There is a case pending before the Ohio Supreme Court that raises some important considerations for fire departments, and in particular questions about a department’s policy for emergency response driving.

The case arose out of an apparatus accident in Canton, Ohio on July 4, 2007. FF James Coombs was responding to a house fire when the apparatus he was driving struck a vehicle in an intersection and killed the two occupants, Grace and Dale Burlingame.

At the time the apparatus’s siren was not functioning and the unit was responding with lights and sounding its air horn. According to court papers, the apparatus had a red traffic signal and proceeded through the intersection broadsiding the Burlingame vehicle at approximately 35 to 40 miles per hour. The estates of the deceased sued the City of Canton and FF Coombs.

At trial the court granted a summary judgment in favor of the fire department and the driver concluding both were entitled to immunity under Ohio law because at worst FF Coombs was guilty of negligence.  On appeal the Ohio Court of Appeals reversed finding that “reasonable minds could differ” over whether FF Coombs’ driving was “willful, wanton or reckless”, in which case he would not be entitled to immunity protection.

The Court of Appeals decision does an excellent job of explaining negligence, and distinguishing negligence from willful, wanton and reckless conduct.  At issue in the case is whether FF Coombs should have discontinued emergency response due to the loss of the siren, come to a complete stop at the red light, and whether his failure to do so arose to the level of “willful, wanton or reckless” behavior.

Also at issue before the Ohio Supreme Court will be the relevance of the Canton Fire Department’s internal policies and procedures to a determination of the standard of care, as well as the impact of state laws that require fire apparatus to slow down before proceeding through intersections. The trial court ruled that policies and state laws were not relevant to a determination of FF Coombs’ conduct. The Court of Appeals disagreed.

Among the key quotes:

• Violation of departmental policy or of traffic laws may be a factor for the jury to consider in determining whether the conduct of the defendants rose to the level of wanton or reckless.
• The laws and policies are designed to make emergency responses safer for the public. However, they also exist for the protection of the firefighters, who already face serious personal risks in their day-to-day jobs, and who must not be further imperiled en route to their humanitarian roles. We find violations of traffic statutes and departmental policies are factors a jury may consider in determining whether Coombs’ actions were reckless.
• [N]egligence is mere inadvertence, incompetence, lack of skill, or failure to take precautions that would allow the person to cope with a possible or probable future emergency. Reckless consists in intentionally doing an act with knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The person does not intend to cause the harm that results from it but realizes or, from known facts, should realize that there is a strong probability that harm may result, even though the person hopes or even expects that the conduct will prove harmless. Intentional misconduct occurs when the person intends to cause harm.

This case is important because of a possible implication that some may draw from it. Some may interpret this case as calling into question the wisdom of having written policies if they can be used as a basis to find a firefighter and fire department liable. Do not fall for that trap.

One of the goals of having formal policies is to reduce liability – but not through some sort of magical legal hocus pocus (ie changing the name of SOPs to SOGs). That is nothing more than rearranging the chairs on the deck of the Titanic. The goal of having policies is to reduce the likelihood that an event such as a fatal apparatus accident is going to occur. Good, sound policies supplemented by training and enforced by officers who are unafraid of demonstrating leadership can prevent these types of accidents from occurring. That has to be our goal.

Misunderstanding this case as a call to eliminate or dilute written policies will make these kinds of tragedies more likely, not less likely.

The case was argued before the Ohio Supreme Court on Tuesday.

Here is the Court of Appeals decision. 2011-ohio-1325

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