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.
What are the liabilities if a department has not or will not adopt standard operating procedures (SOPs) for the day-to-day operations of the organization and its personnel?
David C. "Chip" Comstock Jr.: Generally, for a fire department or officer to be held liable in a court of law for damages sustained by an individual, the injured party must show that there was a duty to act (or not act) on the part of the fire department or its officers, that the fire department or officers were negligent in that their acts or omissions fell below the standard of care; that the plaintiff suffered damages; and that the negligence was the direct and proximate cause of the claimed damages. In many states, fire departments or officers will have immunity from claims unless the acts or omissions in issue rise to the level of gross negligence, willful or wanton misconduct, or an intentional act. The absence of SOPs relate to the element of negligence.
I know of a fire chief who refuses to adopt a RIT policy because he believes that if he doesn't have a rapid intervention team assigned at every fire and something tragic occurs, then the RIT policy can't be used against him. This reasoning ignores the wealth of information (books, articles, videos, and so forth) that permeate our profession on this subject. In the event of a fire department line-of-duty death or serious injury, you can bet that the estate's or firefighter's attorney is going to use those sources of information not to not only to sue the fire department (and officers), but to cross-examine the chief who failed to recognize the prevailing trends in the fire service and to adopt policies which that reflect those trends.
Keep in mind that the real issue here isn't the lack of a policy--it's the failure to conduct operations that reflect current fire service practices. If the firefighters do what they are supposed to on every call, even in the absence of a written policy, there would not be a problem. But from a practical standpoint, how often do firefighters deviate from accepted fire service practices? If you can honestly say that your fire department is perfect every time it goes out the door, then there is no need to worry about adopting written procedures. But if there are deviations, as a chief I had better have something in place to demonstrate to a jury what expectations I have set for my firefighters. I should also recognize, however, that covering myself butt is not the true purpose of the written SOP. An SOP is designed to let all department firefighters know what is expected of them. By having written SOPs in place, all firefighters--from the probie to the veteran--know what actions should be taken in a particular situation. SOPs also provide discipline--not in the punishment sense, but in the repetition, dedication, and training sense. SOPs also increase safety. A note of caution: it does not help any fire department who if it adopts policies or procedures and then ignores them. SOPs must be reviewed on a regularly basis to reflect current fire service trends and the fire department's actual operational procedures. If the department's SOPs and actual practices do not coincide, the fire department must either amend the SOPs or train the firefighters to follow them.
In conclusion, a fire department who that does not operate in a manner consistent with modern firefighting practices and has no written policies or procedures to demonstrate that the fire department has made an effort to guide and instruct its personnel in these procedures (or has procedures that do not reflect actual practices) is a liability disaster waiting to happen.
If there is any doubt regarding my position, read the February 11, 2009 NIOSH Injury in the Line of Duty Report that relates to the June 18, 2007 Charleston, South Carolina firefighter deaths. In this report, the first three recommendations relate to the development, implementation, and enforcement of written standard operating procedures. There are at least two other recommendations that relate to the adoption of written operating procedures. See www.cdc.gov/niosh/fire/reports/face200718.html.
David C. "Chip" Comstock Jr. has been an attorney for 20 years and is a partner in the law firm of Comstock, Springer, and Wilson, LPA, in Youngstown, Ohio. A 25-year veteran of the fire service, he is the chief of the Western Reserve Joint Fire District in Poland, Ohio. He lectures extensively on fire service topics related to company officer operations, liability, and personnel issues.
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Subjects: Fire service legal issues, firefighters and the law, liability, standard operating procedures, SOPs, RIT liability