In Henry the VI, Dick the Butcher proclaims “the first thing we do is kill all the lawyers.”
This short line is one of the most often quoted and misunderstood of any found in Shakespeare’s work. Most people who hear that line think that lawyers are the root cause of the problem; in other words, if lawyers are eliminated, all problems in society will be solved. However, the Bard did not mean to convey that lawyers are bad or evil but rather that lawyers often stand in the way of anarchy and revolution. The reader must keep in mind that this quote is taken from a character who commits murderous deeds.
Last year at FDIC, I attended the National Fallen Firefighters Foundation’s (NFFF) presentation on the 16 Firefighter Life Safety Initiatives. It was at this forum that the Firefighter Life Safety Resource Kit was first unveiled. It has since been distributed to every fire department in the country.
Throughout the NFFF meeting, a significant effort was made to address ways to improve the delivery of the Initiatives’ important safety messages. As I sat and thought about the people who were there in that forum or who were attending FDIC or who regularly read this publication, it occurred to me that these “ministers of safety” were simply preaching to the choir. The people who need to hear the safety message the most likely will remain deaf for several reasons, including their reliance on tradition. It was then that I also realized that the fire service’s true safety change agent will be the legal profession.
History supports this conclusion. For the past 20 years, the leaders of local government, including those in fire departments-those who can make the greatest difference in firefighter safety -have refused to implement or enforce life-saving safety measures until the cost became too great to ignore. By “cost,” I mean financial or physical/personal loss to the fire department, the chief, officers, or firefighters themselves.
This conclusion also was embraced at a Chicago conference last year that exclusively addressed legal issues affecting the fire service. One presenter discussed a motor vehicle accident (MVA) that resulted in a firefighter fatality. Philip Stittleburg, an attorney and National Volunteer Fire Council chairperson, later commented that “we are our own worst enemies.”
The fire service was surprised when a training officer in Utica, New York, was charged with second-degree manslaughter over the death of a firefighter trainee. In Wyoming, a firefighter who operated a tanker while driving impaired was charged in the death of a young cadet. In California, a veteran firefighter was charged with criminal vehicular manslaughter after a fellow firefighter died in a motor vehicle accident because the officer did not ensure that all firefighters aboard the engine were wearing seat belts. In Delaware, Michigan, and Ohio, firefighters have been charged in the deaths of civilians involved in MVAs after the engine operators failed to stop at intersection red lights.
LIABILITY FORCES A COST-BENEFIT ANALYSIS
These actions should force even the greatest traditionalists within our profession to reexamine their operational and safety practices. Lawyers force an immediate cost-benefit analysis of our everyday practices. This type of analysis results in the identification of a department’s weaknesses and the corrective measures necessary to address these deficiencies. To the chagrin of town or city administrators, this often means the expenditure of money.
Unfortunately, the administrator’s response to the request for funds is often “No! We can’t afford to do that. Just (accept the risk) as we always have.” We are, after all, in a risky business; but we are not in the business of embracing unacceptable risks. If the administrators of our political subdivisions do not want to pay now, they will surely pay later-either through the expenses incurred in defending lawsuits or through the payment of settlements or judgments.
Although perceived as the enemy of city administrators and chiefs, in reality lawyers are the friend of the individual firefighter. In addition to forcing cities or towns to adopt measures that protect employees as a group, lawyers also protect and enforce individual rights such as fair hiring and promotional processes, freedom of speech, and due process in disciplinary matters. During the past year, firefighters or their estates have, through lawyers, made claims against equipment manufacturers for the defective manufacturing of firefighter products, have sued departments for failure to provide adequate equipment, and have made claims that fire departments allowed senior firefighters or officers to permit others to operate vehicles while impaired.
There are those in the fire service who will say there are too many lawsuits and too many of these cases are simply frivolous. However, federal and state laws contain provisions that impose sanctions for attorneys that bring frivolous cases (i.e., cases that are not well based on existing law or fact). Notwithstanding the fact that there is an increasing trend in the filing of lawsuits against fire departments or other emergency services, fewer cases are being dismissed these days by judges, and in those cases where large judgments are awarded against fire departments, keep in mind that ultimately a jury decides the amount of the award. Lately, these monetary awards against businesses and governmental entities seem to be growing with regularity. This suggests that our behavior is deviating from acceptable standards, not moving toward them.
IMPLEMENTING SAFETY MEASURES: IT’S OUR CHOICE
The fire service controls its own destiny. We can study, adapt, implement, and enforce national safety standards that are purposely designed to protect firefighters. Individual departments can, in light of these safety standards, be proactive and embrace change, or they can remain ignorant. Fire departments can raise, commit, and spend financial resources to directly improve safety within the department, or they can make excuses for ignoring new trends.
City administrators and fire service personnel may argue that the national safety standards are not fair, are biased, or are the product of a faulty design process. The fire service must become involved in the implementation of standards and, if there is reasonable disagreement, must protest in earnest. For better or worse, these standards exist and will be used by the court system regardless of what a local fire chief may think. The fire service may not like all of the safety standards, but these standards cannot and should not be ignored.
Many within the fire service also argue that the cost of the national safety standard mandates will put departments out of business. Yet, many financially strapped fire departments, operating on the verge of ruin, will not hesitate to put gold-leaf trim on apparatus, buy sweatshirts and T-shirts for all members, and buy nozzles “with all the extras” when a simple smooth-bore nozzle will put the fire out just as well. No money will be spent on training, turnout gear, health exams, or fitness programs to minimize the risk of heart attacks, which account for almost 50 percent of firefighter deaths every year. (A physical fitness program would cost very little but is almost never implemented.) For those departments that really don’t have any money, how much time is spent trying to educate the politicians and the public on the deficiencies that exist within the department? Who will educate the constituents-the chief or a lawyer?
Ultimately, if fire departments are not proactive about safety, officers and departments will have to pay attention to the potential for criminal and civil liability. Well-intentioned fire chiefs and administrators too often worry about nonexistent risks when making decisions, but at least they are concerned about risk.
The individuals who will really end up in trouble are the ones who, in the name of tradition or through intentional ignorance, avoid meeting existing national safety standards that apply to the fire service. They argue that the standards should not and do not apply and that the fire department should be entitled to ignore the overwhelming force of opinion expressed by our fire service leaders at conferences like FDIC and in magazines like Fire Engineering. They expect the fire service to exist in a microcosm and the local fire chief’s (or politician’s) local authority to go unquestioned. The only way for this view of the fire service to prevail is, well, “The first thing we do is kill all the lawyers.”
DAVID “CHIP” COMSTOCK JR. is a 25-year veteran of the fire service and chief of the Western Reserve Joint Fire District in Poland, Ohio. He is a chief fire officer designee and lectures and writes on fire service topics relating to chief and company officer operations, liability, and personnel issues. Comstock is an attorney in the firm of Comstock, Springer & Wilson Co., L.P.A. in Youngstown, Ohio. His law practice focuses on insurance defense litigation, including governmental liability and insurance fraud/arson cases.
