Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
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.
