Leadership

John K. Murphy: Fire Department Training Liabilities

By John K. Murphy, JD

Training remains a vital part of fire department and emergency medical services (EMS) operations and is made even more important because of the changing mission of the departments, the reduction of available dollars, reduction of firefighter staffing, and closing stations, thereby increasing the exposure to the inherent dangers of the job. Continuous, constant, and comprehensive training becomes even more important for all departments large and small.

Firefighting and first response fatalities have averaged in the high 80s each year, with more than 70,000 injuries during this same period. Training is designed to prevent these deaths and injuries. Unfortunately, improper training continues to contribute to first responder deaths and injuries.

Training deaths occurred during a broad range of activities, including apparatus and equipment drills, physical fitness, live fire training, underwater/dive training, and ice rescue. Many injuries incurred during training may be career ending.

The fire department and its officers have several responsibilities that must focus on safety first and only then achieve the education and skill objectives of the training session. Those responsibilities include awareness of and following the most recent training standards and guidelines, providing a safe training environment by eliminating all possible training hazardous, being aware of the current training requirements, and being aware of other training incidents causing injury and death by learning from the mistakes of others. This is accomplished by reading trade journals and other analytical reports (i.e., National Institute for Occupational Safety and Health, or NIOSH, reports), looking to the National Fire Protection Association (NFPA) and National Institute of Standards and Technology (NIST) reports, and being personally trained to the highest standards possible, thereby passing on that knowledge.

One source of training guidelines can be found and are published by the NFPA for training officers and departments to follow. For example, NFPA 1403, Standard on Live Fire Training Evolutions; NFPA 1582, Standard on Comprehensive Occupational Medical Program for Fire Departments (as several of the training deaths involved cardiac arrest and strokes); NFPA 1002, Standard on Fire Apparatus Driver Operator Professional Qualifications (as several of the training deaths involved driving); and NFPA 1670, Standard on Operations and Training for Technical Search and Rescue Incidents (Chapter 9), Water Search and Rescue  techniques and qualifications for water rescue (as a few training deaths are water-related).

When a training accident occurs, it is important for the training officer or the chief officers to investigate and document those incidents as a learning tool to avoid future incidents. For training incidents involving a fatality or severe injury, local, state, and federal agencies may also investigate. Many times, these investigation results and investigation documentations are used during the litigation process. Documentation or the lack thereof is one tool used in the prosecution or in the defense of the department or training personnel.

If litigation occurs as a result of training injuries or deaths, it is most often the department and not the training officer that is the focus of the litigation under the theory of vicarious liability. Employers are vicariously liable under the respondeat superior doctrine for negligent acts or omissions by their employees in the course of employment. As the training officer is an employee of the organization, the organization is most likely held responsible for the action of the employee.

Occasionally, the department, training officer, and staff may be a litigation target under two possible litigation scenarios: One is to be charged under a criminal statute where the local, state, or federal prosecuting attorney files charges (after an investigation) against the department or individuals and jail time is the remedy. The other cause of action is to be individually sued by the injured party or their estate (surviving family) under a civil tort action where money is the remedy.

The most common litigation is a civil litigation (tort), which is filed against the department and/or individuals by the injured party or surviving family members or estate where money is the remedy. Civil litigation success is based on the preponderance of evidence. In a review of case law, most of the litigation has been filed against the department and not the individual training officer, although there are a few cases that have been filed against the individual involving criminal charges.

When an injured firefighter or EMT or the surviving spouse or family [now called the plaintiff(s)] seeks the legal counsel of an attorney for a civil action, the attorney will look at several elements: the actions that caused the incident and injury, how the actions of the injured party and department caused the plaintiff’s injuries (contributory negligence), the type and severity of injury and level of disability, the named defendant, the applicable state and federal law, the standards used to guide the training event and the available guidelines (i.e., NFPA), case law for similar litigation, and the community standard.  If the attorney decides to represent the plaintiff, he generally hires investigators and expert witnesses to assist in the analysis of the incident and to provide courtroom testimony.

Prevention and documentation are the best defenses. Documentation should be in the form of a training record for the training officer to first determine the instructor’s competency to train and second to record the training events for individual employees as the training occurs.

As a legal best practice, the training officer should read and understand the standards at all levels (national, state, and local); ensure your firefighters have the right pretraining classroom time and exposure; ensure your firefighters have the correct personal protective equipment (PPE) and it is in excellent working order;  make sure your firefighters are physically conditioned for the training event; preinspect your training ground for obvious or hidden hazards, have a written playbook describing the training objectives; and have a “Plan B” if the original training plan turns bad. As an added layer of review and protection, have your safety officer review the entire training scenario as a final check point before engaging in the exercise and make sure the safety officer is present at the training events. Finally, preplan for the eventual emergency thinking of all of the issues and scenarios that could occur and cause an injury.

Training is meant to be fun in an educational and safe environment. Injuring or killing your firefighters demonstrates lack of planning and foresight on the part of the training officer. An ounce of prevention and planning will save you and your firefighters a lot of misery, pain, and suffering.

 

BIO

John K. Murphy JD, MS. PA-C, EFO, deputy chief (ret.), has been a member of the career fire service since 1974, beginning his career as a firefighter and paramedic and retiring in 2007 as a deputy chief and chief training officer. He is a licensed attorney in Washington State since 2002 and in New York since 2011. He consults with fire departments and other public and private entities on operational risk management, response litigation, employment policy and practices liability, personal management, labor contracts, internal investigations and discipline, and personal injury litigation. He serves as an expert witness involving fire department litigation and has been involved in numerous cases across the country. He is a frequent legal contributor to Fire Engineering, participant in Fire Service Court Blog Radio, and a national speaker on fire service legal issues.