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Idaho Firefighter Seeks $1 Million for Harassment

An Idaho firefighter has filed a claim for $1 million against her department alleging that the department’s failure to stop a captain (ex-boyfriend) from harassing her constitutes her own constructive termination.

Katie Loper filed a 13 page claim with the Sagle Fire District last Wednesday alleging that the district failed to properly address misconduct and harassment by Captain Jason Cordle. The claim is a prerequisite in Idaho before a tort lawsuit can be filed against a governmental entity.

Loper claims that she and Captain Cordle dated on and off between 2008 and 2011, but she claims he misled her about his marital status. She ended the relationship in 2011 upon learning he was still married, prompting the harassment.

According to the claim, Captain Cordle subjected Loper to demeaning conduct in front of other firefighters, attempted to break into her mother’s house, used fire department equipment to pick the lock of her room at the fire station, and sent hostile text messages. Loper reported the misconduct and also had to seek counseling for the abuse.

Fire Chief Robert Webber initiated an investigation and ordered sexual harassment training to be provided to all personnel. However, according to the claim, the harassment continued.

The district “sacked” Captain Cordle in 2011, but a grievance filed on his behalf by the union resulted in an arbitrator ordering him reinstated to his former rank and position in 2012. The district then implemented a plan to ensure a harassment free workplace, but according to Loper’s claim the plan was nothing more than hoping Captain Cordle would remain on his best behavior.

According to the claim, the district’s failure to address the harassment constituted a constructive termination. “Claimant has been constructively discharged from her position of employment with Respondent, as working conditions have become so intolerable that any reasonable person in Claimant’s position would feel compelled to resign.”

Loper’s claim alleges the district’s failure to stop the harassment and misconduct constituted negligence and wrongful termination. She also alleges defamation.

More on the story.

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Posted in Civil Suit, Disciplinary Action, Labor Law, Municipal Liability, Negligence, Sexual Harassment, Sexual misconduct, Wrongful termination

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No comments Posted by on May 27, 2013

Suit Filed By Illinois Firefighter in LODD Trucking Accident

 

One of six Illinois firefighters injured when they were struck by a tractor-trailer last March on Interstate 39, has filed suit against the truck’s driver and the trucking company.

The accident occurred on March 5, 2013 when a tractor-trailer driven by Mansur Shakirov collided with emergency vehicles that were at the scene of a multi-car accident. Three Hudson Community Fire Protection District vehicles and an Illinois  State Police vehicle were damaged. Five Hudson firefighters were injured and one, Chris Brown, was killed. FF Brown was also a career firefighter with the Bloomington Fire Department.

On Monday, firefighter Tyler Cobler filed a federal lawsuit in US District Court for the Central District of Illinois naming Move It Auto Transport and Shakirov, both of Washington State, as defendants. Cobler was one of the injured members.

Shakirov, who was hauling cars at the time of the accident, has been charged with reckless homicide. Cobler’s suit alleges negligence, recklessness, and numerous violations of US DOT regulations.

Here is a copy of the complaint. Complaint

More on the lawsuit.

More on the accident.

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Posted in Apparatus, Civil Suit, Municipal Liability, Negligence

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No comments Posted by on May 22, 2013

Pennsylvania Fire Company and Driver Sued for Apparatus Accident

A volunteer firefighter and his fire company have been sued over a vehicle accident last summer that severely injured an 8 year old boy.

Timothy and Jennifer Kolodychak filed suit last week in Westmoreland County Common Pleas Court against Rostraver Township, Rostraver Central Volunteer Fire Department, and Assistant Chief Justin Shawley alleging negligence.

Eight-year-old Logan Kolodychak suffered traumatic brain and facial injuries hat required reconstructive surgery and left him permanently scarred. His mother Jennifer, who was driving at the time, was also injured in the crash. Logan’s 11 year old sister was also in the vehicle and is alleged to have been traumatized but was physically uninjured.

The accident occurred on July 4, 2012 as Chief Shawley was driving a ladder truck on a run. The firefighters on board stated their emergency lights and siren were activated. According to police reports, the ladder approached the intersection where the accident occurred cautiously due to a red traffic light. When traffic was stopped Chief Shawley proceeded slowly through the intersection and was halfway through when the Kolodychak’s vehicle collided with the ladder.

The Kolodychak’s suit claims that Chief Shawley was driving at an unsafe speed, failed to maintain proper lookout, and failed to properly control the vehicle. They also allege the ladder was not responding to a fire or emergency at the time, and failed to use audible warning devices.

Neither driver was cited by police for the accident.

More on the accident.

More on the suit.

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Posted in Apparatus, Civil Suit, Municipal Liability, Negligence, Volunteers

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1 comment Posted by on May 18, 2013

Chicago Settles Sex Discrimination Suit Over Abilities Test

 

A settlement has been announced in the 2011 gender discrimination case involving the Chicago Fire Department.

The suit, Vasich v. City of Chicago, alleged that the department’s physical abilities test unlawfully discriminated against women because it had a disparate impact on women candidates and was not sufficiently job related.

The lead plaintiff, Samantha Vasich, claims she rigorously prepared for the test, including hiring a personal trainer to assist her, to no avail. The class action suit was filed in federal court.

Attorney Marni Willenson, who represents the plaintiffs, said that under the settlement 138 women who previously failed the physical abilities test will be allowed to reapply or receive a portion of a $2 million payment.

As part of the settlement the city has agreed to adopt the Candidate Physical Ability Test (CPAT), developed by the IAFF.

Despite the fact that the settlement still must be approved by the city council and the judge, the women have been informed that may reapply beginning Monday, May 6, 2013

It is unclear from the news reports whether this settlement will resolve the 2012 suit Godfrey vs. City of Chicago. That suit was brought by twenty African-American female firefighters who where granted a preference under the Lewis v. City of Chicago (race discrimination) settlement, but failed the physical abilities test. All twenty Godfrey plaintiffs are plaintiffs in the Vasich case.

More on the Vasich case.

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Posted in Civil Suit, Constitutional Rights, Discrimination, Municipal Liability, Negligence, Politics

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4 comments Posted by on May 5, 2013

Settlements Announced in Virginia Double LODD Accident Case

A civil suit arising out of a double LODD apparatus accident in 2010 in Rocky Mount, Virginia, is one step closer to being resolved as two of the three parties have resolved their claims.

The accident occurred on July 26, 2010 when an engine driven by Fire Chief Posey W. Dillon, of the Rocky Mount Fire Department collided in an intersection with a vehicle driven by Teri Anne Valentine. The apparatus was responding on mutual aid to a reported structure fire in a neighboring community.

Chief Dillon and Firefighter William D. Altice died in the accident. Neither were wearing seatbelts and both were ejected. A Virginia State Police investigation concluded that Ms. Valentine had the green light at the time of the accident.

Last year FF Altice’s estate sued Ms. Valentine and Chief Dillion’s estate for $2 million alleging both were grossly negligent in driving their respective vehicles. Chief Dillon’s estate and Ms. Valentine filed cross-claims against each other, each alleging the other was responsible..

The settlement announced today involves the cross claims between Chief Dillon’s estate and Ms. Valentine. The terms of the settlement have not been released.

FF Altice’s suit remains on schedule to be tried in September, 2013.

More on the story.

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Posted in Apparatus, Civil Suit, LODD, Municipal Liability, Negligence, Volunteers, Wrongful death

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No comments Posted by on April 30, 2013

Jacksonville Fire Facing Wrongful Death Suit

The Jacksonville, Florida Fire and Rescue Department is facing a wrongful death lawsuit over the death of a 15 year old baseball player.

On May 15, 2010 Andrew Cohn was playing at Dinsmore Park when he collided with a runner at first base. The collision is believed to have caused an irregular heart rhythm leading to cardiac arrest.

His family claims that Jacksonville Fire and Rescue was negligent in their response. Crews were initially delayed due to a train blocking their route, and failed to promptly notify dispatch. Crews then allegedly wasted vital time due to a locked gate and inexplicably standing in the outfield before attending to Andrew.

According to Andrew’s father, Harold Cohn, "The crowd was just shrill, yelling at them to jump the fence, go around, hurry. There were two or three occasions I look up in the outfield and saw two people standing there with medical bags just standing there looking and peering out here."

Harold also claims the crews did not bring a defibrillator with them, and then lied on a report about using one. Since the accident, the Cohns have been very active is fundraising to support AED purchases for schools and recreational areas. The have told reporters that any damages they receive will go toward purchasing more AEDs.

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

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No comments Posted by on April 17, 2013

Idaho Firefighter Alleges Lung Problem Due to Negligence

An Idaho firefighter has filed suit claiming that a he and his crew were negligently exposed to a harmful irritant during a remodeling project at their fire station in April, 2011.

Jay Hamann,  a firefighter for Gowen Field Fire and Crash Rescue, claims that the exposure to the chemicals caused him to suffer from reactive airway dysfunction syndrome, a pulmonary condition similar to asthma. The chemicals were part of a reflooring process being performed by contractors.

The suit names Hamilton & Spear Painting, Northcon, Inc. (the general contractor for the project), Wall 2 Wall Floorcovering, the State of Idaho Military Division, the Idaho Army National Guard, Gowen Field Fire and Crash Rescue, and Gowen Field fire chief William Mattravers as defendants.

The suit was originally filed in Idaho state court, but was removed to federal court by the US Attorney, representing Chief Mattravers because he is a federal employee. The suit alleges negligence, negligent supervision, and intentional infliction of severe emotional distress.

Here is a copy of the complaint.   Hamann v Hamilton & Spear

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Posted in Civil Suit, Negligence, Occupational Safety & Health

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No comments Posted by on April 16, 2013

Scottish Fire Rescue Service Facing Criminal Charges Over LODD

The death of a Scottish firefighter four years ago has led to criminal charges being brought against his department. FF Ewan Williamson of the Lothian and Borders Fire and Rescue Service was killed on July 12, 2009 in Edinburgh while fighting a fire in a bar. During the fire twenty people were rescue from apartments above the bar.

Williamson’s family filed a 700,000 pound sterling ($1 million) damage claim against the department last year, claiming watch commander Tim Foley failed to recognize the warning signs of a “backdraught”, and did not provide Williamson sufficient rehab time between entries. They also allege that ventilating windows in the bar contributed to Williamson’s death.

Williamson is believed to have made an initial entry with his crew into the building and come out to replenish his air supply. It was during his second entry that an evacuation order was given. While everyone else made it out safely, Williamson radioed Foley "I'll be there in a minute, boss, I think I'm stuck in a toilet." He followed that transmission by another reporting: "I'm stuck. I'm stuck." His body later was found in a bathroom.

According to pleadings submitted by Williamson’s family:

  • "On ascending the stairs for the second time, he was confused and suffering from heat exhaustion… he turned towards the toilets instead of towards the entrance of the bar"
  • "Ventilating the fire by smashing windows … made the task of those fighting the fire in the basement more dangerous"
  • "Mr Foley failed to exercise reasonable care for the safety of the deceased and by his failures caused the death of the deceased."

According to news reports Williamson’s family has offered to "freeze" their civil claim if the Crown Office agrees to prosecute “anyone” over his death.

Two formal charges were filed against the fire department on April 9, 2013, one for breaching Section 2 of the Health and Safety at Work Act 1974 and the other for breaching Regulation 3 of the Management of Health and Safety at Work Regulations 1999, by failing to carrying out risk assessments.

The charges have been brought against the Scottish Fire and Rescue Service, who took over the Lothian and Borders Fire and Rescue Service on April 1, 2013.

More on the story, including video coverage.

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Posted in Civil Suit, Criminal Law, International, LODD, Municipal Liability, Negligence, Occupational Safety & Health, Wrongful death

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1 comment Posted by on April 15, 2013

Ohio Widow Appeals Dismissal of Wrongful Death Suit

An Ohio widow who blames the fire department for her husband’s death is appealing the dismissal of her wrongful death lawsuit.

Ronda Cushing claims the Sheffield Lake Fire Department failed to rescue her husband Tony, 62, following a vehicle accident and fire on October 2, 2010. Tony Cushing is believed to have blacked out while driving due to a medical condition. He crashed into a house trapping and injuring several occupants.  The house and the car caught fire and Tony perished before firefighters could extricate him.

Ronda’s lawsuit was dismissed by Lorain County Common Pleas Court last month. In a separate action, she also sued the Cleveland Clinic Foundation, Cleveland Clinic Heath System and Cleveland Clinic Health System Physician Organization for the wrongful death of her husband, claiming they should have restricted his driving privileges due to his known medical conditions.

Here is more on the story.

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

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No comments Posted by on April 4, 2013

Stroke Victim Sues Illinois Fire Department

An Illinois woman has filed suit against the Aurora Fire Department claiming the failure of three paramedics to properly diagnose her stroke caused her to suffer permanent injuries.

Susan Miller filed the suit in Kane County Circuit Court last week. She claims that paramedics assumed she was intoxicated when she was actually having a stroke.

Miller called 911 at 2:00am on May 28, 2012, for numbness in her arm and because she fell and could not get up.  She alleges the medics examined for only "six minutes" during which time she admitted to having consumed alcohol earlier in the day.

The medics left her with instructions to “sleep it off”. Three hours later her husband transported her to an emergency room, but the damage was done. According to the complaint:

  • "As a result in the delay in receiving the proper medical treatment for her stroke, Miller suffered and continues to suffer from various injuries including but not limited to permanent facial paralysis, vision loss and one-sided paralysis. "
  • "The defendant's utter indifferent or conscious disregard for the safety of Miller is evident from defendant's failure to discover a danger through recklessness or carelessness and which could have been discovered with the exercise of ordinary care."

More on the story.

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

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1 comment Posted by on April 1, 2013

Firefighter Claims Injuries Due To Lack of Bail Out System

 

A Kingston, New York firefighter injured in the line of duty last December, has filed a notice of claim stating that his injuries were the result of the department’s failure to provide him with a bail-out system.

Firefighters Thomas Metzger and Brian Renn were injured on December 29, 2012 they bailed out of the second floor window onto a porch roof, and fell to the ground because the roof was icy. FF Metzger claims his injuries were due to the  department's negligence in failing to issue personnel a bail out system.

While the story line is interesting, of even more interest is the reaction of Kingston’s  mayor, Shayne Gallo, upon reading the allegations. Please watch the video below for a little comic relief.

To understand what has transpired legally – all states have adopted laws called tort claims acts. These laws require that before an injured party can sue a governmental entity in tort, they must first file an administrative claim with the governmental agency. Such a claim is NOT a lawsuit – but it is a necessary step before someone can actually file suit.

The purpose of this step is to give the governmental agency the chance to review the allegations and possibly settle the claim before the case goes to court.

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Posted in Civil Suit, Line of Duty, Municipal Liability, Negligence, Occupational Safety & Health, Workers Compensation

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7 comments Posted by on March 24, 2013

Buffalo LODD Suits Settle for $4.1 Million

It appears that a settlement has been reached in two separate lawsuits arising out of the LODDs of two Buffalo firefighters in 2009.

Lt. Charles W. “Chip” McCarthy, 45, and FF Jonathan S. Croom, 34, were killed on August 24, 2009 in the basement of a commercial building. Their families filed wrongful death lawsuits against the city of Buffalo, Mayor Byron W. Brown, former Fire Commissioner Michael S. Lombardo and the owners of the Genesee Street deli-warehouse.

Here are the links to the prior posts about the fire and the suits: October 17, 2010 and November 23, 2010.

The settlement calls for payments to the families of both firefighters totaling $4.1 million and health insurance coverage for FF Croom’s minor children. Lt. McCarthy’s children are adults. The agreement also calls for safety changes in the Buffalo Fire Department.

Attorney Thomas H. Burton, a former police officer who represents the McCarthy family, was quoted by The Buffalo News as saying: “Wrongful-death lawsuits are traditionally about money damages for surviving family members. Here, we went further and insisted on multiple safety procedures for firefighters in the future.”

Safety changes include:

  • Complying with the “two in, two out rule”
  • Assigning an accountability officer at “serious fires”
  • Improved radios, SCBAs and TICs

The settlement does not affect the suits pending against the building owners.

More on the story.

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Posted in Civil Suit, LODD, Municipal Liability, Negligence, Occupational Safety & Health, Wrongful death

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No comments Posted by on March 19, 2013

Widow Alleges Non Line of Duty Asbestos Exposure Killed NY Firefighter

The widow of a retired firefighter has filed a second lawsuit over his death claiming it was related to exposure to asbestos. The kicker… she is claiming that the exposure occurred while he was working for a plumbing company, not as a firefighter.

Joseph Jaworski was a firefighter for 30 years for Amsterdam, New York before retiring in 1976. He also worked for A. Mormile Plumbing & Heating of Amsterdam.  Jaworski died in 2011 of mesothelioma, a type of cancer directly linked to asbestos. He was 83.

Jaworski’s widow, Josephine, filed the first suit back in 2011 naming more than 100 asbestos manufacturers and distributors as defendants. That suit was disposed of prior to trial, although the details are not known. The second suit was filed 2 weeks ago in state Supreme Court naming A. Mormile Plumbing & Heating. The suit alleges wrongful death, negligence and loss of consortium.

Part of the problem is that virtually all asbestos manufacturers and most potential targets of asbestos litigation have either gone out of business or been reorganized through bankruptcy.  In either event, relatively few can be held liable.

According to the Leader-Herald, one of the owners of A. Mormile, James Mormile, told reporters that Jaworski had to have worked for a predecessor of A. Mormile, which was created in 1985. That will likely be the company’s defense

More on the story.

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Posted in Civil Suit, Line of Duty, Negligence, Occupational Safety & Health, Workers Compensation, Wrongful termination

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No comments Posted by on March 11, 2013

Illinois Firefighter Sues Fellow Firefighter for Injuries

An Illinois firefighter injured during a controlled burn has filed a negligence suit against a fellow firefighter and his fire department.

William J. Wirtel was injured on January 29, 2011 during a controlled burn in the Village of Washington Park when a pumper driven by Odell Smith drove away while still connected to a hydrant. Wirtel was struck by the hose.

The complaint alleges: “As a direct result of defendant, Odell Smith’s, operation of The Fire Engine, the hose line became taut and disconnected from the hydrant” and “As a direct result of defendant, Odell Smith’s, operation of The Fire Engine, the hose line struck plaintiff William J. Wirtel.”

The suit was filed in St. Clair County Circuit Court and also names the Washington Park Volunteer Fire Department. Wirtel claims his medical bills alone exceed $200,000, and is seeking an award “in excess of $100,000”.

More on the story.

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Posted in Apparatus, Civil Suit, Municipal Liability, Negligence, Occupational Safety & Health, Volunteers

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1 comment Posted by on February 26, 2013

I’m Suing, You’re Suing, We’re All Suing In Utica

A new lawsuit has been filed in the aftermath of a fire in Utica, New York in 2009 that claimed the lives of four people. By my count, this is at least the sixth suit to come out of the blaze… and I freely admit I may have missed a few.

The fire at 102 James Street on September 20, 2009 killed Bruce Bush, 41; Douglas Crane, 24; Glenard Drake, 44; and Terry Singh, 28.

The first suit was filed by the landlord, Timothy Klotz, who alleged the fire department was negligent in fighting the fire, defamed him, and caused him to have a stroke and PTSD. Klotz is seeking $4.5 million in damages. In the second suit, Klotz  sued his insurance company.

The third suit was filed by the city of Utica against Klotz for the cost of demolishing his building after the fire, an estimated $130,000.

The fourth suit was filed by the families of three of the deceased victims against the city and Klotz in state court. The fifth suit was brought last September by the families of all four deceased victims who filed a federal civil rights suit against the city and Fire Chief Russell Brooks alleging a denial of due process (deliberate indifference).

The sixth and most recent suit was brought in state court by the last remaining victim’s family.  Here is more on the story.

 

I knew I should have taken the New York bar exam…. I wonder if Brad Pinsky has a spare office….

 

Footnote: Unfortunately I could not ascertain which of the families filed the latest suit… Apparently it was not “newsworthy” enough to be included in the news reports… Isn’t it amazing the details some reporters choose to leave out… For the record I spent 2 hours trying to track down that “minor detail” – if even the names of the three families who filed suit previously was listed somewhere – to no avail.

I did find two complaints for the complaint junkies out there:

Bush, et al v. City of Utica, et al Bush v City of Utica

Klotz v. City of Utica, et al Klotz v City of Utiica

Second footnote: the six cases listed above are not numbered in the order in which they were actually filed – they are listed in the order that I added them to my database. Sorry for any confusion. I have no way to determine the order they were filed in.

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Posted in Civil Suit, Constitutional Rights, Municipal Liability, Negligence, Wrongful death, You Can't Make This Stuff Up

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1 comment Posted by on February 11, 2013

Detroit Firefighters Press City in Court

The headline says “Detroit fire union sues city for negligence”, but it’s not a new suit… nor is it a negligence suit. The suit was filed last summer claiming the city was failing to comply with a city charter requirement to provide “adequate” fire protection to all citizens.

The case is in the news because the union won its request to be able to depose city officials. As the saying goes, the wheels of justice grind slowly.

Philadelphia News, Weather and Sports from WTXF FOX 29

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Posted in Civil Suit, Negligence, Politics

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No comments Posted by on February 4, 2013

New Hampshire Legislature Tinkering With Fireman’s Rule

The New Hampshire legislature is considering a law to reverse a ruling last year by the state Supreme Court that limited the application of the Fireman’s Rule.

The Fireman’s Rule is a legal theory that limits the right of firefighters, EMS workers, and police officers to sue property owners and others for negligence for a line of duty injury. There are a number of variations on the Fireman’s Rule theme. Some states limit the application of the rule to negligent property owners, some to negligence that causes the emergency, and some to negligence that occurs prior to firefighters arriving on scene. There are also some states that adopt a blanket policy of prohibiting suits by emergency responders.

In New Hampshire, the Fireman’s Rule as currently enacted into law reads as follows:

RSA 507:8-h  Firefighters, emergency medical technicians (E.M.T.’s), police officers and other public safety officers shall have no cause of action for injuries arising from negligent conduct which created the particular occasion for the officer’s official engagement. However, this section does not affect such officer’s causes of action for unrelated negligent conduct occurring during the officer’s official engagement, or for other negligent conduct . . .

Last year the New Hampshire Supreme Court ruled that a firefighter responding to a house fire who slipped on ice in the homeowner’s driveway could sue for negligence because the negligence which caused the emergency (the fire) was not the negligence which caused the injury (ice in the driveway).

Apparently upset with that distinction, five republican legislators have set about amending the law. Here is the proposed legislative text:

Firefighters, emergency medical technicians (E.M.T.’s), police officers and other public safety officers shall have no cause of action for injuries arising from negligent conduct [which created the particular occasion for the officer’s official engagement] related to the officer’s official duties. However, this section does not affect such officer’s causes of action for [unrelated negligent conduct occurring during the officer’s official engagement, or for] other negligent conduct, or for reckless, wanton, or willful acts of misconduct.

I am not a big fan of the Fireman’s Rule in any of its various forms, but I understand the role it plays in our society. One of the concerns underlying the rule was summed up quite well by David Lang, President of the Professional Firefighters of New Hampshire: “We do not want homeowners to wait and take a second thought before calling in an emergency because they haven’t shoveled a driveway or fixed a broken stair.” It is hard to argue with that reasoning.

However, changing the law may do a whole lot more than let a careless homeowner (and his homeowner’s insurer) off the hook in a slip and fall case. If firefighters are at the scene of a vehicle accident and an inattentive driver plows into them, is that driver’s negligence “related to the officer’s official duties”, or would it be considered “other negligent conduct”? The inattentive driver could argue that the injured firefighters cannot sue because the firefighters were there pursuant to their official duties.

What if a homeowner who knows of a dangerous condition present in a house, calls 911 for a house fire and when the firefighters arrive fails to warn them of a hidden hazard (hole in floor, missing stairs, chemicals, vicious animals, etc.), and a firefighter is thereby injured. It is not at all clear to me based on the proposed language – but what is clear is that in both of these examples (inattentive driver and homeowner without a conscience) an injured firefighter would be able to sue under the law as currently written.

There are a number of states that have gone the other way from New Hampshire and totally abolished the Fireman’s Rule. In such a state a firefighter is just like anyone else who comes upon someone else’s property. Firefighters can sue when the homeowner fails to act as the reasonably prudent person would have acted under the circumstances, breaches a legal duty owed to the firefighter, and causes injury.

The fact that we all can’t list the states that have abolished the Fireman’s Rule off the top of our head is a testament to the fact that folks in those states have not stopped calling 911, nor have firefighters clogged the courthouses with negligence claims.

Here is more on the NH story.

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Posted in Civil Suit, Firemen's Rule, Negligence, Politics

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4 comments Posted by on January 18, 2013

Fatal Fire in Nebraska Prompts Claim Against Fire Department

The estate of a Nebraska man killed in a house fire earlier this year has placed the local fire department on notice that they consider the department to be responsible for the death.

Sal Blanco, 92, of Scottsbluff, died of smoke inhalation in the January 6, 2012 blaze. The fire was determined to have been caused by improperly discarded fireplace ashes. Despite that fact, Blanco’s family alleges that the fire department should be held responsible for his death.

Attorney Maren Chaloupka, representing Blanco’s family and his estate, filed a tort claim with the city on November 26, 2012. In the claim letter, Chaloupka alleged that: “More likely than not, he (Blanco) would not have suffered and died as he did had the Scottsbluff Fire Department met the appropriate standard of care in its response to the fire.”

The filing of the claim is a required preliminary step before a lawsuit can be filed. The city now has six months to evaluate and settle the claim before suit can be filed.

More on the story.

 kotanow.com, KDUH, Scottsbluff, News, Weather and Sports

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

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No comments Posted by on December 11, 2012

Architect Facing Manslaughter for LAFD LODD

Today’s Burning Question: I was responsible for installing an outdoor fireplace at house in Hollywood that was going to be used in a television show and…. well… we took some shortcuts in how we built it. The biggest issue was that it was made out of wood and we kind of didn’t tell the local building officials. So then there was this fire and a firefighter died. Could I get in trouble? After all, the fire was an accident, wasn’t it?

Answer: The fire may have been an accident, but if your conduct in installing the wooden fireplace was reckless, you may find yourself facing involuntary manslaughter charges.

A German architect, Gerhard Becker, is facing involuntary manslaughter charges for his role in installing a wooden outdoor fireplace that sparked a major fire in Hollywood Hills on February 16, 2011 that claimed the life of LA firefighter Glenn Allen.

The LA Times has a great piece on the fire and the case. My point with this posting is to remind everyone about the relevant grounds for manslaughter, and the importance of understanding the mental state of recklessness.

Let’s face it – what we do carries with it the risk of death at every turn. We are not like librarians or school teacher or accountants. People are killed and injured and property is damaged even on a good day at the office for us. When a death occurs, manslaughter is potentially on the table.

Essentially “recklessness” is a criminal mental state that involves acting with conscious disregard for a known and substantial risk of harm. When someone acts with recklessness, and that act is the proximate cause of a death, he/she has committed involuntary manslaughter.

Thus in the LA case, if the prosecutors can convince a jury that Becker consciously disregarded a known and substantial risk of harm by installing the wooden fire place AND that the installation was the proximate cause of FF Allen’s death, he could be convicted of involuntary manslaughter.

More on the story.

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Posted in Burning Question, Criminal Law, LODD, Manslaughter, Negligence, You Can't Make This Stuff Up

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4 comments Posted by on November 30, 2012

Ohio Firefighter Who Lost Both Legs Sues FD and Firefighters

An Ohio firefighter who lost both legs in a tragic on-scene accident has filed suit against a neighboring fire department and three of its firefighters.

Firefighter Josef Tadijanac of the Washington Township Fire Department, was pinned between two tanker-tenders on June 24, 2012 while operating at a fire. At the time Jefferson Township-Bellville Fire Department Tanker 121 was pumping water to Troy Township Fire Department Tanker 145. Tanker 121 suddenly moved forward, pinning Tadijanac.

The suit was filed in Richland County Common Pleas Court in October against Jefferson Township-Bellville Fire Department, Fire Chief Craig Roberts, Firefighter Scott Gerhart, and Firefighter Isaiah Finley.

The suit alleges that Gerhart and Finley were liable because they were operating Tanker 121 at the time. The suit also alleges that neither firefighter was properly trained.

More on the story.

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Posted in Apparatus, Civil Suit, Municipal Liability, Negligence, Occupational Safety & Health, Volunteers

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No comments Posted by on November 26, 2012

Fire Truck Fire Prompts Suit Against Mechanic

A fire that destroyed a fire department tanker (or tender if you are so inclined) in Union, Maine, has prompted a lawsuit by the town against the auto repair shop that had previously repaired the vehicle’s engine.

The tanker, a 1989 Freightliner, was destroyed on January 16, 2012 when it caught fire while enroute to Stone’s Auto/Truck Service LLC.  In late 2011, Stone’s overhauled the vehicle’s engine and performed other repairs that the shop’s owner, David Stone, said would extend the vehicle’s life by 10 years, according to the lawsuit.

About a month after being returned in service, firefighters noticed the truck was making an abnormal sound. Stone was asked to inspect it, but was unable to determine the problem.

On January 16, 2012, Stone asked the department to bring the truck back in and while enroute it caught fire.

The suit was filed yesterday in Knox County Superior Court. More on the story.

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Posted in Apparatus, Civil Suit, Negligence

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6 comments Posted by on November 15, 2012

Florida FD and County EMS Hit with Wrongful Death Suit

The Niceville Fire and Rescue Department along with Okaloosa County Emergency Medical Services have been sued for wrongful death by the estate of a man who died in 2010.

Vincent L. Donathan of Niceville, died on July 6, 2010 after emergency crews who responded to his house decided not to transport him. A police officer who was at the scene and observed the crew’s decisionmaking transported Donathan to the hospital in his cruiser, but apparently Donathan coded and died while enroute.

Besides Niceville Fire and Rescue and Okaloosa County Emergency Medical Services, the suit also names Niceville Fire Chief Tommy Mayville, along with Paramedic Caleb Eiriksson and EMT Peggy Marion of Okaloosa County Emergency Medical Services.

The facts seem a bit complicated, so here are some of the key allegations in the case [quoting from the complaint so I get them as accurate as possible]:

  • That upon arrival at the decedent’s home; Defendants, Mayville, Eiriksson and Marion found Vincent L. Donathan sitting in his bed in his own feces and unable to respond or speak.
  • Defendant, Marion, advised the City of Niceville Police Officer Joseph Boyles that Defendant Eiriksson wanted him to come inside of Vincent L. Donathan’s home to observe Defendant Eiriksson ‘s request as to whether or not decedent wanted to receive treatment or refuse treatment.
  • At the time Police Officer Boyles entered the room, Defendant Eiriksson was asking decedent if he wanted to receive treatment or refuse treatment. Decedent at no time said yes or no.
  • Next, Defendant Eiriksson grabbed his portable radio from his belt and advised his dispatch that he was getting a “partial refusal” and would be back in service shortly. Defendant Eiriksson instructed the decedent’s room mate John Mutchler, that he needed to sign the refusal for treatment since decedent could not sign it.
  • Defendant Fire Chief Mayville who also observed the interaction between the decedent and Defendant Eiriksson informed decedent and his room mate John Mutchler, not to call unless it was a “real emergency”. The Niceville Fire and Rescue under the supervision of Defendant Fire Chief Mayville also failed to render aid or treatment of any kind after Defendant Eiriksson refused to treat decedent.
  • After the lack of treatment given to the decedent by Defendants Eiriksson, Marion, and Mayville, Officer Joseph Boyles determined that the whole situation did not seem right considering the situation that the decedent was in so he contacted his supervisor and subsequently transported the decedent in his police car to Twin Cities Hospital, Niceville, Florida.
  • Upon arrival at Twin Cities Hospital, Niceville, Florida, it was determined that decedent had coded in the back seat of Officer Boyles police car and the emergency personnel at Twin Cities Hospital began performing CPR and life saving measures.
  • In addition to Defendant Mayville’s statements to the decedent and his room mate, Defendant Eiriksson informed the decedent and his room mate in a joking manner, that they would return if it was an emergency and obviously they would return “if he was dead.”

The suit alleges that defendants “Mayville, Eiriksson and Marion” were guilty of negligence, breach of a duty to render aid, and wilful and wanton disregard for human rights and safety. The suit also claims the Okaloosa County Emergency Medical Services and the Niceville Fire and Rescue Department were “negligent in their hiring, training, retention, and supervision of Defendants, Mayville, Eiriksson and Marion”.

Here is a copy of the complaint. Niceville Complaint

More on the story.

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

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7 comments Posted by on November 3, 2012

Hurricane Evacuation Orders and Liability

Today’s burning question: If someone refuses to follow an evacuation order made because a hurricane is approaching, can we be liable if we later refuse to respond to their distress calls in the middle of the storm because they changed their minds?

Answer: Probably not. I would like to say categorically no, but it is possible an unusual case could arise if responders do not act in good faith. Short of bad faith, gross negligence, or recklessness, it is unlikely that responders could be held liable for not responding during a hurricane. Let’s look at the issues in more detail.

The first challenge that a non-evacuee would have in suing responders would be to prove that the responders were somehow negligent for not responding. In other words, the non-evacuees would have to prove the reasonably prudent emergency responders have responded under the circumstances. The non-evacuees are not likely to win there because the reasonably prudent responder would not respond during the middle of a hurricane.

The second challenge the non-evacuees would have to prove is that the emergency responders have a legal duty to respond. Even in the absence of a declared emergency, many jurisdictions adopt what is known as the public duty doctrine which holds that public entities do not owe a legal duty to the general public, be it to respond to fires, emergencies, or deliver other types of governmental services. There are of course exceptions (most notably when a “special duty” is created – but that would not be the case here) and not all states adopt the public duty doctrine.

Even if the non-evacuees got by those hurtles, there would be the challenge of sovereign immunity and statutory immunity protection that many emergency responders have.

But let’s assume that a non-evacuee got past all of those liability hurtles. Is there any other protection that emergency responders have to protect them in such a situation?

As a matter of fact there is, and it would be the proverbial “ace in the hole”. States have adopted emergency management acts that give state and local officials extra powers in times of emergencies. These acts usually go into effect when the governor declares a state of emergency. Among the things that happen when a governor declares a state of emergency is that immunity protection is applied in a blanket manner to all responders.

Take a look at Rhode Island’s law:

RIGL  § 30-15-15  Immunity from liability – (a) All functions under this chapter and all other activities relating to disaster response are hereby declared to be governmental functions. Neither the state nor any political subdivision thereof nor other agencies of the state or political subdivision thereof, nor, except in cases in willful misconduct, gross negligence, or bad faith, any disaster response worker complying with or reasonably attempting to comply with this chapter, or any order, rule, or regulation promulgated pursuant to the provisions of this chapter, or pursuant to any ordinance relating to precautionary measures enacted by any political subdivision of the state, shall be liable for the death of or injury to persons, or for damage to property, as a result of disaster response activity.

Immunity protection under such emergency conditions makes alot of sense. Decisions have to be made in disaster situations: who will be saved, who cannot be saved, who will get critical limited resources and who will not. Laws such as RIGL  § 30-15-15  provide a clear level of liability protection for emergency managers and responders alike to make those necessary decisions without fear of liability.

Supplementing state emergency management laws are another set of laws enacted by all fifty states called the Emergency Management Assistance Compact or EMAC. EMAC is essentially a state to state mutual aid agreement for disasters. EMAC also provides for immunity protection for responders and state and local officials:

§ 30-15.9-6  Liability. – officers or employees of a party state rendering aid in another state pursuant to this compact shall be considered agents of the requesting state for tort liability and immunity purposes; and no party state or its officers or employees rendering aid in another state pursuant to this compact shall be liable on account of any act or omission in good faith on the part of such forces while so engaged or on account of the maintenance or use of any equipment or supplies in connection therewith. Good faith in this article shall not include willful misconduct, gross negligence or recklessness.

When you consider the liability protection afforded to state and local officials in a declared emergency, rest assured you are on solid legal ground to tell folks who are contemplating staying in place despite an evacuation order: You need to leave now and if you choose not to, we will not come back in the middle of the storm if you change your mind.

For the legal eagles out there, there are a few other defenses….

  1. Lack of proximate cause (the proximate cause for their injuries was the storm and/or their decision not to evacuate)
  2. Contributory negligence
  3. Assumption of the risk

Can you think of any others?

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Posted in Burning Question, Duty to Act, Immunity, Municipal Liability, Negligence

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4 comments Posted by on October 29, 2012

Wrongful Death Suit Against Firefighter Settled for $1.57 Million

A wrongful death lawsuit filed against an Ohio firefighter and fire district has been settled for $1.57 million.

Firefighter Timothy Johnson, now 43, of the Portage Fire District, was responding to a mutual aid structure fire on July 16, 2010 when his personally owned vehicle collided with a car driven by Olivia Duty. Duty’s boyfriend, Ian Huffman, 24, was killed in the crash. Police estimated Johnson’s speed at between 96-98 miles per hour just before the collision.

Johnson was charged with aggravated vehicular homicide  and aggravated vehicular assault, and ended up pleading guilty to one count negligent vehicular homicide and attempted negligent homicide. He was sentenced to 9 months in prison and his driver’s license was suspended for three years.

Parents of Ian Huffman,  John and Maureen Huffman,  and Olivia Duty,  filed the wrongful-death and personal-injury lawsuit against Johnson and the Portage Fire District. It was settled for $1.57 million. Huffman’s parents said that the compensation would in no way make up for the loss of their child but would help them on the road toward closure.

They also said they hoped the lawsuit would send a message to other firefighters about the need to operate their vehicles with due regard for the safety of the public. The ToledoBlade.com quoted Mr. Huffman as saying: “any time a lawsuit like this is brought, it helps educate the firemen and hopefully they learn to be more careful in the future…They have an obligation to operate their vehicles with due regard for the safety of the public. It does not give them the right to speed, especially at insanely excessive speeds.”

More on the story.

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Posted in Civil Suit, Criminal Law, Municipal Liability, Negligence, Volunteers, Wrongful death

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3 comments Posted by on October 17, 2012

Albuquerque Firefighter Facing More Allegations

An Albuquerque firefighter with a history of disciplinary problems is now facing new allegations that he talked patients who needed to go to the hospital, out of going.

Brad Tate, a former UNM football player, is accused of telling patients with serious medical conditions that they did not need medical attention. Some of those patients later had to be rushed to the ER.

Tate, who’s history includes assault allegations, a bar brawl, and allegations of using inappropriate sexual language to faculty at an elementary school while on a run, is at the center of a wrongful death suit by the family of a man killed in 2009 in an apparatus accident.

Firefighter accused of killing, fighting

 

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Posted in Civil Suit, Disciplinary Action, EMS, Municipal Liability, Negligence, You Can't Make This Stuff Up

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No comments Posted by on October 8, 2012