The Lawsuit Litmus Test

Frivolous lawsuits are the bane of the public and private sectors. One of the more famous ones is the story of the customer who sued McDonalds for negligence because she was burned when she removed the lid of a cup of coffee. The claim: it was too hot to be safe. She won the suit for $600,000.

Anyone in public service knows that legal action or a lawsuit may be just the next call or the next shift away. Liability is the kindergarten of basic words taught to EMTs and paramedics. EMS transports patients, regardless of the lack of injury or illness, because of liability.

No matter how prepared you are, the next call, the next decision made, the next email sent, the next person hired brings the possibility into your department, every day.

Here are some examples found on Fire Law Blog, without the eventual outcomes.

On May 15, 2010, Andrew Cohn was playing at Dinsmore Park when he collided with a runner at first base. The collision is believed to have caused an irregular heart rhythm leading to cardiac arrest. His family claims that Jacksonville (Fla.) Fire and Rescue was negligent in their response. Crews were initially delayed due to a train blocking their route and failed to promptly notify dispatch. Crews then allegedly wasted vital time due to a locked gate and inexplicably standing in the outfield before attending to Andrew.

Otter v. Frenchtown Township (Mich.) et al, is a suit brought in 2011, where a pickup truck driver who rounded a corner at a high rate of speed and slammed into the back of a fire truck parked at an accident scene sued Frenchtown Township and one of the firefighters who helped extricate him. The accident was caught on videotape. The driver/plaintiff had a long record of driving infractions and was observed by a TV news crew to be feigning injuries he claimed were attributable to the accident.

In Kingston, N.Y., firefighters Thomas Metzger and Brian Renn were injured in December 2012 when they bailed out of a second-floor window onto a porch roof and fell to the ground because the roof was icy. Metzger claimed his injuries were due to the department's negligence in failing to issue personnel a bail-out system.

Compounding the liability challenge, cameras are everywhere. Pictures may be worth a thousand words but public-safety officials are defending themselves because they’re the wrong words. The pictures and the videos aren’t telling the whole story. And “just those thousand words” are extremely difficult to defend—even when you’re in the right.

Part of the difficulty is being cautious of liability issues without letting it run you or your department. Some agencies handcuff themselves by getting a legal opinion on every decision they make or every directive they send. Leadership requires making decisions—and you’ll be right and you’ll be wrong.

That isn’t to say there aren’t issues that require a legal opinion. We know that in the event of an accident, disciplinary issue, injury or death, your department will end up in court. Complicating the problem, from both a personal and operational perspective, is when the legal opinion is for the department to settle, regardless of being proven right or wrong, because “it’s cheaper.” That enhances a liability-based atmosphere. People get scared for themselves and their jobs.

A good example of this is what’s happening nationally in law enforcement. Because of the actions of a few officers or a few departments, police officers are becoming less aggressive in policing. They’re worried about cameras, liability, court, discipline and their jobs. Many feel they can’t win.

How do you protect your department?

  • Are your SOGs up to date?
  • Do they meet national standards?
  • Is your training up to date? Does it include not just signing forms but actual training in sexual harassment, workplace violence and the discipline process?
  • Are certifications and qualifications up to date?
  • Is your vehicle maintenance up to date and is the work completed by certified personnel?
  • Are your ladders, hose, PPE and other equipment inspected annually by certified personnel?
  • Are your multi-gas detectors calibrated, inspected and maintained?
  • Are your EKG monitors inspected and maintained annually?

Senior officials know these are just a fraction of the responsibilities your department has in protecting itself and you as a department head. “No money in the budget” won’t be a satisfactory answer. When your department is sued, it will go under an administrative autopsy; everything will be examined.

Further complicating the issue is that standards, mandates, protocols, rules and regulations are constantly changing—and sometimes even conflict. Rules and regulations, procedures and guidelines are constantly evolving. What was right yesterday may not be right today.

How do you protect yourself? Continue educating yourself and your people. Can you and your officers stand up to scrutiny under oath?

Have you kept up your personal continuing education? The master’s degree you worked so hard for 10 years ago isn’t worth much today without continuing education—education that reflects your position in the department.

Help keep yourself current in the fire-law community by subscribing to such sources as Chief Varone’s Fire Law Blog or Billy Goldfeder’s The Secret List. Read line-of-duty death reports or investigation reports on serious incidents and recognize similarities with your own department.

Are you denying your responsibility to initiate change because it won’t be popular?

According to Curt Varone, a practicing attorney and a retired deputy assistant chief from Providence, R.I., nationally known fire service leader Dennis Rubin, who has served as fire chief in Atlanta, Norfolk and Washington, is now 12-0 in lawsuits filed against him. New departments equal new challenges, and Chief Rubin took actions he thought were necessary.

Ask yourself: faced with similar challenges, would your record be as good?

D. Brady Rogers, EFO, CFO, is an adjunct instructor for both the Massachusetts Maritime and National Fire Academies and a member of the IAFC On Scene advisory board. He’s been a member of the IAFC since 2010.

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