Legal actions involving trusses

While discussing the collapse hazards truss-constructed buildings create for firefighting crews, especially those engaged in interior operations, a civilian inquired as to whether any fire service organization or the survivors of a firefighter killed or seriously injured in the line of duty in a truss-constructed building had ever taken legal action against the manufacturer of these engineered products. If so, has there ever been an “out of court settlement” or victory in a court case?

This is of particular interest to me and the other members of my department, as we experienced the line-of-duty death of Lieutenant Arnie Wolff during interior fire suppression operations in August 2006. The unprotected wooden floor trusses supporting a subfloor of ¾-inch tongue-and-groove oriented strand board over which a 1½-inch layer of Gypcrete® [called “floor underlayment” by the manufacturer] was poured and finished with ceramic tile collapsed shortly after Wolff and a crew member began interior search operations.

Joel Krueger
Health and Safety Committee
Green Bay (WI) Professional Firefighters

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David C. Comstock Jr., JD, Comstock, Springer, and Wilson Co., LPA, Youngstown, OH, responds: For many years, firefighters have made claims against homeowners as a result of injuries sustained when buildings have collapsed on them. The Supreme Court of Colorado observed long ago:

The life of a fireman is a heroic one. Daily, in the discharge of his duties, he performs acts of the truest heroism, which go down unheralded and unsung. He consecrates his life to his work, and when it becomes necessary, unflinchingly offers up, as a sacrifice to the public, his own well-being, his life, and the future welfare of his wife and children. Lunt v. Post Printing & Publishing Co., 110 p.203, 210 (Colorado 1910).

In quoting this passage, the Superior Court of Connecticut noted, in denying claims made on behalf of a firefighter’s estate: “No judicially created rule of tort law can hope to alter this stark reality.” Ramos v. Branford (1999 W.L. 1288984) (Conn. Super)

In the Connecticut case, the estate argued that the employer department failed to conduct inspections, which resulted in the failure to discover that the premises had a roof that was constructed of lightweight wood trusses, that it lacked automatic sprinkler protection, and that it contained highly flammable materials that promoted the rapid spread of fire. The estate alleged that the department knew or should have known that serious injury or death to fire department personnel was substantially certain to occur as a result of the failure to conduct annual inspections at the premises where a fire ultimately led to a death. In denying the claims, the Connecticut court relied on both the Firefighters Rule and the Connecticut Workers’ Compensation Act.

The Firefighters Rule was also used to bar claims made by several Indiana firefighters against a building owner when they were injured as a result of a loft collapse that trapped them. In barring the claims, the court noted: [The] “Fireman’s Rule encapsulates the principal [sic] that public safety officers ‘whose occupations by nature expose them to particular risks, may not hold another negligent for creating the situation to which they respond in their professional capacity.’” Thompson v. The Murat Shrine Club, Inc., 639 N.E.2d 1039 (1994).

There are very few other reported cases involving claims made as a result of building collapses, and those cases in which firefighters have alleged negligence against building owners have generally been barred by the Firefighters Rule. But, as argued in the article “What’s It Going to Take? Shifting the Cost of Lightweight Construction Failure to the Building Industry,” published in the May 2009 issue of Fire Engineering, product manufacturers and contractors may no longer be protected by the Firefighters Rule. In Torchik v. Boyce, 121 Ohio St.3d 440, 209-Ohio-1248 (March 25, 2009), the Ohio Supreme Court ruled:

An independent contractor whose negligence is alleged to have caused injury to police officers or firefighters acting in the scope of their official duties is not relieved of potential liability under the Fireman’s Rule.

This case will permit firefighters to sue independent contractors, including builders, if they negligently construct a home resulting in foreseeable harm to firefighters.

There have been few, if any, reported cases involving lawsuits relating to lightweight building construction. However, as firefighters become more educated, as the potential harms resulting from fires in these buildings become more well-known, and as the laws evolve to protect firefighters, more product liability and negligent cases will and should be filed against builders and manufacturers. The homeowner will likely continue to be protected by the traditional Firefighters Rule, but there are exceptions to this rule in many states. In all instances, injured firefighters (or the estates of firefighters killed in the line of duty) should consult a qualified attorney in their jurisdiction.

Push for industry safety changes now

I commend Azarang “Ozzie” Mirkhah and David Comstock Jr. for their informative article on lightweight structural components (“Lightweight Construction: Is Now the Time to Push for Sweeping Industry Changes?” Fire Engineering, June 2009). As they point out, with at least 65 percent of all new construction in the United States using lightweight floor trusses, and with data from the Underwriters Laboratories (UL) fire study documenting faster fire growth as a result of the increased fuel loads in the presence of lightweight construction, the answer to their question is a resounding yes.

I related my experience with a fire in a single-family residence of prefabricated (modular) construction in “Dangers of Modular Construction” in the March 2009 issue of Fire Engineering. The eye openers for me, as well as many other fire service professionals with whom I have spoken, are the presence of large void spaces between levels of habitation and the use of polyurethane structural adhesives to secure the gypsum board to the ceiling assemblies.

As Mirkhah and Comstock point out, the fire service and building community must find common ground on a series of safety issues that we recognize as real-world threats to our firefighters. Fire service members must continue to be active in the code development process at the state and national levels. The Fire Chiefs Association of Massachusetts has sponsored a code change proposal to the International Code Council that would change the unit of measurement for triggering draft stopping in void spaces in one- and two-family residential construction.

Currently, the International Residential Code requires draft stopping if the void space is more than 1,000 square feet. This measurement (length × width) fails to take into consideration the modern realities of floor/ceiling assemblies that use truss systems or prefabricated construction. Both result in significant distances between the membrane above (floor) and the membrane below (ceiling) that define the void space. Think about this: A void measuring 1,000 square feet between stories in a single-family home that uses 12-inch trusses creates 1,000 cubic feet of volume (code compliant). If that same void uses 18-inch trusses, the volume becomes 1,500 cubic feet (code compliant). Trusses 24 inches deep create 2,000 cubic feet of volume (code compliant). As written, the code does not require compartmentalizing these voids because the linear trigger is not met.

Our proposal would change the trigger to 1,000 cubic feet, thus capturing the depth of the truss or height of the void. Compartmentalizing the void space and protecting the lightweight assemblies would slow the spread of fire.

Preengineered, lightweight structural components are realities in every community. Protecting these systems from failure for as long as possible when exposed to fire is in the mutual interest of the fire service and the building industry. A change in the code, while not a panacea, would be a positive step toward achieving our collective goals.

Kevin A. Gallagher
Chief
Acushnet, Massachusetts

Hotter fires should impact actions

I recently read Mark J. Cotter’s “Emergency Service Myths: A Myth and a Half,” (fireengineering.com, May 25, 2009). It was very interesting and has raised for me some questions/comments. In regard to burning hotter, if, as Cotter notes, certain materials (synthetics) burn faster, will they not also heat up an environment faster and lead to faster failure of the structure and windows, thus allowing more air/oxygen into the environment and allowing the material to burn hotter?

Structure fires are compartmentalized creatures initially, but they don’t stay that way. It is not uncommon—in fact, it is very common—to pull up on a fire that has self-ventilated, allowing the free influx of oxygen to feed the fire. So all things being equal, synthetics do burn hotter.

Does this fact change our attack considerations? If lightweight construction is involved, the answer, again, is yes. Today’s buildings are built with 2 × 3/2 × 4 trusses; solid 2 × 10s were used in the past. The exterior walls are built with oriented strand board (OSB) (at best), where real plywood was used in the past. The same could be said for roofs and floors. These newer products have been shown to degrade much more quickly under fire conditions than the building products of the past. We have hotter fires burning in structures that degrade much more quickly under fire conditions. This means we need to attack more quickly with more water, more penetration, and more reach. Does this mean we need to pull 2½-inch hose all of the time? No, but the regular use of 1¾-inch hose must be reevaluated, and larger hose must be considered when fire conditions warrant. We have seen time and time again companies pulling off the 1¾-inch hose when it was very apparent that the 2½-inch hose was needed.

Proper size-up is invaluable. In addition, all companies must make a thorough risk assessment before engaging in aggressive interior attacks, especially companies that run with three firefighters. Leading out a hoseline is time consuming, especially with inadequate staffing. Time is our enemy. Each minute allows the fire to grow exponentially, causing increased building degradation and increased firefighter risk. Each minute also decreases the chance of survival for any occupants within the structure—decreasing the reward side of the risk/reward continuum.

I could continue to write about the importance of training, especially in line selection and leading out, but that is very obvious. Present-day fires do burn hotter than those of the past, and these hotter fires directly impact our actions and our decisions.

Thanks for the intriguing articles.

Patrick Brown
Firefighter/Paramedic
Chicago (IL) Fire Department

“Snakes” can adversely affect attitude

Paul Combs’ “Snake in the Grass” illustration (Letters to the Editor, Fire Engineering, May 2009) is great because it stresses a pressing issue, especially in my department. It is true that once the head of the department turns and just handles baloney with more baloney, it starts a dangerous attitude shift. I cut the illustration out of the magazine and posted it on the station whiteboard with the message “Is this you?” It remained there for only 3½ hours before someone threw it out.

Shawn Weilamann
Captain
Franklin Township (NJ)
Fire Department

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