Alameda to Gwinnett County: Can We Be Everything to Everyone
Last week we witnessed the outrage in Alameda when firefighters stood by and watched for an hour as a suicidal man drowned. Crews were waiting first for a Coast Guard boat, and then for a Coast Guard helicopter to arrive with a rescue swimmer.
When the department announced that firefighters were prohibited from attempting water rescues because they were not properly trained and equipped (a victim of financial cutbacks) it unleashed a backlash of allegations from the public ranging from cowardism and laziness to a union entitlement mentality run amuck.
This week the families of two Georgia teenagers who broke through thin ice and drowned in January 2010, filed a wrongful death lawsuit against Gwinnett County alleging that firefighters stood by and watched for forty minutes before acting. The firefighters were waiting for a boat to arrive before attempting the rescue.
The negligence suit was filed in state court by the families of Jacob Bullock, 14, and Marvens Mathurin, 13, seeking a $20 million in damages from Gwinnett County Fire and Emergency Services. The suit names the county and a neighborhood association alleging they failed to adequately fence off the pond or warn residents.
According to the attorney representing the families, R. Keegan Federal Jr., at least one rescuer was observed to be on scene in a wet suit, but did not enter the water until the boat arrived. Federal is quoted as saying “It’s just perplexing why the rescuers didn’t do anything. The witnesses tell us they hesitated too long.”
What do we make of these two cases? Where does a fire department’s duty to act begin and end? If we have a duty to respond to fires, do we automatically have a duty to perform water rescues? If we have a duty to perform water rescues, do we automatically have a duty to perform ice rescues? Does the duty to be trained and equipped to perform ice rescues apply even in Georgia? How about Key West? Where is the line?
The public does not appear to understand that these technical rescue disciplines require advanced training and equipment, along with the discipline not to rush in until proper equipment and personnel arrive. In Alameda we watched the public’s outrage trivialize the need for training and equipment by claiming that the conditions were not all that dangerous – and maybe they have a point based on the facts. But in hindsight many of our operations are not as dangerous as we initially believe because after the fact the unknowns have been removed.
Consider over the past year firefighters in Tarrytown, New York and Liberty Township, Indiana were killed or seriously injured rushing in to rescue workers in confined spaces (a manhole in New York and a dug well in Indiana). In each case there were unconscious workers who the firefighters could plainly see, and wanted to help, but by rushing in they in turn became victims. Had they stood by and watched we likely would have seen similar outcries from the public as we saw in Alameda.
Whenever we discuss the duty to act, we invariably start down a slippery slope. It becomes difficult to determine exactly where on the slope our duty begins and ends, because once you have a duty to act you are fair game for allegations that you didn’t do enough… or do it quickly enough.
Is there a solution? After the Alameda incident, I am not sure there is much we can do to enlist public support for (or even awareness of) the issues. The firefighters’ union in Alameda tried to make a case to the public when their water rescue capabilities were being eliminated two years prior to the drowning – to no avail. People are largely oblivious to fire and emergency concerns until something occurs which impacts them directly (or indirectly through a news story), at which point emotions flare. By the time their emotions settle down the public has turned its attention in a different direction.
But from a legal liability perspective, there most certainly is something we can do. It is not something that was immediately evident to me through much of my fire service career – but it is in very sharp focus now.
Both NFPA 1500 and OSHA require a fire department to have an organizational statement that outlines the services that the fire department is expected to perform. This organizational statement requirement is an opportunity for a fire department to state to the public and its members just what services the organization will and will not provide. It provides a foothold on the slippery slope.
The corollary to the organizational statement requirement is that once an organization undertakes to provide a given service, it must ensure that personnel have the equipment and training to safety execute the necessary tactical evolutions. Of course, if the services must be discontinued, the organizational statement must be updated.
Unfortunately, the existance of an accurate organizational statement will probably not appease an emotionally outraged public following a disaster. However, it would certainly serve as an important liability defense in the event of a lawsuit. That may have to be the best we can hope for.
Interesting, especially since the City of Alameda DID Have money in its budget for Water Rescue Training, but did not use it.
Evident Incompetence by both the City and FD.
However if the FF’s Water Rescue Certification was not current for those on-duty, what next if one got injured?
Gwinnett Co., May be a bit different. Rescue personnel were ready to enter the Hazard Area.
The level of liability may be similiar but different.
In the Tarrytown and Liberty Township incidents. If I remember correctly, these involved two Volunteer FD’s and a Proper
ICS was not etablished to coordinate rescue efforts.
Is it Mal Practice in trying to provide “All Risk Services” but failing in the end especially when you’ve accepted the citizens tax monies, not spent it and end up like the City of Alameda?
ukfbbuff
I think the jury is still out on just what the story was in Alameda. There was some documentation that surfaced saying that the funding was going to be restored – but it’s not clear if the funding was actually restored, and if it was actually restored – was it somehow used for another purpose. There may also be some CYA going on amongst the paper-pushers… not that that ever happens…. haha
Seems like the former Alameda fire chief has some explaining to do, but having said that – he may be able to explain exactly what happened and why. Time will tell. Personally I’d like to see a grand jury investigate the situation – just to level the playing field and keep everyone honest.
I am glad you asked about the “All Risk Services”… obviously you can see the dangers of even suggesting we can provide an “all-risk” service. In Providence our rule book began with our traditional mission statement that included the following: “to remove all persons from danger, what ever the cause”.
I never thought much about that clause from a liability perspective until recently. I also never really thought much about the need for an organizational statement… THAT’s CHANGED!!!!!
Whether or not any of these cases would constitute malpractice (essentially negligence) – would require another level of analysis that has to be done on a state by state basis. Immunity laws (what is left of sovereign immunity plus statutory immunity) may offer some protection – and the public duty doctrine may figure prominently as well… and then there’s the special duty rule. Too much to go into here – but suffice it to say, just because Alameda or Gwinnette County may not have done everything perfectly does not mean they will automatically be liable for negligence.
In Tarrytown and Liberty Township, firefighters without proper training and equipment made a rescue attempt. Like what we saw in Alameda and Gwinnette County – they were faced with a scene where someone was dying. Unlike Alameda or Gwinnette, they opted to try to make the rescue without waiting. The result was death to the original victims plus death or serious injury to the firefighters…. and to those from Alameda who asked the question in the other discussion – yes, both Tarrytown and Liberty Township were cited by their state OSHA for lack of training and for not prohibiting their employees from engaging in activities for which they were not trained and equipped.
I became a FF to save lives. I could have never, ever stood there and watched some one die no matter what. I would have risked my life and without a doubt my job rather than have watched the crowd screaming at us to do something. This is politics and it is beyond shameful. I know we are in culture of safety but I think once we put our own safety in front of the founding principles of a historic profession something is lost. What would you as a FF do if you were off duty in the Alameda scenario with or without the proper training? If you answered “I would wait for someone with the right training before I entered the water” and let that person die, you chose the wrong profession.
Martin
Read up on the Tarryville and Liberty Township incidents. Each of the firefighters no doubt would have said the same thing as you just did. Our safety is critical to a successful rescue. When a firefighter goes down, the rescue of the civilian stops – and it becomes a death sentence for the civilian.
The solution is not for firefighters to take more risks, but to receive the training and equipment they need to safely do their jobs.
The two problems I see in this discussion are:
1. The underlying misuse of statistics. For example, your column sites two incidents where unprepared (untrained, underequipped) individuals were injured/killed. What is not known is how many situations were incountered and resolved sucessfully by unprepared individuals. In every response I have been on there was some aspect in which I was not properly trained, cerified, or equipped to national standards. So it is easy to point to those tragedies but you do so while ignoring the successes.
2. You illuded to but did not fully explore the idea that we (firefighters, police, EMS etc) have been teaching the public that it is too dangerous for them to get involved. We preach that they call 911 on then stand back. The logical conclusion that the public is left to draw is that we will take care of everything for them. Hangnail, cat in a tree, unfreindly neigbors. This is why the tension is building between us and those we serve. National standards are limiting our responses like never before while the public’s expectations are out of scync with what we are allowed to provide.
Curt,
Excellent post. If I may add a little, I’d like to pose some scenarios to some of the readers as well.
I continue to be amazed at the individuals who say they would rush into virtually any scene because that is “what we do” in emergency services. While I am more aggressive than the average firefighter (or shall I say, I was when I was a truck company captain and in charge of special operations for our department) and have a lot of colored ribbons to back that up, I am also not a leader who sends his personnel into suicide situations. Their own suicide, that is.
Regardless of the emotional pull on a scene, the truly courageous commander must weigh a number of options, one very important one being the welfare of his troops. This is not the act of conquering Heartbreak Ridge in order to save many lives, this is mano y mano and as you have already alluded, many of those incidents (a countless number of confined space incidents, that is) have ended horribly because individuals failed to consider the consequences of their actions.
If I knew there was a good chance my actions to save a life would be rewarded by my taking profound personal risk, I’d give it the shot, just like I have done many times. And if I felt that the risk exceeded the likelihood of reward, I would not throw my personnel into what was known in the Civil War as a “forlorn hope”. If Pickett’s Charge gives you any clue into that one, it should suffice.
I think if we consider ourselves to be true heroes, we have to remember that not only should we be serving as heroes to the public, but serving as heroes to our own people, who know we wouldn’t knowingly put them into an unwinnable situation.
But that being said, several years ago I had the opportunity to discuss the implementation of technical rescue programs at the local level with the SC Fire Chief’s Association at their annual conference. There was and always seems to be a certain amount of confusion regarding the implementation of NFPA 1670 and 1006 (technical rescue training and ops and rescue tech proquals, in that order) and how these chiefs were going to put together plans for their communities.
You are not responsible, as fire chiefs, I told them, to handle all these incidents. You ARE responsible, however, for responding to the level for which your charter or statement of capability or whatever says you are, for equipping, training, and staffing for that eventuality, and for knowing what to do if you DO NOT have that capability in house.
Just as a fire department in the middle of Nebraska doesn’t need to know how to do surf rescue in Hawaii, if some circumstance occurred that provided that situation, I would at least be prepared and have a plan for who to call and how long I would have to wait onthat assistance. Oh, and what to do while waiting on shore.
Legally, as Curt has already pointed out, if you say you are going to do it, you’d better be prepared to back that up with a response. Thanks for the soapbox.
John
I agree with you to a point on #1. However, I am not sure that misleading statistics is the problem. My grandfather drove a car for 70 years and refused to wear his seatbelt. That statistic does not mean it was safe for him to drive without a seat belt. It just meant he was lucky. The fact that 99.9% of the time when firefighters engage in an unsafe act they get away with it – does not make it safe or justify violating SOPs, regulations and OSHA laws. In fact it is irrelevant. Each act is safe, unsafe, or somewhere on the continuum based on its own merits, not based on how many times we get away with it.
But let’s follow your thinking, combine it with Martin’s thinking, and carry it out to its logical conclusion. Firefighters must take risks to save lives, and can jusify what ever we feel like doing so long as it involves saving lives. So when money is tight and we can’t get the training or equipment we need, we just take chances. No problem. So if our FD cannot afford the annual service for our SCBAs this year, or last year, or the year before…. and now 1/2 of them don’t work, its really no problem cause we save peoples lives. We’ll just go into fires without them. No money for new PPE for the past 5 years, no problem. We’ll go in without turnout gear. And when money gets even tighter we close fire stations and lay off firefighters – because we know the folks who are left will still get the job done by taking risks. No problem. And as long as statistically – no one get’s hurt we can keep doing it… (by the way John – what number would you use… 50%, 67%, 75%, 99% – how much of the time could we do something like enter a building without SCBA and get away in order for it to be considered safe?)
How about this one – the brakes on the ladder truck are a little spongey… well heck – we can’t put it out of service, what if we need to rescue someone. I’m tired of all this safety crap. I am here to be a hero and save lives and I can’t do it if my ladder truck is in the repair shop because “maybe” the brakes are in doubt… plus we don’t have the money to fix them…
OK, so maybe I am going a little overboard, but hopefully you catch my drift. Where does that line of thinking end??? Can any chance I feel like taking be rationalized because I am America’s greatest firefighting hero? I don’t think so.
As for #2, I am not sure that we have been teaching the public, or the public has been teaching themselves, or the media has been teaching both of us… there’s an interesting social dynamic at work. For example, how did the public come to expect a 911 dispatcher to be able to teach someone CPR over the phone? [BTW, why do I have to sit through a CPR class every year if a dispatcher can teach someone who never did it before over the phone? ] Seriously, did we create that expectation? Did the public create it? Did the media create it? Regardless of who created it the bigger problem is can we meet it?
I don’t think I follow you when you say that national standards are limiting our responses. What national standards provide is guidance for fire departments in terms the minimum equipment and training we need to safely do the job. National standards don’t limit responses – they just say if you are going to do X, you need to be properly trained and equipped to do X, and here is what we recommend in terms of that training and equipment.
Of course if a community cannot afford X – that is a different story. But don’t blame the national standards, or OSHA, or anyone else for that matter. I don’t think anyone would recommend going sky-diving if you cannot afford a parachute that meets national standards… What is the solution for those who want to go sky diving but can’t afford the training and equipment? Seriously… to reduce the training requirements? Reduce the equipment specifications?
You are 100% right when you say that people are overly dependent on us. I am not sure what role the fire service has played in creating that dependency – but I’d like to see it go away!!!! (at least for the nonsense, non-emergency runs we get called on).
Thanks Mick
I missed you last month while I was in SC – but spent some time with a few of your chiefs.
I think part of the issue with folks suggesting we should just rush in and make the rescue is experience and responsibility. I know when I was a firefighter, that rush in mentality was at the forefront of my mind.
Once you have been around for a while, and particularly once you become an officer, you look at things a little differently. When a firefighter decides to take a risk, he/she makes a personal choice to take a very personal risk. When an officer chooces to take a risk, he/she is risking not only his/her own life, but the lives of his/her crew. It is one thing to risk your own life, and quite another to risk someone else’s life.
That is not to say officers are not as aggressive as firefighters – merely that they have more to consider than just their own personal safety. It weighs on you. Your personnel have families – wives, kids, loved ones. No officer wants to be responsible for the death or serious injury of a subordinate.
Once you have been an officer, you look at risk a little differently… a little less selfishly – and a bit more objectively. We realize that we need to rescue the victim, but not at the needless sacrifice of one of our own.
I don’t think any amount of explaining would have changed my mindset back when I was a firefighter, so I have no illusion I can change anyone’s mindset that thinks rushing in is the right thing to do.
Mick – all I can say is – that is why we have company officers, and they make the decisions for the company.
So far the media in both cases report statements from emotional bystanders and tort happy lawyers as fact. Both of the agencies should spend the necessary funds to fight lawsuits of bystander perceived negligence. As well as lawyer negligence double talk. In Calif. I don’t know of any agency that would encourge a rescue attempt of a conscious man walking in neck deep water who does not want to return to shore. Do you send a firefighter to wrestle with him in neck deep water and be drowned himself? And in Ga., I have never heard of any ga. fire apparatus that carries wet suits on every first due truck. If there was a wet suit on the scene at all, I would wager it arrived with the specialy team at the same time as the boat. The true facts will only come out if these agencies present a defense in court. Most likely they will make a backroom monetary settlement and encourage more ambulance chasing lawyers to feed off other’s tragedies.
Hey Billy Ray
Don’t be dissing the lawyers… they have to eat too. LOL. Besides, lawyers are not the problem, they are a symptom of a problem. If nobody dies and no one is injured, the lawyers have to be content with drafting wills and other activities to keep themselves occupied.
The single wet suit allegation is interesting because (as a scuba diver) there are wet suits and then there are wet suits. There are thin neoprene wet suits someone could wear to swim or kayak in, and there are thick neoprene suits for scuba diving in moderately cold water. Neither are appropriate attire for ice rescue or cold weather/ice diving. That requires a dry suit, or for surface rescue what we use up here are survival suits (aka “Gumby suits”).
Also – generally you need AT LEAST 2 survival suits on scene to start a rescue, and 3-4 would be preferable. However, if I had one suit and an ice sled or boat I’d give it a shot if things looked bad for the victim.
GREAT POINT about Alameda – and no one else seems to want to discuss that point – you have a guy in neck deep water that wants to kill himself. How exactly do you subdue him? Without some sort of exposure suit – if you swim around him and wait til he loses consciousness, you’ll be in the same hypothermic state as he is.
That gets us back to training and equipment. It is an employer’s reponsibility to provide the training and equipment for the employees to safely do their job.
Thanks for the post!
Tough questions. Why does OSHA always fine the department and not the council that cut funding. To those whom are driven by emotion and “what we do” I am reminded of an old question; “Does the trash man get all excited and freak when he turns the corner and trash cans are all down the street?” No, why? He’s a skilled pro.