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Arbitrator Orders Laid Off St. Albans Firefighters Reinstated

When I first started this blog my intent was to offer fire law news and information with a perspective that went beyond just the superficial headlines that other web sites provide. In particular I wanted to give firefighters the rest of the story on cases and the law as it relates to the fire service.

A case out of St. Albans, Vermont gives us that opportunity to discuss how arbitrators (and courts for that matter) interpret conflicting terms in a collective bargaining agreement.

It seems like every other story in this blog involves the tough economic times, and how cities and towns are seeking to reduce their financial burden by reducing fire department staffing levels. The St. Albans case involves two fire departments – one from the City of St. Albans and the other from the Town of St. Albans.

As a part of a cost-cutting strategy, the City of St. Albans decided to eliminate all non-officer positions in the Fire Department, lay off three career firefighters, and replace them with volunteers from the Town of St. Albans Fire Department. The moved was expected to save the city roughly $300,000, although the figure is disputed. As part of the cost cutting move the City entered an agreement with the town to compensate the town between $100,000 and $125,000 per quarter for services rendered by the volunteer firefighters.

The legal problem that arose was that Article 1, Section B of the collective bargaining agreement between the City of St. Albans and the firefighters union stated:

 “No one outside the bargaining unit shall perform work normally done by those employees within the unit, and that job description is protected under this agreement, except when the City has exhausted its present working force then it may utilize part-time employees.”

In labor law, such a provision is intended to prevent an employer from "contracting out" bargaining unit work to non-bargaining unit workers. The city denied breaching Article 1 Section B, claiming that the management rights clause in the collective bargaining agreement gave the city the right to “purchase goods and services” and “make reductions in workforce”. The union grieved the layoffs, and the matter was submitted to arbitrator Lawrence Katz for consideration.

The challenge was that the two provisions seem to conflict. The city had the right to make reductions in the work force, but had agreed not to contract out work that was being performed by union members.

When ever two contractual provision conflict the initial duty of the arbitrator is to try to find a way to give each provision weight without invalidating the other. In other words, the arbitrator should try to find an interpretation for each provision that will give meaning to the language in each.

Katz concluded that the way to do that to rule that the city has the right to reduce the size of the force, it cannot do so in such a way as to replace the firefighters with non-bargaining unit employees. In other words, if the city could simply eliminate the positions without needing replacements it was free to do so. However, it could not use volunteers to replace the laid off firefighters without violating the collective bargaining agreement.

On August 26, 2010 Katz ordered the city to reinstate the three laid off firefighters with backpay, benefits and seniority. City officials are claiming foul, arguing that Katz “emasculated” the management rights clause.

The city has 30 days to appeal Katz’s decision.

Posted in Labor Law, Staffing, Volunteers

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Legal Challenge by Palo Alto Committee Results In Change To “Misleading” Firefighter Staffing Ballot Initiative

At a time when local officials have made, and continue to make, drastic cuts in fire departments in an effort to deal with the financial crisis, Palo Alto Firefighters Local 1319 found a novel way to ensure that the public (not politicians) had the final say in what fire service related  cuts would be made. They supported a ballot measure that if passed would prohibit the city council of Palo Alto from reducing the fire department's staff below 2009-10 levels or closing stations without first holding public hearings and an election.

Supporters of the measure, designed as “Measure R”, obtained the necessary signatures to ensure the matter was on the November 2, 2010 ballot, over the objections of most Palo Alto politicians.

However, last week the former Mayor of Palo Alto filed a lawsuit objecting to certain language in the measure as "false and misleading". Dena Mossar, who is chairperson of a committee opposed to Measure R, alleged that the phrase “Such a decision should not be made solely by one or two individuals on the city council or in the city administration", might mislead voters to support the measure. She claimed that only a majority of the city council could vote to reduce services.

Last Thursday, August 26, 2010, Santa Clara County Superior Court Judge Kevin J. Murphy sided with Mossar, and ordered the offending language changed to "Such a decision should not be made solely by the city council."

Ironically Mossar’s committee is called “Safe Palo Alto”….. and is made up of politicians….. I suppose they should be able to spot false and misleading language from a mile away.  Seriously… “SAFE PALO ALTO”.

More on the story.

Posted in Civil Suit, Politics, Staffing

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Odenville, Alamaba Fire Chief Terminated

We have covered some pretty bizarre cases here at Fire Law Blog – but certainly none come close to being as disturbing as this one. An Alabama fire chief has been accused of improperly disposing of two premature (approximately 20 week) still born fetuses at an emergency scene.  

During the early morning hours of July 23, 2010, Odenville Fire Chief David Davis along with another paramedic responded to a 911 call where a young woman who was 20 weeks pregnant was in excruciating pain, and suffered a miscarriage. The emergency workers, in a rush to take the woman to the hospital, allegedly flushed the fetuses down a toilet.

The fire chief defended his action saying that “We followed the state protocol issued by the medic who was in charge at the scene.”  

The family of the woman reported the matter to the St. Clair County Sheriff who acted immediately to retrieve the fetuses from the septic tank. They were cleaned, forensically examined, and turned over to the family for proper burial.

The forensic examination concluded that the fetuses were born dead and even if the delivery had happened in the hospital would not have survived.

The woman and her family are deeply distressed by the incident and plan to proceed with legal action.

The fire chief was placed on administrative leave immediately after the incident, and was terminated by the town council on August 23, 2010.

The firefighters in Odenville are standing solidly behind the fire chief and maintain that he has done no wrong.

St. Cloud County Sheriff Terry Surles has announced plans to convene a Grand Jury in October to review the entire matter.

Read more of the story here.

Posted in Disciplinary Action, You Can't Make This Stuff Up

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Voters Turn Out To Support Firefighters Despite Misdeeds

In these difficult economic times, the average taxpayer does not appear to be inclined to tolerate too much in the way of misconduct from public employees. So firefighters in Key Peninsula, Washington were bracing for the worst last week when the fate of a $1 million tax levy to provide paramedic service was in the hands of taxpayers. Fortunately the public looked past the problems and approved the levy on August 17, 2010 by a large margin

The vote came on the heels of two highly publicized disciplinary incidents involving seven firefighters that provided plenty of fodder for the anti-levy advocates and the media. A failure to pass the levy vote would have striped the department of more than $1 million in taxes and trigger layoffs of 14 staff members, including nine paramedics. Read here.

Five firefighters were disciplined over an incident that occurred on June 11, 2010 when personnel attended a training conference in Wenatchee. The five went to the hotel lounge where a firefighter is alleged to have gotten drunk in the company of two battalion chiefs, a lieutenant and an administrator. He later passed out or fell asleep in the shower at the hotel room with the water running, resulting in extensive flooding. The hotel did not press charges saying that there was no permanent damage.

The firefighters decided not to report the incident, but when the chief found out he took disciplinary action by terminating the firefighter, demoting one of the battalion chiefs and the lieutenant, and reprimanding the administrator. Charges against the other battalion chief are still pending.

Earlier this year two off-duty firefighters were disciplined following an incident at a bar in Tacoma. An investigation concluded that a firefighter put a woman in a choke hold while the other firefighter scuffled with another patron. Both were disciplined but retained their jobs.

For more on the story.

Posted in Disciplinary Action, General legal issues

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Alcohol Served to Underaged Firefighter Leads to $35 Million Suit Against Fire Department

A Tennessee volunteer firefighter who was served alcohol at a fire department reception has filed a multi-million dollar negligence lawsuit against the fire department, the fire chief, a police detective, and three other individuals.

Nathan Mumpower was severely injured on July 30, 2009 following the reception when his vehicle crashed into a utility pole and tree, leaving him with brain and spinal cord injuries. Mumpower was 19 at the time, and spent 62 days a specialized hospital in Atlanta, amassing over $700,000 in medical bills.

The alcohol was served following a Sullivan County Volunteer Fire Department awards ceremony at the home of a deceased assistant fire chief. His widow was also named as a defendant, as was the County.

The detective named in the suit was off-duty and had come to the party briefly to pick up his son who had also been drinking. The suit alleges that he observed Mumpower to be intoxicated and knew he would be driving himself home, but made no effort to stop him. The detective was subsequently dismissed from the force following an internal investigation.

Mumpower remains charged with DWI and is scheduled to be arraigned in September, 2010.

Posted in Civil Suit, Duty to Act, Negligence, Volunteers, You Can't Make This Stuff Up

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Ohio Fire Captain Charged with Installing Hidden Bathroom Cams

An Ohio fire captain is facing a number of criminal charges after he installed a hidden video recorder in bathroom at the Munson Township YMCA.

Posted in Criminal Law, Disciplinary Action, You Can't Make This Stuff Up

Everett Firefighters File Claim Seeking a Total of $9 million For Asbestos Exposure

Fire fighters are exposed to various hazards during the course of our work – but a claim filed last month by Everett, Washington firefighters reminds us that all hazards must be considered and mitigated during training activities.

In July 2007, Everett firefighters trained in several old residences owned by the city, chopping holes, pulling ceilings, and performing various other demolition oriented overhaul type activities. Not surprisingly, the activities caused a great deal of dust and particulates to become airborne.

While firefighters were initially told the buildings were asbestos free, after five days of training it was discovered that the buildings still contained asbestos. The firefighters, their gear, fire apparatus, and even fire stations had to undergo decon. Some worried whether they had inadvertantly brought asbestos home to their families.

The city and fire department have acknowledged responsibility for the mistake, and have agreed to follow the recommendations of a consultant brought in by the state to evaluate the exposure. The recommendations include providing life-time health evaluations for 27 of the 49 exposed firefighters and new procedures to evaluating buildings used for training.

The Everett firefighters along with their spouses have filed a claim with the city (a prelude to filing a lawsuit) seeking a total of $9 million. It is reported that the firefighters are not interested in compensation,  but rather they want the city to be compelled to pay for the lifetime medical monitoring, as opposed to simply "promising" to provide it. 

Given the great lengths we have seen some cities and towns go through in recent times to avoid their moral and even contractual obligations to firefighters, it is undoubtedly a wise course of action.

More on the story.

2008 Story.

Posted in Civil Suit, Municipal Liability, Occupational Safety & Health, Workers Compensation

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Disturbing but Not Surprising News from the Cincinnati Fire Department: Firefighters Gone Wild

Nearly nine months ago, I stumbled upon the idea of creating a database to look at the legal issues confronting the fire service. No one really had the information I was looking for – and the idea fascinated me. The initial results from the database will be published in the September issue of Firehouse magazine.

In the process of looking at the various cases and legal issues facing fire departments, fire chiefs and firefighters – I became aware of what some are calling an epidemic of misbehavior by firefighters. Two separate newspapers in different parts of the country have used the term: “Firefighters Gone Wild” to describe their local problems. What is clear to me is that it is not a localized problem and while the extent of the problem is still not totally clear – it is clearly disturbing.

The Cincinnati Enquirer is running a series of articles on the numerous misdeeds of the Cincinnati Fire Department over the past 5 years. According to the Enquirer, some 129 firefighters have been disciplined between 2005 and 2010, including more than 70 firefighters who are/were facing criminal charges. The Enquirer is citing data provided by the fire department for the various violations and disciplinary actions. The department has 840 firefighters – so 129 cases is more than just 1 or 2 bad apples. Click here to see a listing of the 129 cases.

The headline from the August 16, 2010 edition of the Enquirer asked the question: Does Cincinnati Fire Department Need a Culture Change?

Fire Chief Robert Wright, who has been the chief for the past 13 years, is due to retire next year and City Manager Milton Dohoney is saying publically that he is looking for a cultural change to clean up the fire department. He says the city administration plans to start from the top and also look for an option to possibly bring in a female as the next fire chief.

Maybe that kind of Disney-like solution – a human relations “hail Mary” -  will get some head-nods from  the public and maybe it will fly with the press, who tomorrow will move on to some other headline grabbing scandal to sell newspapers. But to those of us deeply concerned with the future of the fire service – we have to realize the solution is going to require more than a politically correct game of musical chairs at headquarters.

My research shows the misbehavior problem is clearly not limited to Cincinnati. It is a nationwide problem. There are AT LEAST a dozen major fire departments struggling with misbehavior problems just as large or larger than the problem in Cincinnati and my sense is the only reason I cannot say there are dozens and dozens of departments is that I haven’t dug deep enough yet…. or other departments have thus far been able to keep the issues out of the press.

Rather than searching for women fire chiefs to magically lead the fire service out of the desert – we need to understand and address the cultural issues that are driving the problem: the reluctance of officers to be officers, the polarization of the workplace that makes fire chiefs the enemy of rank and file firefighters and the last place where firefighters would report wrongful conduct (I call it the Robin Hood Syndrome but that is for another blog), and the institutional tolerance of misbehavior by many firefighters and officers.

I recall the words of a salty old captain that ring as true today as they did 30 plus years ago: We keep our own house clean kid, or someone is gonna come in here and clean it for us. He was not talking about housework.

And I will cite again the words of Jim Collins from How The Mighty Fall:

“Whenever people begin to confuse the nobility of their cause with the goodness and wisdom of their actions… they can … easily lead themselves astray.”

Take heart – Cincinnati Fire!!! You are not alone. Sadly.

Posted in Criminal Law, Disciplinary Action, You Can't Make This Stuff Up

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FD Resistance to Merger in PA Leads To A Different Merger and a Lawsuit

The hard financial times of the past few years have led many jurisdictions to consider restructuring,  consolidating, and merging their fire departments. Nationwide, parts of the country that never considered regionalization before have taken bold steps in an effort to provide a more economical level of services.

According to the Pennsylvania Department of Community and Economic Development there have been approximately 75 consolidations and mergers of fire and EMS departments in Pennsylvania since 1998, affecting roughly 162 fire and EMS organizations.  The movement to consolidate goes against not only the classic resistance to change that has long been a hallmark of the fire service, but in many locales it goes against the grain of a long history of independent fire companies, making the transition that much harder to accomplish.

Against this backdrop, a 105 year old Pennsylvania volunteer fire company finds itself embroiled in a lawsuit with local government officials who forced it to stop responding to alarms…. sort of.

Stowe Township was served by three volunteer fire departments: West Park Volunteer Fire Department, Fleming Park Volunteer Fire Department and Presston Volunteer Fire Department (aka Independent Hose Co. No. 5). When the township sought to merge the three department in 2006, Presston balked citing (among other things) the accumulated debt of the other two companies.

According to Presston officials, the West Park and Fleming Park companies owe $700,000 for the purchase of two fire trucks, and neither the township’s payments, nor the companies’ fundraising efforts and donations are enough to cover the expenses.

After a long administrative battle with the township, Presston decided not to merge with the newly formed Stowe Township Volunteer Fire Department, leading the township to end the fire company’s right to respond.  In Pennsylvania, a fire department must be sponsored/certified by a municipality for it to operate.

In a very interesting move reminiscent of a great chess match, the Presston Volunteer Fire Department opted to officially become a part of the McKees Rocks Volunteer Fire Department. McKees Rocks, a neighboring borough in Allegheny County, has seemingly welcomed the fire company with open arms. McKees Rocks Councilman Robert DiCicco boasted in March that the move doubled the size of their community’s fire department and may lower insurance premiums for area residents.

The latest move in the chess match came last week on August 13, 2010, when Stowe township filed a lawsuit against Presston VFD seeking payment of $119,523 for fire suppression equipment that Stowe says Presston VFD won't hand over after it changed the its affiliation to McKees Rocks. The lawsuit alleges that the  equipment belongs to Stowe township.

For more on the story.

And more.

Posted in Civil Suit, General legal issues, Volunteers

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Fire Chief Sues Board of Fire Commissioners for Whistleblower Violation

In my line of work, I see a lot of fire chiefs who are under attack. The attacks come in a variety of forms (grievances, law suits, ethics complaints, no-confidence votes) and for a variety of reasons (including some self-inflicted wounds by the chief). Usually part of the problem is disgruntled firefighters. The rest of the time, disgruntled firefighters are the entire problem. So when I hear about a case where a fire chief is under attack – and the firefighters actually have the fire chief’s back – it is truly noteworthy.

In South Carolina, the Holly Springs Fire-Rescue District has been a tense place to serve since June 16, 2010 when the Fire Commissioners, citing budgetary constraints, gave Fire Chief Lee Jeffcoat an ultimatum:  accept a 50% salary cut or resign.

Chief Jeffcoat refused the offer and was terminated by the fire board. Jeffcoat received his termination letter on June 17, 2010.

The firefighters immediately stood united behind the chief and decided to resign en masse but later abandoned the idea out of a concern for the citizens. At a public hearing on June 18, hundreds of citizens also expressed their concerns about the termination of the fire chief. Some feel the board has a vendetta against the chief. Read more about it here.

Following the termination, Chief Jeffcoat filed suit claiming the fire board violated the state’s open meeting requirements at the meeting in which he was terminated. A Spartanburg judge agreed and since that time the board offered the chief a severance package contingent on him dropping his lawsuit. Read more.

Chief Jeffcoat rejected that offer and is now pursuing a whistle-blower action against the board alleging that he was terminated as retaliation for speaking out against holding meetings without adequate public notice.  

The supporters of Chief Jeffcoat have also taken their concerns to the Spartanburg County Legislative Delegation. Unlike fire districts in most jurisdictions where board members are elected by the public, the county legislative delegation appoints members to boards of special purpose districts like Holly Springs Fire-Rescue District. The group is seeking to ensure in the future that board members are elected not appointed.

More on the story. And More.

Posted in Civil Suit, Municipal Liability, Open Meetings Laws

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Lawrence Mayor’s Comments Infuriate Firefighters

Economically depressed Lawrence, Massachusetts has seen its share of fires – and controversies – over the years, but a recent public statement by Mayor William Lantigua has angered the few remaining firefighters that Lawrence still has, igniting another controversy.

A number of area news sources have confirmed that the Mayor publicly asked for volunteers to help videotape his firefighters to determine if they were purposefully responding and working at fires in a less than diligent manner. The request comes after 23 additional firefighters were laid off and three more stations closed on July 1. 

At a meeting on August 11, Neighboring communities expressed their mounting frustration with having to routinely dispatch fire apparatus into Lawrence for routine alarms because Lawrence is so poorly staffed. The 80,000 citizens in Lawrence are presently being protected by 13 to 15 on-duty firefighters per shift while at one time there were 48 firefighters per shift.

Obviously the report is not sitting well with the firefighters, who are probably hoping the mayor will scrutinize the videos to examine the impact of understaffing. The latest is that the mayor denies soliciting volunteers but acknowledges that when people call to complain about the “slow response times” he encourages them to videotape the firefighters.

Posted in Occupational Safety & Health, Staffing, You Can't Make This Stuff Up

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Gambling Charges Brought against BC in South San Francisco

Last Friday, a South San Francisco Battalion Chief was charged with running a gambling operation while on duty. Chief James Selvitella is alleged to have used city phones, computers and work time to further the enterprise, and came to light after the fire chief learned that a subordinated owed him $30,000 in gambling debts.

The operation is alleged to have handled hundreds of thousands of dollars in bets daily.  

News reports indicate that Selvitella was fired in February, 2008 over the gambling allegations – and in a move that makes me think that “You Can’t Make This Stuff Up” is not adequate – we might need a new category – “Brass Cajones” – he sued the department for wrongful termination!!! He claimed the department had no rules against gambling and in fact openly tolerated it. His suit alleged he was retaliated against for complaining about the city’s decision to hire a deputy chief from outside the department.

Selvitella was terminated for bookmaking while on duty, encouraging a subordinate to gamble, and lying during the investigation.

For more on the story.

And more.

Posted in Criminal Law, Disciplinary Action, You Can't Make This Stuff Up

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Tampa Radio Show Turkey Stunt Results In No Charges Despite Fire

Florida officials have decided not to file criminal charges against a Tampa morning radio host who was responsible for a live stunt involving a fire in a van last December. Todd Schnitt, the host of the M.J. Morning Show on WFLZ, and two other employees will enter a pre-trial diversion program.


The stunt involved deep-frying a turkey in a van located in a parking lot. The van had been stripped of its gas tank in order to minimize the risk – and a frozen turkey was lowered through a hole cut in the van’s roof into a pot of boiling oil.  While the crew seems to have anticipated that a fire would extend from the fryer to the van (and based on their “on-air” comments seemed to enjoy the fact that it did), Hillsborough State’s Attorney Mark Ober said there was no intent to commit arson. He did cite them for an open burning violation.


Is this just another case of officials not taking fire related crimes seriously? After all, fires are just an accident…. right?


 



Posted in Books, Criminal Law, Fire Prevention, You Can't Make This Stuff Up

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Seattle Firefighter Under Investigation for Falsely Claiming a Disabling Injury

A Seattle firefighter’s $12.8 million judgment against the city as well as his pension may be in jeopardy as the result of an investigation into just how serious his job-related injuries actually are.


In 2003, Firefighter Mark Jones fell down a pole hole at Station 33. It was not his normal station and he was not familair with the station layout. Jones got up during the night to use the bathroom and  fell down the unguarded pole hole resulting in head injuries; back injuries; fractured pelvis, vertebrae, and ribs; and internal injuries to his liver, lungs and bladder. A similar accident had occurred at the same station in 1975.


Jones sued the department for negligence and received a $12.8 million jury verdict. He was also awarded a disability pension.


The city is now seeking to vacate the judgement based upon an investigator’s video of Jones. The news reports about the video make it sound like a clear case of fraud. Take a look for yourself. I am not convinced that it shows a man who can perform the duties of a firefighter – but perhaps there is more to the case. That will ultimately be for a court to determine.



Posted in Civil Suit, Evidence, Negligence, Workers Compensation

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Judge Blocks FDNY From Hiring 300 Probies

Controversial Judge Nicholas Garaufis has dropped another depth charge on the FDNY, blocking the department from hiring 300 new firefighter recruits. Judge Garaufis has previosuly ruled that FDNY purposefully discriminated against minority applicants in its earlier tests. The proposed 300 new firefighters would have come from a brand new testing process.

In his latest decision he said the city offered no proof that the new test was free from discrimination or sufficiently job related to pass muster. Interestingly, 35% of the new class would have been minority candidates. However, under a previous order Judge Garaufis ruled that 3 of every 5 new hires be a minority as a remedy for past discrimination.

Posted in Civil Suit, Discrimination

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Louisville EMT In Prison for Manslaughter Catches a Break

Tammy Brewer, the Louisville Metro (Kentucky) EMT who was originally charged with murder following an ambulance crash on April 3, 2008 that killed a patient, is in the news again. Last December, she pled guilty to involuntary manslaughter and accepted a 10 year sentence. It appears she may be catching a break, and may have the opportunity to be released on probation in about a year.

This tragic case is one of twelve I am tracking since 2001 where fire and EMS personnel have been charged criminally with murder or manslaughter for on-duty actions.

Posted in Criminal Law, Manslaughter

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Michigan Appeals Court Dismisses All But One Firefighter From Personal Injury Suit

The Court of Appeals of Michigan handed down a ruling last week that dismissed a fire department and several firefighter defendants from a personal injury suit, but left one firefighter now to face a jury.

The plaintiff in the suit, John Cheek, owned a Subway sandwich franchise. On February 8, 2007, he allowed members of the Clinton Township Fire Department to use an outside water spigot as part of a training exercise being conducted nearby. The water was needed as part of a breaching and breaking drill.

Cheek alleged the firefighters carelessly left the water running,  which in February in Michigan can only result in one thing. Several hours afterwards, as Cheek was taking out the garbage he slipped on a sheet of ice, resulting in serious injuries including a broken hip.

Cheek sued the fire department, Fire Chief Michael Phy, and Firefighter Timothy Duncan, who was in charge of the drill. The suit alleged Duncan was grossly negligent in allowing the area to become iced over. Cheek later sought to add the chief of training and a battalion commander to the suit, alleging they were negligent in their supervision of Duncan. However, the trial court refused to allow either party to be added, finding that any negligence on their part would be subject to governmental immunity. The trial court also dismissed the department and the fire chief from the suit based on immunity.

On appeal, the Michigan Court of Appeals affirmed the trial court rulings. Here is the actual decision. Download Cheek

That leaves Duncan to face the allegations himself. Why? In Michigan as in most states, there is no protection immunity for gross negligence. Only claims of negligence are entitled to immunity.

There are some factual questions that may give Duncan the advantage at trial, including the fact that the spigot was defective (leaked), and Cheek's own negligence may have played a role is his fall.

 

Posted in Civil Suit, Immunity, Municipal Liability, Negligence

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