The Legal Implications of the Charleston Fire

By DAVID C. COMSTOCK

On June 18, 2007, nine career firefighters died when they became trapped inside of a burning commercial furniture showroom and warehouse facility in Charleston, South Carolina. Following this tragedy, various groups and organizations conducted several investigations. The National Institute for Occupational Safety and Health (NIOSH), an institute within the Centers for Disease Control and Prevention, conducted its own investigation and made 43 recommendations to avoid future firefighter injuries or deaths.1 Should the City of Charleston fail to implement these recommendations prior to another serious injury or line-of-duty death (LODD) in the city, the fire chief could find himself in the same position as Donald Edwards, former chief of the District of Columbia Fire Department.

On May 30, 1999, a fire at a District of Columbia townhouse resulted in two firefighter LODDs. Two other firefighters sustained significant burn injuries. Following the fire, NIOSH conducted an investigation and made recommendations to the city. It noted, however, that the District of Columbia had made little to no improvement after NIOSH’s recommendations were made following another firefighter LODD two years earlier. The estates of the two deceased firefighters and the two injured firefighters sued the District of Columbia, the fire chief, and other on-scene officers, alleging that the defendants violated their federal constitutional rights and committed intentional tortious acts against them by failing to train the firefighters and follow current recommended fire service practices.

The constitutional claims were eventually dismissed by a federal appellate court. However, both the trial and appellate courts determined that sufficient facts were alleged regarding the intentional or egregious acts by the individual officers and therefore permitted the lawsuits to proceed against them. All the defendants settled except one—Edwards. Because the lawsuit against him has not been dismissed, the case will now proceed, and the lawyers will take the depositions of Edwards and the many witnesses.

In the District of Columbia case, the lawyers alleged that the officer in charge failed to maintain the required contact with his crew member; the officer in charge failed to immediately account for a missing firefighter; the fire department failed to have sufficient on-scene personnel to perform effectively; the first-arriving unit failed to provide a size-up of fire conditions; and the fire department failed to have a backup unit in service to replace a truck company, which delayed ventilation procedures. The plaintiff claimed that the policy and custom not to implement recommendations to improve operations and to enforce the standard operating procedures (SOPs) was conscious and deliberate.

Other chiefs should not assume that they are immune from having the recommendations included within the District of Columbia or Charleston NIOSH reports used against them by an attorney trying to prove that this conduct constituted gross negligence or willful or wanton misconduct in the event of an LODD or serious injury. The more an officer deviates from the recommendations of these reports, the greater the risk of liability. Regarding the following key areas, ask whether or not you, as the fire chief or officer in charge of operations, training, or safety, could honestly answer that your department does the following.

POLICIES, SOPs, AND PLANNING

Conducts preincident planning inspections of buildings to facilitate the development of safe fireground strategies and tactics.
Develops and coordinates preincident planning protocols with mutual-aid departments in accordance with NFPA 1620, Standard for Preincident Planning.
Has a system in place to facilitate the reporting of unsafe conditions or code violations in buildings.
Has clearly written SOPs mandated to each department member to establish accountability and increased command and control effectiveness.
Has a written incident management policy in place that is followed at all emergency incidents.
Ensures that adequate numbers of staff are available to immediately respond to emergency incidents. (For career departments, this requires a minimum of four on-duty personnel assigned to both engine and truck companies.)
Implements and enforces written SOPs to ensure that self-contained breathing apparatus (SCBA) cylinders are fully charged and ready for use.
Has written SOPs and provides firefighters with training on the hazards of truss construction.

TRAINING

Has written incident management training standards and requirements for members expected to serve in command roles and that these standards include training in fire behavior, building construction, preincident planning, code development, identification of fire and life safety hazards, supervision of emergency operations, and deployment of assigned resources.
Ensures that all firefighters and line officers receive fundamental and annual refresher training in accordance with NFPA 1001, Standard for Fire Fighter Professional Qualifications (2008 edition), and NFPA 1021, Standard for Fire Officer Professional Qualifications (2009 edition).
Ensures apparatus operators are properly trained and familiar with their apparatus.
Ensures that firefighters are trained in air management techniques for maximum SCBA benefit in accordance with NFPA 1404, Standard for Fire Service Respiratory Protection Training.
Trains firefighters on actions to take if they become trapped or disoriented inside a burning structure.
Implements joint training and response protocols with mutual-aid departments.

COMMAND

Clearly identifies the incident commander (IC) as the only individual with overall authority and responsibility for management of all incident activities.
Has overall responder accountability at each incident.
Uses risk management principles.
Ensures that the IC establishes a stationary command post located in or tied to a vehicle to establish presence and visibility.
Ensures that the command post includes radio capability to monitor and communicate with assigned tactical, command, and designated emergency traffic channels for the incident.
Ensures that the IC or his designee is present at the command post.
Ensures that the command post is in the incident’s cold zone.

OPERATIONS

Ensures that the IC continuously evaluates the risk vs. gain in determining whether the fire suppression operation will be offensive or defensive.
Ensures the early implementation of division and group command in the incident command system.
Ensures that firefighters communicate interior conditions to the IC as soon as possible and provide regular updates.
Establishes a minimum of one ventilation team as part of the initial full alarm assignment.
Protects stretched hoselines from vehicle traffic and works with law enforcement or other appropriate agencies to provide traffic control.
Uses thermal imaging cameras during initial size-up and the search phases of the fire.
Ensures that on-scene chief officers who are not officially a part of the command structure refrain from giving tactical directions.

SAFETY, ACCOUNTABILITY, AND RIT

Ensures that the IC maintains close accountability for all operating fireground personnel, including those firefighters who arrive off duty or in personal vehicles.
Appoints a separate incident safety officer, independent from the IC, at each structure fire.
Initiates an accountability/inventory worksheet at the beginning of operations and maintains that system throughout the operation.
Ensures that firefighters wear their full array of turnout clothing and personal protective equipment (PPE) appropriate for the assigned task while participating in fire suppression and overall activities.
Establishes an initial rapid intervention crew that consists of at least two properly equipped and trained individuals.
Ensures that the IC receives and prioritizes Mayday transmissions.
Provides firefighters and emergency responders with effective incident rehabilitation.

COMMUNICATIONS

Establishes and enforces standardized resource deployment approaches and uses dispatch entities to move resources to fill service gaps.
Has established a central dispatch center to coordinate and communicate activities involving units from multiple jurisdictions.
Ensures that firefighters responding to mutual-aid incidents are equipped with mobile and portable communications equipment that can handle the volume of radio traffic and allow communications among all responding companies.

THE IC

Conducts a thorough evaluation of the situation.
Is aware of the location and function of all companies or units at the scene.
Evaluates the risk to responders with respect to the potential results of their actions at each situation.
Develops a command organization for the incident.
Conducts an initial incident scene size-up and risk assessment before beginning interior firefighting operations. (This includes a 360° size-up.)
Acts as director of fireground operations.
Establishes a stationary command post.
Assigns intermediate levels of supervision and organizes resources following SOPs based on the scale and complexity of operations.
Assigns personnel to operation functions to support an overall strategic plan.
Maintains crew integrity during fire suppression operations.
Closely coordinates ventilation operations to release heat and smoke with interior fire suppression operations.
Ensures that any offensive attack is conducted using adequate fire streams based on structure characteristics and fuel load present.
Establishes and maintains an adequate water supply.
Uses exit locators such as high-intensity floodlights, flashing strobe lights, hose markings, or safety ropes to guide lost or disoriented firefighters to an exit.
Puts adequate safety measures in place.
Ensures that firefighters wear a full array of PPE appropriate for the assigned task while participating in fire suppression and overall activities.
Initiates an accountability/inventory worksheet at the beginning of operations and maintains that system throughout the operation.

All fire departments, regardless of size, must address these recommendations with respect to current operations. Many departments may have difficulty complying with or implementing these recommendations in the near future. Nonetheless, the chief who ignores the current trends of case law and the changes in fire service standards does so at his own peril. Make every effort to ensure the safety of firefighters operating on the scene. Injured firefighters and the widows and children of those killed in the line of duty will have little sympathy for the fire officer who prevents everyone from going home.

Endnote

1. www.cdc.gov/niosh/fire/reports/face200718.html.

●DAVID C. COMSTOCK is a partner with the Comstock, Springer, and Wilson, LPA law firm in Youngstown, OH. He is a 28-year fire service veteran and chief of the Western Reserve Joint Fire District in Poland, Ohio. He also lectures on company officer operations, liability, and personnel issues. His articles have appeared in many fire service magazines, including Fire Engineering.