LAWYERS DECLARE OPEN SEASON ON FIRE DEPARTMENTS
EDITOR’S OPINION
April 1, 2001. UPI-The Pro Bono (USA) Fire Department unveiled its on-scene legal response team for the first time today as fire erupted in the Acme Printing Company building. The department formed the team in response to a rash of suits brought against it by property owners.
Legal 1, a red van loaded with high-tech equipment and staffed by two ‘legal sector officers”-both attorneysarrived with the first-alarm assignment today and went immediately to work.
The legal unit employs a telescoping, 360-degree, 85-foothigh video camera, state-of-the-art A/V recording and monitoring equipment, three computers/MDTs tied into the county and state court records system, and a cellular/portable phone system It carries a resource library on disks and stocks spare mini voice recorders, now standard equipment for all Pro Bono firefighters, worn on PASS devices.
The department was pleased with Legal l’s performance at its operational debut. ‘ ‘We feel that Legal 1 will prove to be an invaluable resource to ensuring the legality of Pro Bono fireground operations, ” saidChief of Department Nil Desperandum, ”and feel it will save our taxpayers great expense . ”
Captain U.R. Parasitus. Esq., of Legal 1, echoed those sentiments. We dug up several legal precedents that were used quite effectively by command and our operations people, ” he said. ‘ ‘Our response was well-documented. ”
Lawyers Alert, a national publication for the legal community, reported a new trend in its April 13, 1992 issue. “Sue A Fire Department For Fire Damage,” the front-page headline thudded like a 15-pound sledgehammer. The rude invitation was a reaction to an important Massachusetts court ease, decided on March 9, 1992, whose implications for the fire service are profound.
The City of Lowell Fire Department was sued for negligence and put on trial for fireground operations at a fire that eventually destroyed five mill-constructed commercial buildings. The court ruled that the fire department had deviated from “accepted practice in fighting a fire,” and a jury awarded the property owner $850,000 in damages to be paid by the city (this was lowered to S 100,000 as per a state cap on damages levied against a municipality).
The fire department argued that strategy and tactics employed at the fire was a “discretionary function” and that, under state tort law, the city therefore was immune from liability. That line of reasoning was struck down by the Massachusetts Supreme Court. (Massachusetts Supreme Court. Ilany Stoller & Co.. Inc v. City of Lowell. No. F-5’12. March 9. 1992.)
“Discretionary actions and decisions that warrant immunity must be based on considerations of public policy,” the state Supreme Court said. “(Njegligent conduct that caused the fire to engulf ail the plaintiffs buildings was not founded on planning or policy considerations.”
The case is “of national significance,” says Lawyers Alert, “because it construes language in the state tort claims act that appears in numerous similar (statutes) across the nation, as well as in the Federal Tort Claims Act,” meaning that attorneys in many other states will press this legal precedent to their advantage. “The key,” that accommodating jurisprudential organ advises, is “showing that the firefighters on the scene departed in some way from generally accepted firefighting practices.” That, the) suggest, can be done with the assistance of national codes and standards and a wealth of literature on firefighting principles and methodology.
There was no reason to assume that fire service suppression operations would be forever immune to the pervasive litigation virus, particularly in light of the growing dilution of government immunity laws over the past 15 years. The Massachusetts case has opened a new vista for legal vultures. It’s open season. Be prepared. You’ve heard it before—but are you doing it? Basics.
- Develop and redevelop a comprehensive community risk analysis. Preplan extensively.
- Develop and redevelop your standard operating procedures. Add new SOPs as necessary, based on your risk analysis and preplanning. Have them, update them, train with them, and stick to them —for as many types of operations as possible.
- Increase your inspection activity. Develop an intensive incompany inspection program.
- Never forsake your constant, dogged pursuit of hands-on and classroom training. Train, train, train, especially in the basics—it’s never enough. Convince the city fathers and mothers that the liability spectre demands a major commitment of resources to training. Expand your fire service training library —and use it.
- Continue on the difficult road to codes/standards compliance.
- Keep legal firepower at your disposal. Identify’ areas most susceptible to legal confrontations and work to correct them. Open season will sire a cottage industry of fire “experts” who, if the price is right, will take the stand and sharpshoot your operations.
- Make certain that community officials and property owners understand the power of active and passive fire protection systems and the importance of adhering to fire and building codes, as well as the importance of proper installation and ongoing maintenance. Put teeth in your code violations laws.
- Promote your department to the community. Be visible, promote quality service, be professional.
- Do not interpret this court decision as placing all the responsibility squarely on the shoulders of the fire department itself. The separation of fireground operations from planning and policy decisions, as argued by the court, is erroneous. Such decisions as number of apparatus, staffing levels, and station locations—under the discretionary clause and therefore granted immunity —are inextricably linked to fireground operational effectiveness. Make this clear to government managers and work hard to procure additional staffing and equipment resources to improve operational effectiveness. Government managers, by their influence on planning and policy, are responsible for fireground effectiveness.
- You are a service business that’s liable for its quality’ of serviceact accordingly. Develop a clearly defined mission statement that is consistent with existing department resources/capabilities and community fire hazards. In no uncertain terms, the taxpayers and city officials must know what and how much protection their dollars are buying.
Times are tough and getting tougher. The hunters seem poised for open season. Progressive and aggressive action will play a large part in whether you take the shot or get through the gauntlet unscathed.
