FIRE SERVICE LIABILITY

©2011 Curt Varone, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com) Co-Director, Fire – EMS Division

What is the biggest liability facing your fire department? If you ask your Fire Chief, he may tell you it is a suit by a homeowner angry over a slow response to a fire that resulted in unnecessary damage. The Chief might also suggest that rendering emergency medical care to patients poses another major concern because of the sheer volume of EMS related incidents that the fire department responds to.

What the Chief probably does not realize is that the fire department is more likely to be sued by one of its own firefighters for what happens at a fire scene, than by an angry homeowner. In addition, law suits arising out of emergency incidents account for less than 15% of all litigation involving the fire service, with EMS related suits amount to less than 3% of the total.

Risk management has been a tough sell to fire service. Firefighters are engaged in an inherently dangerous business and tend to accept that risks are an inescapable part of the job. In the firefighters’ paradigm, risk management is nice idea created by folks who do not understand real risk. As a result, firefighters focus on risks they perceive as important without taking the time to understand if those risks are actually as significant as they appear.

Fire service leaders who embrace risk management recognize that firefighter safety, legal liability, and risk management are interrelated concepts. The three are interrelated because when we improve one, the other two are automatically addressed.  When we enhance firefighter safety, we reduce our legal liability, and address a risk management concern. When we address a risk management concern we reduce our liability, and improve firefighter safety.

If we could strip away all the jargon, what we are talking about is identifying problem areas and finding a way to do things right – in a way that prevents injuries to our personnel and the public. This in turn lessens the likelihood we will be sued and improves our risk management profile.

If time and money were not a consideration, our discussion could end right here. The reality is that given our limited resources a key part of risk management is identifying which risks to address first and which ones to defer. This is where most fire departments fail, by not addressing the high-frequency/high-risk critical tasks before worrying about low-frequency/low-risk tasks.

The process of identifying risk, prioritizing risk, and developing plans to address risk is sometimes viewed as a separate and distinct risk management exercise, one in which Fire Chiefs have neither the time nor the inclination to do so. These steps should be incorporated into the department’s strategic planning process. The department leadership must take an in-depth look and identify the real risks they face, as opposed to perceived risks. Claims, lawsuits, grievances, OSHA citations, injuries, apparatus accidents, near misses, citizen complaints, and even disciplinary actions provide a wealth of information that should be reviewed and prioritized. Industry wide experience, NFPA standards, and NISOH firefighter fatality reports also offer additional perspectives on the risks facing fire service.

In the absence of such risk analyses, what is the department’s strategic plan based upon? It would be based upon speculation about the risks that do exist. The plan would address problems that seem to be pressing, but the fact is low-frequency/low-risk events that are recognized will inevitably seem to be more important than high-frequency/high-risk events that go unnoticed.

By the way, what is the biggest liability facing the fire service? What should your Chief be telling you about the risks the fire department faces? Over 70% of lawsuits impacting fire service are employment related. While the numbers drop slightly for volunteer departments, a volunteer Fire Chief is still more likely to be sued by one of his firefighters than by an angry homeowner.

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Here are more details about fire service liability from the Fire Service Litigation database that I maintain:

• • The most likely civil suit facing the fire service: Employment discrimination

• • The most likely type of employment discrimination: Race discrimination (29% of civil suits)

    • • Roughly 60% of the race discrimination cases are filed by blacks

    • Roughly 40% of the race discrimination cases are filed by whites alleging reverse discrimination

• • Sexual harassment and sexual discrimination claims account for 26% of the total civil suits, exceeding the number of race discrimination claims brought by blacks, or reverse discrimination claims by whites, but not both combined

• • Most common job-related criminal offense firefighters are charged with: Theft (embezzlement of funds from a volunteer fire service organization; theft of narcotics from EMS units)

• • In 82% of the fire service related civil cases, a fire department and/or the municipality is named as a defendant

• • 85% of the suits filed by firefighters are against the fire department and/or municipality

• • The most likely type of incident to give rise to a lawsuit: A structure fire (11% of all civil suits)

• Over 60% of the lawsuits arising out of structure fires are filed by firefighters against either the fire department or the building owner(or in many cases both)

Source: Fire Litigation Database, J. Curtis Varone

Curt Varone has over 39 years of experience in the fire service, retiring in 2008 as a Deputy Assistant Chief with the Providence, RI, Fire Department. He is a practicing attorney licensed in both Rhode Island and Maine, and serves as the Director of the Fire Service Division of Legal & Liability Risk Management Institute. He also served as the Director of the Public Fire Protection Division at the NFPA. Curt has written two books, Legal Considerations for Fire and Emergency Services, and Fire Officer’s Legal Handbook. He writes the Fire Law column for Firehouse Magazine.

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