Some Orlando firefighters have found themselves in hot water after a "concerned citizen" complained to the mayor about seeing aproximately twelve scantily clad women on a fire truck posing for pictures, kissing firefighters, spilling drinks, etc. The concerned citizen include a photo in a letter to Mayor Buddy Dyer. An investigation has been initiated.
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On December 23, 2009, Zia Ansari lost his father and two sisters in a fire in Erie County, New York. He is now filing suit against local officials alleging that a delay in dispatching fire apparatus contributed to the outcome. The fire killed Faaiza Ansari and Saaiba Ansari, and their father, Mohammad.
At 2:56 am, one of the sisters made a 911 call using a cellphone. However, it appears she was incapacitated and unable to speak. The call lasted 3 1/2 minutes, and all she could muster was a scream, but no explanation of the problem or address.
"All you could hear [on the call] was a woman screaming," Central Police Services Commissioner Peter M. Vito is quoted as saying. "You could not hear a smoke detector. If you had listened to that call, you would have assumed it was a domestic situation."
Authorities initially were only able to pinpoint the location of the call to within a 1,700-meter (one mile) radius. The cell phone used to make the 911 call was an older model. Newer cell phones contain GPS chips that allow 911 dispatchers to quickly pinpoint the location.
Further contributing to the delay in locating the address, the 911 system in place in Erie County did not have the most advanced call locator features, despite the fact that New York charges a 70 cent a month surcharge on cellphone bills for 911. Apparently funds that could have been used to improve the 911 system had been diverted to offset other budget problems.
The dispatchers worked diligently to narrow the location down, but that took precious time. Once the location was narrowed, police were dispatched to the area for reports of a woman screaming. It was only then that the fire was located. According the records, apparatus arrived on scene at 3:24 am, 28 minutes after the call came in.
Earlier this month, Ansari's lawyer obtained a State Supreme Court order directing Erie County, the Town of Cheektowaga, the Village of Depew and two wireless providers to preserve all records related to the December 23, 2009 blaze.
A Federal Court in New Jersey last week ruled against a firefighter who claimed his department violated his 1st and 14th Amendment rights. Edison firefighter Peter Yackel parked his personal pickup truck in the parking lot of his firehouse on June 1, 2009 when he went to work. The problem was the truck bore a large political sign stating "Choi Lies! Save Public Safety In Edison." Also June 2, 2009 was election day, and Mayor Choi was seeking re-election. And city personnel rules prohibit engaging in political activities while on duty.
Later that day Yackel was instructed to move the truck, which he dutifully did. On June 3, 2009, he was informed he was suspended for 5 days. Within days Yackel sued Mayor Choi and the fire chief in Federal District Court alleging that the discipline violated his freedom of speech and the suspension without an opportunity for a hearing violated his due process rights. Yackel claimed the sign in his truck was protected speech about an important matter of public concern, and the discipline he received was retaliation.
In a well reasoned decision issued March 16, 2010, the court concluded that while the sign arguably did speak to matters of public concern, the 1st Amendment does not require that a public employee be allowed to engage in political advertising from public property while working as a public employee. In dispensing with the due process claims, the court said that while admittedly Yackel was not given a hearing before he was disciplined, he had adequate “post-deprivation” remedies to address his due process rights, including a union grievance procedure. Given that the penalty was only a five day suspension, due process did not require a pre-deprivation hearing.
Here is a copy of the written decision. Download Yackel-dismissal-opinion
No word on whether there will be an appeal. Incidentally, the Mayor lost the election.
When someone refers to a bailout law these days, it’s usually got something to do with the current economic crisis. However, the state of New York State Department of Labor Code recently issued a new occupational safety and health regulation that requires fire departments to address firefighter self rescue and emergency escape.
The law requires “an employer who employs firefighters”… [don’t you love bureaucrats…. an employer who employs firefighters….] to conduct a written risk assessment to determine if personnel at structure fires are “reasonably expected to be exposed to the risk of entrapment at elevations”.
If the risk assessment indicates that there is such a risk, then each interior structural firefighter must be equipped with a suitable escape rope and system components for self evacuation. System components must meet NFPA 1983 Standard on Fire Service Life Safety Rope and Equipment for Emergency Services. In addition, each firefighter issued self evacuation equipment must be given training, and the department must develop a system for routine inspections.
Here is a copy of the regulation. Download Code_Rule_800.7_firefighters
All in all a pretty interesting read. Oddly enough, the law exempts cities with a population of 1,000,000 or more…. Now I wonder who they might be excluding????
Our friends at TheBravest.com have a nice write up as well.
Posted in Occupational Safety & Health
This video is about a recent theft that occurred in the Cattaraugus, New York Fire Department. While we like to think that such conduct is rare – it is occurring frequently enough that all volunteer fire departments need to take some precautions. Consider the following cases:
- Already this year, Jack Micah Feltner, the treasurer of the Oak Hill Volunteer Department in West Virginia was charged with stealing more than $375,000 in payments from the city of Oak Hill intended for volunteer firefighters.
- Also this year Henry Swincinski of the Windber, PA Fire Department was charged with stealing more than $284,000 from the department
- In 2009, James M. Reid, was charged with fraud and theft from his department while he was Huntertown, Indiana volunteer fire chief
- In 2009, Kyle Cornell a firefighter with Graham Fire Rescue in Texas was charged with stealing from the fire rescue auxiliary
- In 2009, Paul Breton of the Island Falls Fire Department in Maine was charged with theft of $10,000 in town funds by submitted for reimbursement of personal expenses claiming they were fire department expenses
- In 2009, Michael Mantle Gorr of the Fogelsville Fire Company in PA was charged with stealing gasoline for his personal use while filling the fire truck with diesel from the municipal pumps
- In 2009 Chris Bartlett was charged with stealing from the Warrenton Fire Department, in Oregon
- In 2007, Howard J. O'Brien, the Evans Mills Fire chief was accused of stealing from the fire company
- In 2007, Peter Stefan, 60 was charged with stealing money from the Hope Volunteer Fire Department
- In 2007, John Carbone was charged with embezzling $38,000 from the North Bellmore Fire District
There are many more cases – I won’t belabor the point.
Cattaraugus County District Attorney Lori Rieman stopped short of a solid recommendation when she said "it does seem to be getting more common and I'm not sure whether that's the economy or gambling or both, but unfortunately these volunteer organizations, it's hard because you don't know if somebody has a history of that and it's hard to find people that are willing to do it."
Part of the solution is a system of internal checks and balances in each fire company to prevent one or two people from having unfettered access to the organization's funds. Regular outside audits by a professional auditor are another important step.
Finally – and this one may be the most painful – everyone in the organization should be subject to a thorough background check at regular intervals. Many times the people who steal from a volunteer fire department, have in the past stolen from other organizations. If they will steal from the fire department, they will steal from their brother and sister firefighters, and they will steal from the people we are there to protect. They need to be removed from our organizations. We don’t need any more black eyes!
The June 18, 2007 Charleston Sofa Super Store fire is in the headlines again, this time on the civil suit side. On March 12, 2010, the South Carolina Court of Appeals refused to dismiss an appeal filed by the store owners over a trial court ruling to dismiss the city of Charleston from the case. The city was dismissed from the suit last summer because under South Carolina law it is immune from liability. The families of eight of the nine the deceased firefighters had asked the Court of Appeals to dismiss the appeal. The parties have 30 days to submit their briefs.
Why would the families want to keep the city out of the civil law suit, while at the same time seek to have the fire chief and other city officials held criminally liable for the deaths? If the city is a defendant at trial, the owners of the Sofa Super Store can ask the jury to offset any liability they may have for the damages, by the percentage amount that the jury apportions to the city. The legal principle is called comparative negligence, and it allows a jury to apportion fault on a percentage basis among those defendants found to be at fault. For example, if the jury found that the city was 50% at fault for the deaths, the damages that the Super Sofa Store would potentially have to pay could be reduced by 50%.
Out of 30 defendants in the case, 19 have already have reached settlements totaling $8.4 million to the families. Remaining in the suit are the Sofa Super Store, its owners and operators, the Goldstein Family Limited Partnership; and a few contractors.
The Charleston Post and Courier ran a story today indicating that state law enforcement officials were investigating possible criminal charges against the fire chief and fireground commanders in the June 18, 2007 Sofa Super Store fire that claimed the lives of 9 Charleston Firefighters.
As we have seen in other cases where criminal charges have been filed against firefighters, it has been the family members of deceased firefighters that have been pressuring governmental officials to file the criminal charges. Recall the 30 Mile Fire in Washington state in July, 2001 that killed 4 Federal firefighters. Family members of the deceased firefighters lobbied officials for 5 ½ years to have the IC charged. Finally in December, 2006 Ellreese Daniels was indicted for involuntary manslaughter. He later pled guilty to lesser charges.
According to the Post and Courier, State Law Enforcement Division (SLED) investigators were reviewing the Charleston files for evidence of criminal negligence. The paper reported that “Family members of captains Louis Mulkey and William Hutchinson gave [Ninth Circuit Solicitor Scarlett] Wilson eight binders of materials they say prove that commanders exposed fire crews to unnecessary and deadly risks with insufficient training and leadership.” Wilson reported that she is waiting for computer modeling studies, but turned over all the materials she had to SLED for their investigation.
Echoing the sentiments of Ken Weaver, who’s son Devin was killed in the 30 Mile fire, Mike Mulkey, father of deceased Captain Louis Mulkey is quoted as saying "We're just looking for justice and accountability here."
Posted in Criminal Law
Plans to renovate and expand the fire station in the Village of Fayetteville, NY ran into some unanticipated legal difficulties last week when two Fayetteville residents filed a lawsuit contending that the expansion would violate certain restrictive covenants in the deed to the property.
In June 2009 village residents approved a proposal to renovate the station. Officials say the upgrades are necessary to provide room for EMS vehicles and equipment. The plans call for tearing down part of the existing station and building a new, larger emergency medical services wing. The cost of the renovations is budgeted at $6.45 million.
The property is owned by the Central School District, and according to the lawsuit the deed restriction prohibits its use as a parking lot or garage unless it is built underground. The plaintiffs are seeking an injunction to block the renovations until the deed restrictions are properly modified.
Exactly why the plaintiffs’ feel compelled to take enforcement of the covenants into their own hands remains unclear. Perhaps they are folks who like to see deed restrictions honored – perhaps they have a personal stake in the matter, but the challenge is just one of many legal roadblocks that get thrown in front of fire departments from time to time.
Being a fire chief is not an easy job. It fact for many reasons it may very well be the worst job on the department. Bernie Becker was the fire chief in Clearcreek Township, Ohio for 11 years. During his tenure he was subjected to repeated accusations of misconduct by the union.
In February, 2008 the union accused Chief Becker of sexual harassment, creating a hostile work environment and abuse of power in a written complaint made to township officials. The complaint alleged 15 different incidents, and somehow found its way to the hands of the media. Chief Becker chose to resign in July, 2008, and filed suit against the union in October, 2008 for defamation and invasion of privacy.
Chief Becker alleged that the maliciously false accusations forced him to resign from Clearcreek Township, and caused him to lose several job offers in other departments. On the eve of trial that was supposed to start last week, the union moved for summary judgment on the basis that, as a public figure, Chief Becker had to prove “actual malice”…. Remember the movie??? In other words, to prevail the Chief had to prove not only that the union’s allegations were false, but that union officials knew they were false when they made them, or acted with recklessly disregard to whether they were true or false. That is a very difficult standard to prove!
Judge James L. Flannery concluded that Chief Becker failed to demonstrate to the court “some circumstance appearing in the record that would show that the Union entertained serious doubts about the truths of the allegations when the letter was written.” As a result, the judge ruled in favor of the union, effectively ending the case. There has been no word on an appeal as of yet.
Here is the courts actual ruling. Download Becker_final_ruling
Seven additional defendants in the tragic Charleston Sofa Super Store fire have settled out of court with the families of eight of the fallen firefighters, according to documents recently filed in Charleston County Court. The June 18, 2007 fire claimed the lives of nine Charleston firefighters and set off a barrage of lawsuit by families of the deceased and surviving members of the Charleston Fire Department.
Defendants Overnight Sofa Corp., Pembrook Chair Corp., Hughes Furniture Industries, and Motion Eaze Recliners settled for a combined total of $400,000. Defendant Albany Industries settled for $500,000, Robinson and Robinson for $100,000, and Best Chairs for $88,888. The $1.2 million dollar settlement is in addition to the $5.6 million previously agreed to by 12 of the original 30 named defendants. That leaves 11 defendants still in the lawsuit.
A Pennsylvania jury has awarded a Philadelphia firefighter $100,000 in damages against Federal Signal Corp. for hearing loss associated with the venerable Federal Q-Sirens. Firefighter Edward Smyl alleged that the Q-Sirens were negligently designed, unreasonably dangerous, and emited such an intense noise that they permanently damaged his hearing. Smyl had been a firefighter in Philadelphia from 1975 to 2007.
The verdict was rendered on Tuesday, March 2, 2010 after four days of deliberation. The jury concluded that the Q-Sirens were not defectively designed, but that Federal Signal was nonetheless liable to Smyl under a negligence theory. On March 4, 2010 Federal Signal announced that it will appeal the jury’s verdict.
Smyl’s suit was not the first filed by firefighters against Federal Signal alleging hearing loss. In fact, according to the web site AboutLawsuits.com, there are over 600 separate lawsuits are pending against Federal Signal in Pennsylvania alone, a claim I cannot independently verify. However, there are several other well known cases that have been filed against Federal Signal over the past few years, including cases in New York, Illinois, Maryland, New Jersey and Missouri.
A New York court dismissed a similar products liability suit brought by four New York City Firefighters against Federal Signal for hearing loss, and the dismissal was affirmed by an appeals court in June 2009. Federal Signal was granted a summary judgment in January, 2010, in a suit brought by another Philadelphia firefighter, and obtained a stipulated entry of summary judgment in November, 2009 in a suit brought by two other Philadelphia firefighters.
A 2008 Illinois case involving 27 firefighter plaintiffs alleging hearing loss resulted in a defense verdict for Federal Signal. A second Illinois case involved the consolidated claims of nine firefighters, and resulted in a jury verdict for the firefighters in February, 2009. Federal Signal is appealing that verdict. The hearing loss claims of some 74 other Illinois firefighter plaintiffs were dismissed in the interim.
In regards to the Smyl verdict, Jennifer Sherman, Senior Vice President, Human Resources, General Counsel and Secretary, is quoted in the press as having said "We are very pleased that the jury rejected the claim that Federal Signal's sirens were defectively designed. This verdict is consistent with the many successes Federal Signal has had over the past several years in defending the Company's life-saving products. That said, we are disappointed that the jury proceeded to award damages to the plaintiff. We believe that the damage award cannot stand in light of the jury's verdict that our sirens are not defective, and we will seek to overturn that verdict."
The widow of a Shreveport, Louisiana battalion chief killed after a fall from a ladder truck has filed suit against the city for negligence in connection with the death. Traci Adams filed suit on February 19, 2010 for the December 12, 2009 death of Chief Tommy Adams. The accident occurred on February 21, 2009 at the conclusion of a Mardi Gras parade.
The suit alleges that the members of the department were negligent in administering to Chief Adams, including
- not properly clearing his airway
- not giving him supplemental oxygen.
- not taking proper spinal precautions
- transporting to an inappropriate medical facility
Understandable the department is hurt by the allegations contained in the suit and the chief has vowed to vigorously defend the members’ actions. In the months after the accident, firefighters had held numerous fundraisers to help offset the expenses for Mrs. Adams and her two children. Firefighter’s even helped to remodel the family home. The Shrevesport Firefighters Association president Stacy Birdwell publically responded to the lawsuit expressing his support for the members who attended to Chief Adams, and commending the way the department pulled together for the family in the days and weeks following the accident.
Mrs. Adams, an emergency room nurse, was present at the scene when the incident occurred, and personally witnessed the conduct that she alleges was negligent. Nevertheless, even with her personal testimony, suits such as this are very difficult to win for a number of reasons.
First of all, workers compensation laws usually restrict the rights of an injured or deceased employee or his/her family members to sue the employer for negligence through a legal principle commonly known as exclusivity. The same liability protection extends to the negligence of co-workers. Secondly, in many jurisdictions there remains some vestiges of sovereign immunity that offers fire departments some degree of liability protection. Finally many states have statutory immunity for firefighters and emergency workers for negligence committed in the line of duty.
There has been another skirmish in the Police-Fire Wars, the battle over who is in charge at emergency scenes. This time the skirmish occurred in a most unlikely place: California, the birth place of ICS, the system that was supposed to solve these types of territorial disputes.
On February 15, 2010, Presidents day, a Montecito Fire Protection District battalion chief was handcuffed and arrested by a California Highway Patrol officer at an accident scene on a crowded highway. The officer apparently took offense that the chief refused to move fire apparatus to allow traffic to flow more freely. This exact factual scenario has been at the heart of other high profile police-fire confrontations, including:
• May, 2003, Fire Captain David Wilson of the Robertson Fire Protection District, Missouri, was arrested after he refused a Hazelwood police officer’s order to move a fire truck parked at the scene of a motor vehicle accident on Interstate 270.
• November, 2006, Deputy Chief Robert Jenkins of the Rockaway Township Fire Department was arrested by a New Jersey State Trooper after he refused to move a fire truck that was blocking the right lane of Route 80 at an accident scene.
The latest incident occurred on Highway 101 Northbound. At the time, the highway was backed up over two miles. The CHiPs officer was justifiably concerned about further contributing to the traffic backup, while the battalion chief was justifiably concerned about the safety of responders. The officer instructed the chief to move the apparatus, and when he refused, he was handcuffed and placed under arrest. The chief was released upon the arrival on scene of a CHiPs supervisor, and the entire matter is under review by the respective agencies.
According to Geri Ventura, a spokesperson for Montecito Fire, CHiPs is the lead agency for highway incidents in California, and the initial CHiPs officer is the initial Incident Commander. While the matter was quickly brought under control with the release of the chief, an underlying issue remains: If the senior official of a responding agency has immediate safety concerns that are ignored by the IC, what should be done – particularly when the IC has the authority to arrest anyone who refuses to comply with his orders?