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Outrageous Lawsuit in Michigan Against Fire Department & Firefighter

Those who know me know that I adamantly defend our civil liability system against baseless media accusations that portray most plaintiffs as bums looking for easy money and plaintiffs' attornies as unscrupulous ambulance chasers. Its just not the case…. most of the time ….

However, this accident case filed against the Frenchtown Township Fire Department and firefighter Fred Carter is one that I cannot defend. Hopefully the plaintiff and his attorney get what they deserve: a Rule 11 sanction by the court for filing a frivilous lawsuit!!!!!

Here is an abbreviated version of Rule 11 of the Federal Rules of Civil Procedure (most state's adopt a comparable rule).

Rule 11

(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name — or by a party personally if the party is unrepresented. …

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; …

(c) Sanctions. … If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. …

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Posted in Civil Suit, Negligence, You Can't Make This Stuff Up

4 comments Posted by Curt Varone on January 28, 2011

DeKalb County Wrongful Death Suit Settled – Lesson Learned

A settlement has been reached in the lawsuit against DeKalb County arising out of the death of Ann Bartlett. Mrs. Bartlett died on January 24, 2010 after her oxygen device sparked a fire in her home.

Bartlett called 911 to report the fire and fire trucks responded to her house, but apparently returned in service when they saw nothing visible from the street. They returned several hours later to find the house well involved.

The suit was filed by Bartlett's family against the county and five firefighters. CBS Atlanta is reporting that the settlement was for $200,000, and includes assurances that steps have been taken to prevent a reoccurrence. CBS Atlanta is also reporting that interim DeKalb County Fire Chief Eddie O'Brien has outlined 10 specific changes the department has made in the aftermath of the debacle.

The settlement releases the county and the five individual defendants from liability, but does not admit responsibility. The ten specific changes include:

1. Updating of ICS guidelines and associated training

2. Mandatory use of ICS on all incidents

3. Battalion chiefs to verify all incidents where company officers wish to cancel additional units

4. Mandatory 360 walk around of the location of a reported fire.

5. Clarification of level 1 staging.

6. Clarification on what crews should do if an address cannot be located.

7. Improvement in tracking critical factors such as Address, Call Back Number, Information on the MDT, Location of Incident, Size Up and a 360 view.

8. Education on the Automatic Number Identification and Automatic Location Identification system.

9. Review of the training required of acting officers.

10. Improvements to GIS mapping on the Mobile Data Terminal in fire apparatus

For more information, including video coverage.

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Posted in Civil Suit, Immunity, Municipal Liability, Negligence, Wrongful death

2 comments Posted by Curt Varone on January 26, 2011

FDNY Whacked with Two $20 Million Wrongful Death Suits

December 27, 2010 was a tough day for many New Yorkers. A devastating blizzard, unplowed streets, traffic gridlock, a back log of EMS calls 1300 incidents long… then the prompt removal of the Chief of EMS… and now two $20 million dollar lawsuits filed by the same attorney on behalf of two different families who lost loved ones.

Attorney Sanford Rubenstein represents Robert Davis, the widower of Claire Reed who died of heart attack on December 27, 2010 after waiting more than 90 minutes for an ambulance, and Laura Freeman, daughter of Yvonne Freeman who similarly died of a heart attack the same day after a 45 minute delay.

AOL News quoted Rubenstein as saying "The negligence of the sanitation, transportation and first responders departments caused this tragedy… The failure to declare a snow emergency was inexcusable as was the breakdown of the 911 system."

Rubenstein echoed a sentiment we hear again and again following a major incident: “one of the main goals after a tragedy like this is to try to get change, so what happened here doesn't happen again."

More on the story.

NY1 Video Coverage.

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Posted in Civil Suit, Duty to Act, EMS, Negligence

No comments Posted by Curt Varone on January 25, 2011

Volunteer Arson Again Again…

A third volunteer firefighter has been charged with arson in Cleburne County, Alabama, following the arrests of two firefighters for arson earlier this month.

Adrian Campbell, 19, was arrested on January 21, 2011 for setting a fire vacant home on fire on November 17, 2010. The other two firefighters, Tyler Moore and Kevin Johnson, both 18, were arrested two weeks ago in connection with a January 6, 2011 fire. Moore was also charged in connection with the November 17^th fire. All were members of the Hollis Crossroads Volunteer Fire Department.

The Fire Litigation Database currently has 268 criminal cases against firefighters for duty related offenses, 67 of which are arson cases (25%). Fifty-three of those cases (79.1%) involve volunteer or call firefighters. While 13 of the 14 career firefighter arson cases (92.3%) involve firefighters acting alone, 24 out of 52 of the volunteer cases (46.2%) involved multiple defendants and/or conspiracies to set fires.

The numbers present a stark difference between career and volunteer fire setters, and indicate that arson in the volunteer service is much more likely to occur among groups of firefighters, as appears to have been the case in Cleburne County. One would hope that the social nature of these arson groups might offer an opportunity for fire department leadership to intervene and prevent fires from occurring. At a minimum volunteer fire officers need to be attentive to clues indicating that some in the organization may be contemplating or involved in such actions.

For more on the story.

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Posted in Arson, Criminal Law, Volunteers

No comments Posted by Curt Varone on January 25, 2011

SC Volunteer Firefighters Accused in Theft Ring

Two volunteer firefighters from the Ridgeville Volunteer Fire Department, in Dorchester County, South Carolina, have been arrested in Orangeburg County in connection with the theft of nearly $40,000 worth of copper wire.

Firefighters Jeffrey McQueen Riley, Jr., 21, and Johnathon Ryan Carter, 24, along with 17 year old Daniel Addison Carter, 17, allegedly used the Ridgeville Fire Department’s bolt cutters to break through security fences to access the wire at three electric company locations. All three men have been charged with grand larceny and criminal conspiracy.

As the news clip explains, alert citizens led to the trio’s arrest. Based on tips called into police, a patrol car spotted Riley’s vehicle leaving the scene of a theft. The trio promptly abandoned the vehicle and made their escape on foot. Riley then attempted to report his vehicle stolen. He was also charged with making a false police report.

Riley and Johnathon Carter have been dismissed from the fire department.

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Posted in Criminal Law, Theft in the Volunteer Fire Service, Volunteers, You Can't Make This Stuff Up

No comments Posted by Curt Varone on January 23, 2011

Weekend Random Thoughts on Fire Service Legal Challenges

Fire Law blog is all about the connection between the fire service and the law. Virtually every aspect of what firefighters do – is impacted by the law and legal issues.

Legal services are expensive, and not everyone has friends or relatives who are attorneys that can answer basic legal questions for free, let alone represent them in court. As a result many people choose to go without access to good, competent legal advice until it is too late. Even then the advice and representation comes at great expense.

Is there a solution? Well, actually yes, there is. Legal insurance. Low cost and affordable, legal insurance offers peace of mind. In a business such as ours where legal issues arise daily, low cost legal insurance makes sense.

In the right hand column of my blog you will see an advertisement for “Equal Justice”. Take a moment to look at what is available and see if there is a program that is right for you and your family. There is a video that explains what programs are offered and why we all need the protections of legal insurance.

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Posted in General legal issues

No comments Posted by Curt Varone on January 22, 2011

Orlando Cheating Scandal Alleged

Another cheating scandal has hit the Orlando Fire Department. The new scandal is over the lieutenant’s exam. Allegedly someone sent a text message informing certain members that part of a tactical examination scenario would involve a duplex residence.

Union president Steve Clelland commended Fire Chief John Miller’s handling of the matter, and prompt investigation. The matter is expected to be wrapped up by next week.

In 2007 a scandal emerged involving a promotional examination for assistant chief. Allegedly a candidate listened into to radio transmissions on an open radio frequency as facilitators prepared for it. The actual exam occurred in 2002, but it was in 2007 that the matter came to light and the issue became contentious because there were no rules prohibiting candidates from listening in to the radio channel.

More on the story.

Video: http://www.bing.com/videos/watch/video/cheating-scandal-rocks-orlando-fire-department/1d0veddtv?src=v5:share:v5:share:permalink&from=sharepermalink-v5:share:permalink

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

1 comment Posted by Curt Varone on January 20, 2011

Another Bad January for DeKalb County Fire

January 2010 was a very difficult month for Dekalb County Fire Rescue, and it appears that January 2011 is shaping up to bring problems of a different sort.

Recall on January 24, 2010,a fire at 1687 Houghton Court North in Dunwoody claimed the life of Ann Bartlett. Crews dispatched to the house hours earlier failed to fully investigate the initial call. Bartlett's death prompted a very public investigation, leading to the forced resignation of the fire chief, disciplinary actions against five firefighters, and a civil lawsuit.

Now January 2011 brings allegations of a different sort. Four off-duty firefighters are alleged to have gone to Fire Station 24 after going out drinking last Tuesday night. The four were scheduled to be on duty Wednesday morning at 0700, and opted to sleep at the station rather than drive home on icy roads and then drive back to the fire station for 0700. The allegations include the fact that the firefighters brought alcohol with them to the station, and that two of them were intoxicated at roll call Wednesday morning. Allegations have also been made that two chief officers were somehow involved.

While the media covering this story seem to have sensationalized every aspect of what occurred, off duty personnel bunking in to avoid icy roads or an unnecessary commute is hardly newsworthy. Bringing alcohol into the station and being intoxicated at shift change are certainly serious disciplinary matters, but again, hardly headline newsworthy – let alone worthy of making national news. What is going on in DeKalb County? There has to be more going on than meets the eye.

Here's a link to a video on the story.

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

4 comments Posted by Curt Varone on January 18, 2011

Houston Sexual Harassment Case Update

There has been a new development in the sexual harassment case involving Houston firefighter Jane Draycott that has been in and out of court and the media for the past few years. The EEOC has issued a finding of reasonable cause to believe Draycott was subjected to a hostile work environment.

Report: Draycott was Victim of Harassment within Houston Fire Department: MyFoxHOUSTON.com

There's another video of the Mayor of Houston from July 9, 2009 discussing the Draycott situation back then.

And here is the EEOC Determination Letter: Download 47022897-Draycott-EEOC[1].

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Posted in Civil Suit, Disciplinary Action, Discrimination, Sexual Harassment

2 comments Posted by Curt Varone on January 17, 2011

Paramedic Appeals Ruling in Chapel Hill Football Player Wrongful Death Suit

There has been another development in a heartbreaking case from Orange County, North Carolina that has raised several important EMS questions. Atlas Fraley was a 17 year old Chapel Hill High School student who died on August 12, 2008 following a pre-season football scrimmage.

After the scrimmage, the 260 pound Fraley went home complaining of a headache and severe muscle cramps. His parents were at work, so he called 911. Paramedic James Griffin from Orange County Emergency Medical Services responded.

Fraley told Griffin he thought he was dehydrated, and specifically requested an IV. He advised Griffin that a previous dehydration experience from the previous summer was resolved quickly with an IV. Griffin refused to give him an IV, but told him instead to keep drinking fluids. When Griffin was unable to reach Fraley’s parents by phone, he allowed the minor to decline aid. The age of consent in North Carolina is 18.

When Fraley’s parents returned home, their son was dead. While the autopsy was inconclusive, the parents filed a wrongful death suit alleging negligence by Orange County EMS and Griffin. The focus of their case has been to raise two major questions:

After an initial court ruling that found Orange County to have immunity protection, the parents dismissed Orange County and Orange County EMS from the suit, and have been proceeding against paramedic James Griffin individually. Last November Superior Court Judge Carl Fox ruled that the immunity law that protected the county did not extend to Griffin personally. According to the parent’s attorney, Donald Strictland, Griffin is covered by the county's insurance policy, so a finding of liability on his part will trigger policy coverage.

The latest news is that Griffin has opted to appeal Fox’s ruling now rather than wait until after trial. The North Carolina Court of Appeals is expected to hear the case later this year.

The case raises several important issues including: the ability of a 17 year old to decline aid in a state that says the age of consent is 18 (some states allow 14 year olds to consent for themselves); the capacity of someone suffering from heat related emergency (or any judgment impairing condition) to decline aid; the issue of abandonment; and the liability exposure of paramedics (as well as EMTs and firefighters) where statues only provide protection to public agencies.

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Posted in Civil Suit, Duty to Act, EMS, Municipal Liability, Negligence, Wrongful death

1 comment Posted by Curt Varone on January 15, 2011

Who’s Job Is It To Remove Bodies?

There's an interesting controversy brewing in Detroit where the family of a man who died Saturday evening, is upset because EMTs didn't remove his body. James Rogers, 75, died of natural causes. Police were notified but did not respond for three hours, and it was two more hours before the funeral home could remove the body.

Regarding the five hour wait, Roger's daughter Jamie Allen is quoted as saying "You all just took too long".

Do people really believe that our EMS system should be responsible for moving dead bodies? There are some pretty significant ramifications if our role is to expand in such a way that will meet this family's expectations. Here's a video on the story.

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Posted in Duty to Act, EMS

9 comments Posted by Curt Varone on January 13, 2011

Taxpayers Challenge Colorado Fire District’s Tax Rate

Thirty-one taxpayers in Cimarron Hills, Colorado have filed suit against the Cimarron Hills Fire Protection District challenging the district’s tax rate, and seeking over $2 million that was illegally collected going back to 2004.

The suit was filed on December 30, 2010 under the Colorado Taxpayer Bill of Rights, nicknamed TABOR. It prohibits state and local government from raising tax rates without voter approval. Tabor was enacted in 1992 as a state constitutional amendment. Its impact on the Colorado economy is the source of great debate with some claiming it to be of great value and other decrying it as a "formula for decline".

The plaintiffs claim that the maximum legal tax rate that the district can assess is 7.598 mills, and are seeking a refund of all illegal tax revenues collected plus 10 percent interest per year, and an injunction to restrict the district’s spending of funds that exceeds the mill levy of 7.598 mills. The current tax rate collected by Cimarron Hills is 11.11 mills.

The district reports that if the suit is successful, there will be major reductions in staff and the potential to lose the ability to effectively serve the public.

Here’s a video on the story.

More coverage of the issues.

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Posted in Civil Suit, Constitutional Rights, Municipal Liability

No comments Posted by Curt Varone on January 12, 2011

NJ Judge Approves 50 Layoffs in Orange

A New Jersey Superior Court Judge ruled today that the City of Orange Township can move forward with plans to layoff 50 employees including police and firefighters. Police, fire and city worker unions filed suit on January 6, 2011 to block the layoffs claiming they would jeopardize public safety, and that the city failed to give them a meaningful opportunity to negotiate.

Judge Patricia Costello disagreed and cleared the city of about 33,000 residents to move forward with the layoff plans in an effort to close a $6 million budget shortfall. The layoffs will be combined with demotions.

Union attorneys are considering an appeal. The layoffs will impact twelve firefighters.

More on the story.

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Posted in Civil Suit, Labor Law, Municipal Liability

No comments Posted by Curt Varone on January 11, 2011

Oregon Fire Chief Cited For Accident While Responding

The Fire Chief of Marion County Fire District #1 in Oregon has been cited following a December 31, 2010 accident that occurred while he was responding to a building fire. Chief J. Kevin Henson, 44, was cited for driving an emergency vehicle without due regard by the Marion County Sheriff's Office.

Henson was driving a fire department SUV at the time of the accident, and was passing a truck when the vehicles collided. He was injured and the 2010 Chevrolet Tahoe was totaled. According to the sheriff’s investigation, the vehicle data recorder showed Henson was driving at 62 miles per hour in a 45 mph zone, and rolled over at least once.

The fire department is a member of the Willamette Valley Fire & Rescue Authority. Chief Henson is schedule to be in court on February 1, 2011 to face the charges.

For more on the story… and more.

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Posted in Apparatus, Criminal Law

1 comment Posted by Curt Varone on January 9, 2011

Defamation Suit Against Fire Chief Dismissed

A defamation lawsuit filed last year by an angry property owner against a Kentucky fire department and its fire chief has been dismissed. David Young, owner of Vincent Apartments, sued the city of Ashland and Fire Chief Scott Penick over comments the chief made to a reporter following the code related condemnation of the building. Several other code officials were also named in the lawsuit.

Chief Penick made the remarks on January 6, 2010 to a reporter for the Daily Independent, concluding that the building was in a dangerous condition. Young claimed the chief’s remarks were false, malicious, defamatory, and damaged his reputation. The building was evacuated of tenants following the condemnation.

On January 4, 2011, Judge C. David Hagerman concluded that the chief’s statements were "fair comment on matters of public concern", and “clearly based upon the facts". In particular, there were missing fire extinguishers and smoke detectors, a faulty alarm system, and problems with a fire escape.

For more on the story.

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Posted in Civil Suit, Fire Prevention, Immunity, Municipal Liability

No comments Posted by Curt Varone on January 9, 2011

Another Suit Filed in Boston Ladder Crash

Another lawsuit has been filed over the January 9, 2009 apparatus accident that claimed the life of Boston Fire Lieutenant Kevin M. Kelley. The accident occurred when Boston Ladder 26 lost its brakes going down a steep hill and crashed into an apartment building.

The suit was filed by the building owner’s insurance company, Federal Insurance Company, on January 5, 2011 in Suffolk County Superior Court, against the city of Boston and six vehicle maintenance shops. It alleges negligence in maintaining Ladder 26’s brakes, and seeks to recover over $410,000 paid to repair the structure.

The suit is the second to arise out of the accident. Last November, Lieutenant Kelley’s family filed a wrongful death suit against the same six vehicle maintenance shops. The family did not name the city of Boston as a defendant.

More on the story.

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Posted in Apparatus, Civil Suit, Municipal Liability

No comments Posted by Curt Varone on January 8, 2011

Detroit Fire Chief Terminated – Fox News Taking The Credit

Detroit Mayor David Bing has terminated his top two fire officials, and Detroit's Fox News affiliate is claiming their investigative reporting prompted the reaction. Fire Commissioner James Mack Junior and Deputy Commissioner Seth Doyle complied with the mayor's request for their resignations 24 hours after Fox News brought a cover-up allegation to the mayor.

The alleged coverup had to do with a stolen wallet – but it would seem there is alot more to the story. Various other news sources are reporting that the mayor was unhappy with slow response times, poor equipment, and poor communications with his commissioners.

James Mack Jr. Out as Detroit Fire Commissioner: MyFoxDETROIT.com

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Posted in Disciplinary Action, Politics

No comments Posted by Curt Varone on January 7, 2011

Florida Firefighter Resigns After Setting A Brother Firefighter On Fire as a Joke

Apopka firefighter Jason Leblanc, 44, has resigned following the disclosure that he set another firefighter, 25-year-old Jack Shumate, on fire at a holiday party on December 18, 2010. Shumate sustained second degree burns and has not returned to work since the incident.

Leblanc allegedly used lighter fluid to set Shumate’s pants on fire as a joke. Despite his injuries, Shumate has asked that charges not be brought against Leblanc. That appears to be out of his control as Leblanc faces two felony arson charges stemming from the incident. The Apopka Fire Department has launched an internal investigation.

Firefighter resigns after arson charge : MyFoxORLANDO.com

More on the story.

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

Tagged arson, firefighter, joke, prank

1 comment Posted by Curt Varone on January 4, 2011

Austin Firefighters Challenge New Hiring Process

The Austin Firefighters Association, IAFF Local 975, has filed a grievance challenging the city’s new hiring process. The union supports the recommendations of a consultant who was paid $500,000 by the city to develop a new process, but complains that the department has chosen to go in a different direction in search of more minority candidates.

There are over 5,500 applicants competing for 103 openings.

AFD to file grievance about hiring: kxan.com

Here's a link to a more in depth video on the grievance.

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Posted in Labor Law, Municipal Liability, Politics

No comments Posted by Curt Varone on January 3, 2011

2010 Review: Is there a Seasonal Variation in Legal Decisions?

Over the past few weeks, I have been working on a fire-law year in review article and I was blown away at how many major legal decisions were handed down in January and to a lesser extent February of 2010. Four of the 10 most interesting and important fire service cases in 2010 were decided in January and two more were decided in February. Many of the runners up for the top 10 were also decided in January.

That brings up todays burning question: Was it just a fluke? Why would 60% of the major cases be decided so early in the year in 2010? Perhaps it was a coincidence, but maybe not. Perhaps the holiday season gives judges an opportunity to catch up on some of the legal writing and decisonmaking they have been putting off, resulting in a large number of decisions being issued in January. Perhaps judges prefer not to render bad news before the holidays… no doubt when a decision is rendered there’s always bad news to one party or the other… and withhold decisions they actually made in late November and December until after the holidays.

Does anyone out there have another perspective? In any event, we eagerly await the decisions for January and February 2011. And what were those top ten cases for 2010?

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Posted in Burning Question, General legal issues, Historical

No comments Posted by Curt Varone on January 3, 2011

Curt Varone has over 39 years of experience in the fire service, and 27 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006) and Fire Officer's Legal Handbook (2007), and writes the Fire Law column for Firehouse Magazine.