The Duty to Act: Responsibilities of Today’s Fire Marshal

BY DON SMITH

IN 1959, FIRE ENGINEERING published FIVE MONTHLY Roundtable installments on the question “Who [italics mine] is responsible for fire prevention inspections?” The first sentence in the first installment (November 1959) read as follows, “FIRE PREVENTION inspections in recent years have become a major part of the activities of practically all fire departments.” This statement implies that inspections up to that time were not a priority within the fire service and now that they were, consideration should be given to who should do them.

Nearly half a century later (January 2003), Fire Engineering ran the article “Performance Keys to Successful Fire Outcomes,”1 which discussed performance-based designs employed in sophisticated and challenging construction projects. It showed the importance of evaluating these intricate designs and the value of the acceptance testing and inspections required of these complicated structures. This article goes far beyond the issue of who does fire inspections.

What has changed in these 48 years? Obviously a lot, but not only in technology. What has also changed within the legal arena is the extent of the fire inspector’s legal responsibility in this increasingly complicated world.

We are now marking the 60th anniversary of the release of the major government report “President’s Fire Prevention Conference of 1947.” In that report, President Harry S. Truman noted: “The serious losses in life and property resulting annually from fires cause me deep concern. I am sure that such unnecessary waste can be reduced. The substantial progress made in the science of fire prevention and fire protection in this country during the past forty years convinces me that the means are available for limiting this unnecessary destruction.”2 This statement appears to be an accurate depiction of our country’s current fire problem. Could President Truman have dreamed of the advances we have made since then? He saw even then the need to prevent fire through “Engineering, Enforcement, and Education” and that every fire department not only must adapt to the enormous changes to the three “E’s” but they must embrace, and at times, take the lead in recognizing these changes.

THE LEGAL TRANSFORMATION

Curently, members of Fire Prevention Bureaus across the country are reviewing the fire and building codes. Many jurisdictions are evaluating the latest editions of the International Code Council or the National Fire Protection Association standards during the local code adoption processes. Prevention Bureaus are establishing enforcement priorities and examining ways to get the most out of the budget. We are exploring training options and the personnel available to do what has to be done. We are looking at our policies to understand what gives us the most value for our dollar. We do this because it is the right thing to do. It is our moral obligation.

But it goes beyond that. Just as emergency responders, emergency prevention inspectors also believe that they have a “duty to act.” Emergency responders are driven to respond. There is no denying the tenacity and strong desire of emergency responders to do their jobs at all costs. In most jurisdictions, fire inspectors are cut from that same mold. They take on their tasks with the same enthusiasm. Fire code enforcement personnel understand their fiduciary responsibility to the citizens of the municipality who pay for their services, that they should exercise due care in performing their duties. Inspectors are bound by a duty to act reasonably and in good faith in accordance with the citizens’ best interests.

And, we must recognize also that there is a fundamental right to sue in America. Civil liabilities must always be considered in our decision making. When establishing enforcement priorities and making the most of our budget, the possibility of negligent actions is a dynamic we cannot overlook. According to Thomas D. Schneid, “The greatest potential for civil liability falls for fire service officers within the category of tort liability (i.e., negligence). With the ever-expanding trends to provide exceptions to the immunity doctrine and our increasingly litigious society, fire service officers may increasingly become a target for civil actions just as officers and managers have in the private sector.”3

Municipal governments no longer have the immunity defense they once had, according to Schneid. “In our world today, fire service organizations have the potential for tort liability, and immunity of any type is the exception rather than the rule,” Schneid relates. (3, 57) “Also, fire departments and other integral segments of municipal governments no longer are routinely shielded from liability arising from inspections that may have been conducted in a negligent manner, as they were in the mid-1970s. Since that time, a number of courts have begun to hold municipalities liable for inadequate inspections and follow-up actions.”4 This trend has been becoming more apparent, as can be seen from the following newspaper report:

Nearly 100 antiques dealers have notified Stamford [Connecticut] that they are suing the city for failing to inspect a faulty sprinkler system at a building that was destroyed by fire in April [2006]. The lawsuit is the second resulting from that fire, which destroyed eight businesses and caused millions of dollars in property damage at the Yale and Towne building.

Lawyers filed a class-action lawsuit in July against the property owners after court records showed that investigations revealed that nothing was done to repair a faulty sprinkler system inside the buildings. The most recent notice of a lawsuit blames Stamford’s fire and building inspectors for failing to check the building or forcing the owners to fix fire code violations, according to a copy of the notice. The fire started in a small piano shop and spread to several other businesses, including the 17-thousand-square-foot Stamford Antiques Center. 5

THE TECHNOLOGY TRANSFORMATION AND LEGAL RESPONSIBILITY

Understanding that our legal responsibilities are bearing down even harder on the fire service, we must acknowledge that our jobs are getting much more complicated. Our legal responsibilities and our level of proficiency are closely tied together. Our level of expertise must increase exponentially as time goes by.

Today, with performance-based codes and less prescriptive requirements, inspectors must be experts in many fields-if not experts, they at least must be extremely knowledgeable. For instance, computer modeling of a smoke evacuation system has the ability to calculate the time it would take to evacuate an elderly couple from the food court in a 600,000-square-foot covered mall before the untenable smoke conditions, caused by a five megawatt fire in the kiosk at the opposite end, bank down to six feet above floor level with the sprinkler system and escalator inoperative. The Fire Prevention Division must approve, acceptance test, and inspect the bounding conditions set forth in what will essentially be a fire code ordinance for this occupancy. In a 1998 Executive Fire Officer Program executive planning class, Azarang (Ozzie) Mirkhah, P.E., EFO, fire protection engineer for Las Vegas (NV) Fire & Rescue, wrote the paper “Preparing for the Performance-Based Fire & Life Safety Codes.” He described this transformation as “a paradigm shift for the authority having jurisdiction (AHJ),” which means an attitude and philosophy change toward the plans review and code enforcement process. The purpose of the paper was to outline some of the major technical obstacles and identify the appropriate measures that the AHJ could take to better prepare for the successful application of the performance-based codes.

Updating how we think and the rules we use is a continuing process, and it does not stop here. It means not only having the duty to enforce/inspect these new technologies but also taking action to amend the existing ordinances. It calls for updating your policies and procedures, your rules and regulations, your methods of performing inspections to keep these documents from becoming obsolete and outdated. It means staying abreast of the newest technologies and remaining current with, or even taking the lead in, the industry. Participate in the code development process, and voice the needs and expectations of the fire service. Investigate new sprinkler designs, or explore methods of amplifying radio signals in low-service areas. Understand computer modeling (this may mean hiring specific professional engineers for your department to assist with the rising technology) and the applications of performance design. Seek schooling and continual training to avoid legal liability. As fire officers, we must use all of these advances to the best of our abilities.

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Today, obtaining the best value for our dollar, tempered by our values and our understanding of transforming responsibilities legally and technologically, make it obvious that we have a duty to act. We have a wealth of devoted professionals striving to improve our fire service. We should embrace the advances and adopt the resulting new codes and standards. We must be part of the change locally and nationally. Support the efforts of the fire inspector and code enforcement personnel. Encourage training; understand the legal requirements. It is your moral duty and legal obligation.

References

1. Munger, James G. and Robert Neale, “Performance Keys to Successful Fire Outcomes,” Fire Engineering, January 2003.

2. Azarang Mirkhah, “Everyone Goes Home,” National Fallen Firefighters Foundation, August 2006 Newsletter, “A New President’s Conference on Fire Prevention: What Do We Have to Lose?” an editorial opinion, http://www.everyonegoeshome.com/newsletter/2006/august/prevention.html/.

3. Thomas D. Schneid. Fire Law-The Liabilities and Rights of the Fire Service, (John Wiley & Sons, Inc., 1995), 51.

4. Martin Bercovici and Ilene Heller, “Building Inspections, A Source of Latent Liability, International Fire Chief, Vol. 49 (3), 18-20.

5. Lowe, Zach, The Advocate, October 15 2006, http://www.stamfordadvocate.com/news/local/scn-sa-lawsuit4oct15,0,6418098.story?track=rss.

DON SMITH is a 24-year veteran of and a battalion chief in the Austin (TX) Fire Department. He has been assigned to the Emergency Prevention Division for the past 12 years. Following his promotion to battalion chief in 2002, he has served as the assistant fire marshal.

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