BY JOHN K. MURPHY
Training is a vital part of fire department operations. Its importance is even greater when you consider the mission of the fire department and the inherent dangers of a firefighter’s job. Firefighting and first-response fatalities average 100 each year, with more than 83,000 injuries occurring annually. Training is designed to prevent these deaths and injuries; but, unfortunately, improper and unsafe training also results in firefighter deaths and injuries.
Training fatalities average about 10 percent of line-of-duty deaths per year and more than 7,000 injuries. The deaths occurred during a broad range of activities, including apparatus and equipment drills, physical fitness activities, live-fire training, underwater/dive training, and classes or seminars. Many of the injuries sustained during training ended the firefighters’ career.
The fire department and fire training officer’s responsibilities are, first, to ensure safety and, second, to accomplish education and skill objectives. Responsibilities include being aware of and following the most recent training standards and guidelines, such as National Fire Protection Association (NFPA) standards, providing a safe training environment, eliminating all potential training hazards, and adhering to current training requirements. In addition, it is the training officer’s responsibility to make students aware of the lessons learned from other training sessions in which there were fatalities or injuries. The training officer should review trade journals and analytical reports, such as those published by the National Institute for Occupational Safety and Health (NIOSH), to be fully aware of the training fatalities and injuries occurring nationally.
The NFPA has published the primary training guidelines for training officers and departments. As examples, NFPA 1403, Standard on Live Fire Training Evolutions (2007 edition), explains how to plan a safe live-burn evolution; NFPA 1582, Standard on Comprehensive Occupational Medical Program for Fire Departments (2007 edition), addresses issues that affect firefighters’ health and safety; NFPA 1002, Standard on Fire Apparatus Driver Operator Professional Qualifications, addresses issues that have been implicated in fatalities and injuries that result from driving apparatus or personal vehicles to and from incidents; and NFPA 1670, Standard on Operations and Training for Technical Rescue Incidents, 2009 edition, and NFPA 1006, Standard for Technical Rescuer Professional Qualifications, 2008 edition, provide those resources for safe training in dive rescue or technical rescue events.
The primary responsibility of the training officer is to create a safe training environment. If a training accident should occur, the training officer or the department’s chief officers, including the fire chief, shall investigate and document those incidents and use them as learning tools to help avoid similar incidents in the future. Local, state, and federal agencies also may investigate incidents involving a fatality or severe injury. Often, these investigation results and documentations produced during the investigation are used during the litigation process and may be a factor in prosecuting or defending the department or training personnel.
If litigation occurs as a result of training injuries or deaths, the department is most often 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. Since the training officer is an employee of the organization, the organization most likely will be held responsible for the employee’s action. The principle involved here is that in such cases, the public interest is more important than the 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 litigation targets under two possible litigation scenarios. The first 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 second cause of action is for the injured party or survivors to sue individually under a tort action, where money is the remedy.
Under criminal charges, certain elements or factors must coexist for the behavior to constitute a crime. To be guilty of a crime, a person must commit an act. Criminal liability is not imposed for thoughts without action. The person acting must be doing so intentionallythat is, his or her conduct must not be accidental or involuntary; these actions are generally the result of the department or the individual training officer’s gross negligence or intent to cause harmthe death of or an injury to the firefighter. The success of criminal prosecution in this case is that the government (state or federal) has to prove that the training officer is guilty beyond reasonable doubt.
The most common litigation is a civil litigation (tort), in which the injured party or survivors file against the department and/or individuals, 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, not the individual training officer, although there are several cases that have been filed against the individual.
When an injured firefighter or his 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 the 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 or guidelinesi.e., the NFPAused to guide the training event; 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.
Since this is not a primer on how to litigate this type of personal injury, it is imperative to understand that many published and adopted guidelines for training and plenty of case law are available to guide the attorney’s presentation of the case on behalf of the plaintiff to the courts.
THE BEST DEFENSE
Prevention and documentation provide the best defense. Documentation should include the training officer’s self-training record, to determine his competency to train, and a record of the training events for each individual employee as the training occurs, following the standards found in NFPA 1401, Recommended Practice for Fire Service Training Report and Records, 2006 edition.
As a legal best practice, the training officer should, at the minimum, read and understand the standards at all levels (national, state, and local); make sure the firefighters have the appropriate pretraining classroom time and exposure; ensure that the firefighters have the correct personal protective equipment and that it is in working order; make sure the firefighters are physically conditioned for the training event; preinspect the training ground for obvious or hidden hazards; have a written playbook describing the training objectives; have a “plan B” if the original training plan turns bad; have a safety officer present and oriented to the training objectives at all training events; preplan for the eventual emergency and attempt to think of all of the issues and scenarios that could occur and cause an injury; and run the entire training scenario by the safety officer for a final review before engaging in the exercise.
Additional best practices include the following:
- Play by the known rules. Do not make up training activities you saw or heard of somewhere else.
- Understand your training time and environmental hazards.
- Periodically provide food, water, and rest for trainees.
- Document training accidents and injuries immediately after you take care of the injured firefighter.
- Review all training exercises to determine what went right and things that need improvement.
Training is meant to be fun in a safe and educational environment. An injury or death demonstrates a lack of planning and foresight. Answering serious and embarrassing questions posed by the plaintiff’s attorney does not have to be part of your job duties. Exercising an ounce of prevention and comprehensive preplanning will save you and your firefighters a lot of misery, pain, and suffering.
• The National Institute for Occupational Safety and Health
• The U.S. Fire Administration
JOHN K. MURPHY, J.D. M.S, PA-C, EFO, FACC, retired from the fire service in 2007 as a deputy chief and chief training officer. He had joined the fire service in 1974 as a firefighter/paramedic. He has been a licensed physician assistant (WA) since 1977, specializing in emergency medicine, family practice, and pediatrics. He also has been an attorney (WA) since 2001, consulting with fire departments and other public and private entities on operational risk management, employment policy and practices liability, personnel management and labor contracts, internal investigations, and discipline and personal injury litigation.