Fire Service Court: On Standards

In this column, members of the FDIC legal expert panel will respond to reader-submitted written questions related to legal issues. We will try to answer as many questions as possible, and in some instances, we will refer readers directly to attorneys in their home states. To submit a legal question, CLICK HERE. Every reader is reminded that the answers the attorneys in this column provide are generic in nature, and do not constitute specific legal advice, since each state may have different legal standards that apply. Always consult a licensed attorney in your home state.

Is there a danger if a fire department does not train to standards such as National Fire Protection Association 1001, Standard on Professional Qualification for Firefighters, or is it sufficient to train to an internal, local standard set by the local jurisdiction?

John K. Murphy: Establishing a minimum training standard for firefighter training as found in NFPA 1001 will provide a basis of training for entry level training for career or volunteer firefighters.

The NFPA 1001 standard identifies the minimum job performance requirements for career and volunteer firefighters whose duties are primarily structural in nature and the purpose of this standard shall be to ensure that persons meeting the requirements of this standard who are engaged in firefighting are qualified. It shall not be the intent of the standard to restrict any jurisdiction from exceeding these requirements (see NFPA 1001).

What are NFPA Standards? They are consensus standards developed by specific industries to set forth widely accepted standards of care and operations for certain practices. Standards are an attempt by the industry or profession to self-regulate by establishing minimal operating, performance, or safety standards, and they establish a recognized standard of care. They are written by consensus committees composed of industry representatives and other affected parties. The NFPA has many standards which affect fire departments. The standards should be followed to protect fire and rescue personnel from unnecessary workplace hazards and because they establish the standard of care that may be used in civil lawsuits against fire and rescue departments.

Does the application of NFPA Standards apply to volunteer firefighters? In most cases, compliance with NFPA standards is voluntary. However, in some cases, federal or state-compliant Occupational Safety and Health Administration (OSHA) agencies have incorporated wording from NFPA standards into regulations for all firefighters, regardless of their status with a fire department. Many state and local governments have placed the NFPA 1001 standards into their laws, codes, and regulations based on the training standards as found in the NFPA sections or training that guide fire department response and training. Regulation to establish minimum training requirements for fire suppression personnel following a national standard only makes sense from the safety, financial, and legal standpoints. When a state incorporates those standards into their codes, the compliance with the standards is mandatory. For example, in the state of Washington, the legislature has promulgated regulations that guide the safety standard for fire suppression and, in general, all activities of the fire department. They are found in the Washington Administrative Code (WAC) Chapter 296-305 WAC - Safety standards for firefighters and in the Revised Code of Washington (RCW), RCW 43.43.934 which covers the state fire protection policy board and their duties and provides direction for fire training and an education master plan.

Regardless of whether compliance with an NFPA standard is voluntary or mandatory, fire and rescue departments must consider the impact of "voluntary" standards on civil (tort) litigation. In some states, a department may be liable for the negligent performance of their duties. Even in states that protect rescue workers under an immunity statute, most state laws do not protect fire or rescue departments for grossly negligent acts. Essentially, negligence involves the violation of a standard of care that results in injury or loss to some other individual or organization. The question before us is related to firefighter safety and to mitigate any risk a fire department may have in the initial or continuing training of their firefighter staff. NFPA 1001 standards are just that--a performance standard to measure skill qualifications and the ability of a firefighter to accomplish their job during structural events. For most of us this standard is the gospel to which we train.

The question is: "What if we do not follow this training standard or apply our own personal or traditional department standard?" What happens if one of our firefighters is injured or dies during a structural response or during training? The answer is not a simple one. Standards are set, like policies are created, because there is a need to regulate behavior and to provide a safe operating environment. In the early days of the fire service, each jurisdiction would create some type of training standard because of the nature of their business, by the incumbent fire chief, training officer, firefighters, or neighboring jurisdictions. Some "standards" were inherited by the current staff and firefighters because "it's just the way we do it--and we are not changing." After many firefighter fatalities, lack of coordination between responding jurisdictions, or someone got tired of creating a "lesson plan," our industry brought together a group of experts to formulate these standards.

Why are these standards important? Safety is the primary reason. The secondary reason should be the fear of litigation.

For example, an engine company was participating in regularly scheduled training evolutions at their academy when an officer suggested a maneuver he had seen in a trade magazine. The evolution involved escape from flashover conditions using a ground ladder at an extremely low angle placed below the sill of the "escape" window. Permission was granted and one of the firefighters attempted the maneuver, which required that he exit the window headfirst and move down the ladder on all fours. The firefighter lost his balance and tumbled down the ladder, breaking a leg.

Although the initiative to try a new technique is highly commendable and should not be stifled, all training evolutions require careful consideration and verification that safeguards are in place. Further, the head-first ladder escape (or ladder bail/slide) is considered the escape method of last resort, and training on this technique should only occur in controlled situations.

What is a standard? Webster's Dictionary indicates that a standard is something established by authority, custom, or general consent as a model or example. What is a guideline? Again, our friend Webster indicates that a guideline is an indication or outline of policy or conduct. Why do we have standards and guidelines? For the very reason that NFPA 1001 was created--to provide a common method of training for firefighters in a structural environment. The training standard can meet or exceed published standards as noted in NFPA 1001, but certainly no less a standard should be created or adopted.

The Law

During the investigative period by the plaintiff's attorney, the question asked is: "if not, then why not?" If you did not have training standards that closely parallel or exceed NFPA 1001, then "why not?" would be the question the plaintiff's attorney would ask. Would you be liable for an injury to your firefighter because of incomplete, negligent, or absent training? Plaintiff's attorneys would apply a standard of care analysis to this situation. The standard of care would look at a negligence standard that includes duty of care, breach of that duty, causation, and damages. If your firefighter is injured, can you be civilly or criminally charged with negligence? You can be held liable if there were factors of negligence or violations of the local or state law discovered in the means and methods of training in your organization causing injury or death to a firefighter.

The NFPA standards are recommendations and guidelines developed by committees of chief officers, volunteer representatives, union officials, and industry representatives. They are not legally binding per se, but, whether or not NFPA standards have been adopted locally, they have become the "standard of care" for the industry. When litigation is considered, lawyers often turn to the applicable standard of care in determining their course of action. It is up to decision-makers in political jurisdictions to determine levels of acceptable risk and the degree of liability exposure they will tolerate. In general. this use of a standard would guide an attorney to determine what the "standard of training" would be set against a nationally formulated standard. Currently, and unfortunately, we are beginning to see a lot of litigation in the arena of failure to use the live fire training guidelines as noted in NFPA 1403, Standard on Live Fire Training Evolution.

So, the short answer to the question posed at the beginning of the article is YES, there is a danger to train to a standard other than a national standard. In today's litigious society, an injured firefighter will be looking to place the blame for their injures on a deep pocket organization like yours for your failure to correctly train the firefighter to a nationally recognized standard. As an attorney, I will be looking to those standards and others if your employee knocks on my door and limps into my office.

John Murphy retired in 2007 as the deputy chief with Eastside Fire and Rescue in Issaquah, Washington, and as the chief of Sammamish, Washington, after 32 years of service. His legal focus as an attorney covers employment practices liability, employment policy, medical malpractice, personal injury, internal investigations, and risk management consultation for private and public entities. Since 1977, Murphy has been a licensed physician's assistant in Washington State, focusing on primary care and emergency medicine. He served in the U.S. Navy (1969-1973) as a combat corpsman with the Marine Corps in Vietnam.

Subjects: Fire service legal issues, firefighters and the law, fire department liability, live fire training liability

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