would always take pre-training vitals, which they have stopped doing. They state that all employees should be prepared for duty’ is this not a tremendous liability for us?
A. You should train like you are going to fight fire. A perfect time to work out the bugs in your rehab section should be accomplished during these training events. See National Fire Protection Association (NFPA) Standard 1584, Firefighter Rehabilitation and Medical Monitoring.
With the number of firefighters dying from heart attacks on the job, taking vital signs are an important part of caring for the firefighters. The department should also look to the NFPA 1582 standards for medical physicals for your firefighters upon hire and periodically thereafter.
Q. How can you protect yourself as a volunteer department…there’s limited funding, “lesser” qualified officers in charge of training, chiefs turning a blind eye, naiveté, etc.
A. The problem will arise when someone is killed or injured in training and the family sues the department. The best thing to do is to present a proposal to the chief citing the NFPA.
I have provided a link to a great article written by Forest Reader. http://emberly.fireengineering.com/articles/print/volume-154/issue-9/features/training-officer-101.html
Q. What are the common mistakes that may increase liability during live-fire training?
A. NFPA 1403, Standard on Live-Fire Training Evolutions, outlines the training requirements. A good example is the death of Rachael Wilson at Baltimore City (MD) that underscored many violations of 1403 that caused her death. Those can be found in the NIOSH report 2007-9 and included: Poor physical condition; ill-fitting SCBA; old bunker clothing; no safety officer; poor communications between all firefighters; multiple fires set during the training event; and that the candidate was not qualified to participate in the training as she was claustrophobic and could not self- rescue. Another fire training death was in Upstate New York where the training officer NIOSH 2001-38. Multiple fire sets in the egress pathways; the deceased firefighter was not qualified to wear a SCBA; used a live victim for search and rescue, and they did not find him.
Q. My question concerns structural bunker gear. Certain local statutes and the NFPA call for a 10-year life span. What can be done to address issues when department leadership states they went to a seminar and were told by a representative of our state labor department that the lifespan on bunker gear does not apply…so now when we do acquired structure training burns we could realistically have folks in “out of date” bunker gear. What would be the legal standpoint, as this could get very tricky should someone get injured?
A. This is a solid question when you have the enforcement agency making a comment that is contrary to the local administrative code and the NFPA. The issue should be addressed this way:
- Inspect the bunker clothing every six months and repair if necessary by the manufacturer.
- Clean the bunker clothing according to manufacturer’s recommendations
- Replace those sets of bunker gear that do not pass inspection or the repair of the clothing is not possible.
Yes, you may be going into a training burn or an actual fire with bunker clothing that is outdated; however, if it did pass your departments inspection and is in good serviceable repair, you will be okay.
The state labor department will likely NOT give you a definitive answer to the question – how long is the service life of protective clothing? They will provide squishy answers. However, if you have a proactive bunker inspection, cleaning, and repair program, you can extend the usable life of this equipment.
This holds true for your helmets, gloves, and the hood, as well.
Q. NFPA standards are not mandatory in all states. Additionally, there are many departments that lack the human and/or financial resources to fully comply. How can you mitigate this situation in a legal environment?
A. NFPA standards are generally not mandatory in any state unless the state adopts a particular NFPA standard or the department adopts a particular standard. Most states will adopt NFPA 1001, Standard for Fire Fighter Professional Qualifications, and the NFPA 1500, Standard on Fire Department Occupational Safety and Health Program. Many of the other NFPA guidelines are adopted or used as a standard without the standard being adopted as written. A good example is NFPA 1582, Standard on Comprehensive Occupational Medical Program for Fire Departments. Others components are the NFPA 1852 SCBA standards–most if not all departments adopt the provisions to ensure the safety of their firefighters.
Q. Based on national standards, there is a common attitude that fighting fire from a moving vehicle should never be allowed. In certain parts of the country where large, rapidly moving wildland fires are common, these fires are often attacked from moving apparatus. Wildland fire training only addresses suppression tactics conducted from the ground. Yet, the mobile tactics are valid for multiple reasons: first, you simply cannot keep up with the fire on foot, and second, a mobile attack is arguably safer due to reducing fatigue and the possibility of heat/stress related injuries. How can a department defend this practice in a legal environment?
A. Fighting a fire from a moving vehicle is DANGEROUS and I do not recommend that approach to wildland fires. It is important that your firefighters obtain the Red Card Certification or similar training for wildland firefighting.
I have never heard of a mobile attack on a wildland fire from an apparatus except from a paved or improved road. Fighting fire from a moving vehicle on unfamiliar terrain may create a liability if it does not meet a standard adopted as an approved and sanctioned practice by a national organization. The tried and true practice is to get ahead of a moving fire and set backfires or write off certain areas or homes if you cannot effectively and safely fight a fast-moving wildland fire.
Q. I totally agree with you that we need to “wash” some folks out, but how do you do that in the volunteer sector? A lot of times, you go blue in the face repeating yourself that some should not do what they are not qualified to do because “we need all volunteers no matter what.” How do you accomplish washing these folks out on the volunteer side and get beyond the opposition (higher leader roles)?
A. Tough question–how do you let a volunteer firefighter go? The best way is to establish certain criteria in attendance, training, and attainment of skills and responding to alarms. IT is much easier to have OBJECTIVE standards of performance for the firefighters and not SUBJECTIVE standards that make it difficult to let a firefighter go. Objective standards will allow the poorly performing firefighter to attempt to make improvements. If unable to do so, the person may elect to remove themselves from the department. Remember that these standards must apply to all of your firefighters and not single out the poor performer. Also remember the firefighter may have a learning or physical disability, making it difficult for him or her to perform and your department may have to provide reasonable accommodation under the Americans with Disabilities Act (ADA). Tough decision and great question.
Q. Can you adopt one NFPA standard and not another? Or is it an all or none deal? I often see this. Also, won’t the court of law look at NFPA regardless of if it is adopted or not because it is a national standard?
A. NFPA standards are generally not mandatory in any state unless the state adopts a particular NFPA standard or the department adopts a particular standard. Most departments cannot and do not adopt all of the NFPA standards due to the complexity and costs of implementation.
The NFPA standard was not intended to guide legal decisions; however the NFPA standards have been cited by some courts as the standard of care. Most defense attorneys will attempt to get them out of any testimony, and there is scarce case law on the use of a particular NFPA standard unless it is adopted by the particular authority (city, town, or fire district) and they fail to apply the standard and someone is killed or injured.
John K. Murphy JD, MS. PA-C, EFO, Deputy Fire Chief (Ret), has been a member of the career fire service since 1974, beginning his career as a firefighter & paramedic and retiring in 2007 as a deputy fire chief and chief training officer. He is a licensed attorney in Washington State since 2002 and in New York since 2012. Mr. Murphy consults with fire departments and other public and private entities on operational risk management, response litigation, employment policy, and practices liability, personal management, labor contracts, internal investigations and discipline, and personal injury litigation. He serves as an expert witness involving fire department litigation and has been involved in numerous cases across the country. He is a frequent legal contributor to Fire Engineering Magazine, participant in Fire Service Court Blog Radio, Fire Engineering‘s Fire Service Legal Minute, and a national speaker on fire and EMS legal issues.
