Fire Department Training Liabilities

By John K. Murphy

Training is 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 and the inherent dangers of the job. In today’s environment of reduced budget, reduced staff, and fire station closures, coupled with additional calls for service, constant and comprehensive training becomes even more important for all departments large and small.

Firefighting and first response fatalities have averaged 100 firefighters each year, with more than 83,000 injures during this same period. Training is designed to prevent these deaths and injuries. Unfortunately, improper training contributes to first responder deaths and injuries.

Training fatalities over a 10-year period average about 10 percent of line-of-duty deaths per year, with more than 7,000 injuries related directly to training during the same time period. Firefighter deaths occurred during a broad range of activities, including apparatus and equipment drills; physical fitness; live fire training; underwater/dive training; and attending classes or seminars. Many injuries incurred during training may be career ending, meaning that the injured firefighter cannot return to work and must seek other types of employment generally not in this chosen profession.

The department and its officers have several responsibilities that must focus on safety first and then achieving 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 hazards, 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 reports) and being personally trained to the highest standards possible to pass on that knowledge.

One source of training guidelines is published by the National Fire Protection Association (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).

Remember, the primary responsibility of the Training Division and its staff is to create a training environment that is safe and does not kill or injure firefighters. 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 many incidents, especially those involving a fatality or severe injury, local, state, and federal agencies may also investigate. Many times these investigation results and documentations are used during litigation. Documentation is one tool used in the prosecution or 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 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 Division officer is an employee of the organization, the organization is most likely held responsible for the action of the employee. The principle is that in such cases, the public interest is more important than private interest, so vicarious liability is imposed to deter or to create incentives for employers to impose stricter rules and supervise more closely.

Occasionally, the 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 the surviving family or estate 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 from either party. 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. Success in a civil case in which the party is liable for the injuries is based on the preponderance of evidence.

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 an expert witness 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 determine the instructor’s competency to train and to record the training events for individual employees as the training occurs.

As a legal best practice, the training officer should, at the minimum, 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 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 checkpoint 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.

Additional best practices include the following: play by the known rules—DO NOT MAKE UP TRAINING ACTIVITIES that you saw or heard of somewhere else; understand your training time and environmental hazards; periodically feed, water, and rest your trainees; document training accidents and injuries immediately after you take care of your injured firefighter; and review all training exercises to determine what went right or wrong and how to improve those training scenarios.

Training is meant to be fun in an educational and a safe environment. Injuring or killing your firefighters demonstrates lack of planning and foresight on the part of the training officer. Answering a bunch of serious and embarrassing questions posed by the plaintiff’s attorney is not part of your job duties. An ounce of prevention and planning will save you and your firefighters a lot of misery, pain, and suffering.

JOHN K. MURPHY has been a member of the fire service since 1974, as a career firefighter/paramedic; he retired in 2007 as a deputy chief and chief training officer. He has been a licensed physician’s assistant (WA) since 1977 with a primary focus in emergency medicine, family practice, and occupational medicine. He has been an attorney (WA) since 2001, consulting with fire departments and other public and private entities on operational risk management, response litigation, employment policy and practices liability, personal management and labor contracts, internal investigations and discipline, and personal injury litigation.
John K. Murphy will present “Training Liabilities 2012” on Thursday, April 19, 2012, 1:30 p.m.-3:15 p.m., at FDIC in Indianapolis.

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