I received an email today from a fellow Firefighter-Attorney Tom McAneny with an interesting question, and with his permission am republishing it here
I am a licensed attorney in Pennsylvania and Captain in a large all-volunteer fire department. Our department protects a large township on the outskirts of Philadelphia with a population of about 60,000 and is comprised of 5 separate fire companies, each with its own set of chief officers who set policies for their individual companies, including run cards. As a department, we have an excellent training program, with 85% of our active members trained to the Pro-Board FF1 level and about 50-60% trained to the FFII level, as well as countless additional training levels and certifications. Each company works and trains with each other on a regular basis and are familiar with the way in which each other operates. With regard to response statistics, the department as a whole responds to approximately 1800-2000 runs per year, with a fair amount of working fires. Although we are an all volunteer department, most of our companies enjoy excellent response statistics with regard to time of arrival of first apparatus as well as the number of personnel responding.
Recently, one of the Chiefs decided to change his box cards to cut out several in-township companies that have a an excellent record of consistently responding in a timely manner with truckloads of trained qualified and experienced personnel in favor of out-of-township companies that are geographically closer on the box, but have poor response statistics (ie responding in an untimely manner, undermanned or staffed with under-trained personnel). His argument is that he will be held personally liable if he fails to have the geographically closer, out-of-township company dispatched rather than the in-township company should there be a lawsuit.
I wanted to know if you had come across any caselaw or trends toward placing liability for failing to have geographically closer, but out-of-municipality companies to a fire? In my research on Westlaw, I did not come across a single case that addressed this issue. My analysis in reviewing municipal law for Pennsylvania seems to indicate that such liability does not exist, nor is it likely to ever be placed upon the chief of a fire district within a large township department. I arrived at this conclusion based upon the longstanding sovereign immunity enjoyed by Pennsylvania fire companies, as well as Pennsylvania municipal law that places the onus of ensuring fire protection on the municipality itself, not the fire chiefs, and even then only to the degree in which the municipality sees fit, as well as the concept that a taxpayer in one municipality does not have standing to expect services from a neighboring municipality, no matter how close their residence is to the municipal line.
Additionally, I concluded that a federal 1983 claim would fail because the plaintiff would not be able to make the nexus between a fire department policy and their damages because it would be wildly speculative to say that the plaintiff's damages would not have occurred but for X fire company not being called to respond in a timely manner, because in the world of volunteer fire departments (particularly in Pennsylvania where the stations are not staffed), they could not prove that said X fire company would have responded to that particular call in a timely manner with sufficient number of properly trained personnel who would have made a difference at that particular fire.
I know in a perfect world that we should always call the closest company regardless of municipal boundaries, however, the reality is that it is better to get a truck full of qualified members 30 seconds later than a truck with a driver and a junior right away, but they are unable to do anything.
Anyway, I would be interested in your comments on this particular issue from your standpoint as an attorney as well as a fire chief.
Great question. I agree with your analysis. When it comes to sovereign immunity – I go back to the fundamental distinction between discretionary acts and functionary/ministerial acts. Immunity protection is more likely to exist for discretionary acts, and less likely to exist for functionary acts.
Deciding on run cards – in my mind – is most likely going to be considered a discretionary act – and thus likely to receive what is left of sovereign immunity protection. Figuring out who should respond to what incidents is discretionary because it requires the balancing of several competing interests. One of those interests is proximity of the responding units, but proximity is not the only interest to be considered. Compatibility of equipment (hose fittings, SCBA, radio interoperability); compatibility of training; and standardization of operating procedures must also be considered. The balancing of competing public interests is at the heart of the type of discretionary acts for which most jurisdictions still provide immunity protection.
I have not come across any case law supporting either side of this issue, and would welcome any input from anyone out there about a case on point. As you suggest, proving causation would be a problem. In my experience, a person's stated reasons for making a decision, does not always align with their actual motivations – and that may be the case here. Fears of liability are often cited as justification for decisions that someone wants to make. In any event, I agree with you that tort liability concerns are probably minimal in such a situation – assuming the distances are not that great – and the run cards would otherwise meet NFPA 1720. On the other hand, if the distances are significant – that may change the equation.
As for a 1983 action – absent "deliberate indifference", a constitutional claim is going no where. Again, assuming the decision is made responsibly, based on solid grounds, I cannot fathom a 1983 suit being successful.