BY DANNY KISTNER
In today’s litigious society, few would dispute the need for today’s fire service administrator to be prepared for legal issues erupting from labor disputes, sexual discrimination, retaliation, hostile work environments, firefighter discipline, and the like. But, is the individual company officer or incident commander equipped for the challenge he may face defending his actions in court following an incident with a particularly high dollar loss, severe firefighter or civilian injury, or catastrophic loss of life?
THE PROBLEM
Traditionally, the fire service has enjoyed protection from most civil and criminal proceedings through the universally held common law concept of governmental immunity. Plainly stated, government entities, including the municipal fire service in most states, were considered immune from liability even when using inadequate or inferior performance standards (FEMA, 2000).1
Clearly, when you examine the headlines in recent years, the fire service and individual firefighters are being held more accountable for their actions. The Kuna (TX) Volunteer Fire Department was found liable in the deaths of two firefighters in a July 1995 wildland fire (Young, 2004).2 The Lairdsville (NY) assistant chief was found guilty of criminally negligent homicide in a September 25, 2001, training fire in which one firefighter lost his life (2004).3 The Clark County (NV) Fire Department was served with a lawsuit following an October 15, 2001, fire at Aerotech, Inc., alleging firefighter action and/or inaction as a contributing factor in the loss (Knapp, 2002).4 The New Jersey Public Employees (Department of) Occupational Safety and Health describes contributing factors in the deaths of three firefighters and three children in a July 2002 house fire (Nark, 2002).5 Additionally, the Fire Chief’s Association of the District of Columbia warns fire chiefs to beware of insurance companies attempting to recoup costs by suing fire departments (FCABC, 2004).6
We can theorize the rationale for this shift in accountability by taking a critical look at ourselves and examining other industries tied closely to the protection of human life.
Is the fire service prepared, really?
DISCUSSION
Fire departments and fireground officers are generally protected from legal action by a common law known as qualified immunity. Simply, Savrin, P. (2002) states, ” … qualified immunity protects public officials from being sued for damages unless they violated clearly established law of which a reasonable official in his position would have known. The intent of this law is to protect civil servants from the fear of litigation in performing discretionary functions …. “7
Of key importance in the definition of qualified immunity is “… a violation of a clearly established law of which a reasonable official would have known.” Though not clearly established law per se, an argument can be made that NFPA 1403, 1500, 1710, and 1720 are largely gaining favor as the established industry standard. Some communities have even adopted NFPA standards as official policy. Discretionary functions refer to the judgment fireground officers must make during an incident. As long as an incident commander (IC) operates in good faith, does not deviate from established procedure, and does not commit a clearly established wrong, he falls under the qualified immunity umbrella. In other words, do what is reasonable given all your training.
Every firefighter death is scrutinized and evaluated by the National Institute of Occupational Safety and Health (NIOSH). According to the NIOSH home Web page, Congress recognized the need for comprehensive firefighter fatality investigations and approved funding for this task in 1998.8 Additionally, several states have their own system for line-of-duty death investigations. Contributing factors to fatalities are strikingly similar in a large percentage of these fatality reports. Communications, lack of an equipped and trained rapid intervention crew, failure to establish an incident management system, and lack of accountability are some of the usual citations. It can be postulated policies were in place prior to any given incident but failed to be implemented.
Stakeholders such as the community, business owners, firefighter survivors, and firefighters themselves are simply saying, “Enough!”
It is not sufficient that ICs be aware of policy and procedures. ICs and, of equal importance, company officers need to ensure their firefighters are aware of these policies and procedures. They need to be aware of their firefighters’ job knowledge baseline, as we have learned from the Kuna VFD incident.9 Officers who are not cognizant of their own and their firefighters’ knowledge, skills, and abilities not only are opening themselves up for liability but are establishing the foundation for disaster. Ignorance of the capabilities of those you are sending into harm’s way can be construed as negligence. In fact, the United States Supreme Court ruled unanimously in 1989, “(City of Canton v. Harris) … a city may be held liable for failure to train its employees properly.”10
According to the FEMA text Political and Legal Foundations of Fire Protection (2000), one of the most common reasons for lawsuits against the fire service is personal injury due to negligence in firefighting operations.11 Hogan’s Legal Aspects of the Fire Service, 3rd edition (2000), defines negligence as, ” … a (civil wrong) that holds a person liable for damages proximately caused by carelessness .U “12
In the words of noted risk management guru Gordon Graham, “Can’t you hear that train coming?”13
Hogan further states that negligence must contain the following elements:
1. The defendant owed the plaintiff a duty.
2. There was a standard of care for that activity.
3. The defendant breached that standard of care.
4. The plaintiff was damaged.
5. The defendant’s action was the proximate cause of that damage.14
Chief Dan Grammar of the Garland (TX) Fire Department has long stressed the importance of the three Ps: preparedness, professionalism, and proactivity.15 Is the fire service truly prepared to send firefighters into a hostile environment if ICs don’t know the construction of the building they are going into? Is the fire service truly prepared if firefighters are not able to operate all the equipment they may be called on to use at an incident? Is the fire service truly prepared if officers cannot verify firefighters know how to call for a Mayday, or when? Is the fire service truly prepared if officers are not students of fireground strategy and tactics?
Is the fire service professional if firefighters don’t take the time to learn their response districts? Is the fire service professional if incident commanders justify an interior attack on an involved, vacant structure on a marginal probability that someone may be inside? In the name of machismo, does the fire service jeopardize firefighters during rescue operations in untenable situations for souls that could not possibly survive?
Is the fire service proactive if ICs don’t use the collective knowledge gained prior to an incident? Is the fire service proactive if officers don’t routinely practice company evolutions to enhance efficiency? Is the fire service proactive if firefighters don’t take the time to learn the “widow makers” in respective response areas? Is the fire service proactive if firefighters don’t routinely train on Mayday? Is the fire service proactive if fireground commanders don’t stay current with accepted strategies and tactics?
In a 1989 decision, the Canadian Supreme Court ruled, ” … municipalities in the Province of Quebec are liable for damages resulting from the negligence of its firefighters and from defective firefighting equipment (Ross, 1992).”16
Life safety is the ultimate mission of the fire service, as it is with the health industry. Much of the health industry is federally regulated under the Department of Health and Human Services, Food and Drug Administration (FDA). It is mandated by the code of Federal Regulations to follow the 21 CFR 820 Quality System Regulation.17 Under part 820, a federal auditor examines the quality system established by every company that falls under this regulation and cites that company for any failings to meet the requirements of the code. Companies, and especially upper-level management, are held responsible for any violations; criminal charges can result from any improprieties or failure to make corrections cited by inspectors.
Is the fire service any less responsible for human life?
The first requirement of the Quality System Regulation is the development of a Quality Policy Manual (QPM). This manual not only identifies the mission and values of the company but also sets the foundation for procedure. In a general sense, the QPM identifies who does what, who does it when, and where to find policy and procedures. Reference charts exist to demonstrate the requirement for a policy, such as a federal or state mandate, the corresponding SOP, and any additional references that may be applicable, such as forms. All company employees are given instruction on the QPM; this instruction must be verifiable by mandatory record retention. Inspectors review the QPM prior to the actual inspection. The inspection, then, ensures that the company does what it says it does.
The fire service should take lessons from the health industry. The Quality System Regulation exists to protect both the public and the industry. A formal system of checks and balances exist, and compliance is mandatory. Audits at given intervals ensure compliance. The threat of punitive action gives muscle to the audit and compels action. A company retains the services of a regulatory affairs manager in some form and must perform internal audits as set forth by the company. Results are shared with executive management and are not subject to review by federal auditors. This helps to promote truthfulness and gives executive management a true picture of what is happening in the organization.
SOLUTIONS
Fire chiefs including Alan Brunacini, Dennis Compton, Rick Lasky, Frank Montagna, John Salka, and many others have been making strides toward a culture shift within the fire service. Collateral damage is no longer acceptable. We have identified the most prudent tactics to date to use on incidents. We have identified cultural patterns within the fire service that need to be changed.
Bottom line: We know what is wrong. We had better fix it!
Garland (TX) Fire Department Training Officer Lieutenant Glenn Johnson states, “Decisions need to be more academically based rather than based on (tradition).”18
A total reformation of fire service culture is probably necessary but unrealistic and would probably alienate many from the very reasons they entered the fire service in the first place. Having said that, though, fire officers of the future will be hard pressed to remain free from liability unless the following minimal actions are observed:
- It is incumbent on company officers to know the limitations of their personnel. Training needs to take a more aggressive posture at the station or company level. Training needs to be verifiable, realistic, and ongoing. Officers should define the weaknesses of their personnel prior to an incident and adjust strategies accordingly.
- Incidents that result in serious injury, death, or close calls should be more stringently investigated to determine what went wrong or what could be done to prevent a similar scenario from recurring. According to Gordon Graham (2004), such reporting should be mandatory but nonpunitive.19 I agree reporting should be mandatory, but sustained occasions of profound violations or omission of departmental procedure should result in some form of discipline. SOPs should reflect mandatory reporting. Formal and mandatory post-incident critiques should follow all significant incidents but especially those involving high-dollar loss and those where accusations of substandard performance are made.
- An individual versed in thorough investigative techniques, such as a fire investigator or police detective, should report on both of the above-mentioned occasions. The report should be unbiased and keep to the facts. The investigator should collect statements immediately following the incident while it is still fresh in everyone’s minds, collect photos of the scene, gather records, and write a formal report. The report should be reviewed by a qualified panel and submitted to the fire chief for action. Check with your local legal authority, as these reports may become public record in some locales; however, as long as recommendations are acted on and not overlooked, liability is limited in most instances.
- Update policies and procedures to reflect current operating practices. Instruct officers to comply with SOPs and directives and not selectively enforce them. As with private companies, it would be prudent to appoint an officer as SOP and directive oversight. This same officer can function as a “regulatory affairs manager.” Conduct internal audits to determine shortcomings in compliance with directives, and identify corrective actions to take. A timeline in the form of a Gant chart should give projections for deficiencies to be brought into compliance. Clearly established goals and timelines will eliminate ambiguity and promote prompt compliance.
Governmental immunity seems to be eroding, and it is being increasingly challenged. Qualified immunity is still relevant as long as entities and individuals can defend their on-scene actions and decisions. Immunity will apply except in situations where it is deemed unfair. The fire service cannot respond to incidents and hope that events will work themselves out. An IC’s judgments will be scrutinized more and more, and he will be held accountable for any errors in judgment. Whether that officer endures will be determined by how well prepared he was prior to the incident and if he made decisions based on sound rationale.
Company officers and fireground commanders have a duty to their firefighters, their firefighters’ families, and the community in which they serve to provide the best and most professional service possible. Do what is right. Anything less is unacceptable.
Thanks to William Glazer, assistant city attorney, City of Garland, Texas; Dan Grammer, chief, City of Garland (TX) Fire Department; and Glenn Johnson, training lieutenant, City of Garland (TX) Fire Department for their assistance in the preparation of this article.
References
1. “Political and legal foundations of fire protection,” MD: FEMA, USFA, NFA, 2000.
2. Young, B. “VFD and government agency found liable for firefighter deaths.” Retrieved from Web site: http://www.fd-doc.com/VFDLiability.htm, 2004.
3. “Court upholds firefighters conviction in trainees death,” posted January 1, 2004. Retrieved March 10, 2004, from Web site: http://www.planetfirehouse.com. Blackistone, S. “Firefighter training death leads to criminal indictment.” Firehouse, June 2002; p 22.
4. Knapp, G. “Aerotech to sue Clark Co. Fire Department,” Retrieved March 1, 2004, from Web site: http://www.klastv.com/Global/Story.asp. Cesare, C (2002). “Fire Marshal says Aerotech to blame for deadly blaze.” Retrieved March 1, 2004, from Web site: http://www.klastv.com/Global/Story.asp.
5. Nark, J. “Actions at fatal 2002 N.J. fire faulted,” Retrieved February 24, 2004, from IAFC Web site: http://www.iafc.org/onscene/July15/feature1.htm, 2002.
6. “Third party liability and the fire service,” Retrieved May 1, 2004, from Web site: http://www.fcabc. bc.ca/litigation.htm.
7. Savrin, P (2002). “Qualified immunity analysis under recent Supreme Court pronouncements.” Retrieved on 4/14/04 from Web site http://www.fmglaw.com/ NAS2632.doc.
8. NIOSH homepage (Revised May 2003). Retrieved on 5/01/04 from Web site: http://www.cdc.gov/niosh/ implweb.html.
9. Young, ibid.
10. Ross, D. “Training to decrease liability.” Health and Safety. July 1992; p. 4-5.
11. FEMA, ibid.
12. Hogan, L. “Legal aspects of the fire service.” MD: Amlex, Inc., 2000.
13. Graham, G. Risk Management. Texas Association of Fire Educators Conference. January 2004. San Antonio, Tex.
14. Hogan, ibid.
15. Personal communication with Garland (TX) Fire Chief Dan Grammer; Promotional interview, March 2003.
16. Ross, ibid.
17. 21 Code of Federal Regulations, Part 820 Quality System Regulation.
18. Personal communication with Garland (TX) Training Lieutenant Glenn Johnson at FDIC, Indianapolis, May 2004.
19. Graham, ibid.
DANNY KISTNER has been with the Garland (TX) Fire Department for 21 years and is currently a battalion chief. Having spent time on ambulance, engine, and truck companies, he now serves in Administration overseeing communications, EMS, training, and support services. Kistner has an associate’s degree and is completing his B.S. in fire service administration with the National Fire Academy’s Degrees at a Distance Program at Western Oregon University.
