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Legal Challenge by Palo Alto Committee Results In Change To “Misleading” Firefighter Staffing Ballot Initiative

At a time when local officials have made, and continue to make, drastic cuts in fire departments in an effort to deal with the financial crisis, Palo Alto Firefighters Local 1319 found a novel way to ensure that the public (not politicians) had the final say in what fire service related  cuts would be made. They supported a ballot measure that if passed would prohibit the city council of Palo Alto from reducing the fire department's staff below 2009-10 levels or closing stations without first holding public hearings and an election.

Supporters of the measure, designed as “Measure R”, obtained the necessary signatures to ensure the matter was on the November 2, 2010 ballot, over the objections of most Palo Alto politicians.

However, last week the former Mayor of Palo Alto filed a lawsuit objecting to certain language in the measure as "false and misleading". Dena Mossar, who is chairperson of a committee opposed to Measure R, alleged that the phrase “Such a decision should not be made solely by one or two individuals on the city council or in the city administration", might mislead voters to support the measure. She claimed that only a majority of the city council could vote to reduce services.

Last Thursday, August 26, 2010, Santa Clara County Superior Court Judge Kevin J. Murphy sided with Mossar, and ordered the offending language changed to "Such a decision should not be made solely by the city council."

Ironically Mossar’s committee is called “Safe Palo Alto”….. and is made up of politicians….. I suppose they should be able to spot false and misleading language from a mile away.  Seriously… “SAFE PALO ALTO”.

More on the story.

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Posted in Civil Suit, Politics, Staffing

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No comments Posted by on August 30, 2010

Four more fire fighters file lawsuits in Charleston Sofa Super Store fire

As the third anniversary of Charleston Sofa Super Store fire approaches, four additional firefighters have joined the growing ranks of litigants suing the Sofa Super Store, its owners and other associated companies. The June 18, 2007 fire killed 9 Charleston firefighters, making it one of the worst LODD incidents in US after the World Trade Center attack which killed 343 firefighters.

In addition to wrongful death lawsuits filed by the families of the deceased firefighters, four firefighters (Edward Clinton Jones, Gary Taylor, Matthew Roberts and Eric Croft.) filed suits in January,  2010 against the owners accusing the businesses of negligence and reckless conduct.

On June 1, 2010, four more fire fighters (Captains Kevin Storo, Patrick Sandford, Thomas Buell and firefighter Jerry Winn) and their wives filed four separate lawsuits in Charleston County Court of Common Pleas, accusing the businesses of negligence and reckless conduct.  The suits also named the manufacturers of the roofing products and furniture sold by the store as defendants under a failure to warn theory for not warning about the high flammability of their products.

The firefighters allege that they were near the building when the roof collapsed, participated in rescue and recovery efforts, and experienced extreme mental and emotional distress leading to post traumatic stress syndrome, anxiety, depression, flashbacks and physical symptoms. The wives of Storo, Buell and Winn allege that defendant’s conduct “caused them to be deprived of care, comfort and assistance from their husbands…”

All the four firefighters left the fire department taking disability retirements after the incident.

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Posted in Civil Suit

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No comments Posted by on June 8, 2010

Halifax Fire Facing 18 Suits & $10 Million in Claims for 2009 Wildland Fire

A Canadian fire department is facing 18 separate lawsuits seeking a total of $10 million in damages arising out of a wildland fire that occurred last spring. Halifax Regional Municipality and the Halifax Regional Fire & Emergency Service were sued in the Nova Scotia Supreme Court on April 28, 2010.

The suits were filed by insurance companies seeking to recoup claims paid to homeowners after a wildland fire on April 29-30, 2009 drove 1,200 people from their homes, destroying eight homes and damaging 10 others homes. The suits allege negligence in fighting the fire.

The plaintiffs claim that the fire department left hotspots unattended during which time the winds picked up spreading the fire. They also allege that effective command was not established, requests for resources were delayed, and air support was not requested soon enough.

Halifax fire spokesman Dave Meldrum is quoted as saying "We're concerned with all the allegations. We think that they're wrong, and they're incorrect, and we will defend them in court… That day was a tragic circumstance. Our firefighters put themselves on the line, they worked long hours, they trained hard hours, to protect life and to protect property."

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Posted in Civil Suit, Municipal Liability, Negligence, Wildland

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4 comments Posted by on May 2, 2010

Dekalb County Fire Rescue Sued for Fire Death

In what should be of no surprise to anyone, the family of Ann Bartlett filed suit yesterday against Dekalb County Fire Rescue. Bartlett died on January 24, 2010 when the crews that were dispatched to her home for a reported fire, failed to find any fire or smoke in the area, and left the scene without checking the house – only to be called back hours later when the house was well involved.

Named in the suit were Dekalb County Fire Rescue, William J. Greene, Lesley Clark, Tony Motes, Sell Caldwell III, and Bennie Paige. Greene and Motes were acting officers, Caldwell was a captain, and Clark was a battalion chief, all of whom were dispatched on the initial alarm. Paige was the acting shift commander that night. All five named defendants were terminated by the fire department in the aftermath of the fire.

The suit alleges negligence in the performance of a ministerial act; willful negligence and malfeasance; and abandonment by the fire crews. It seeks punitive damages because the conduct constituted “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise a presumption of conscious indifference to the consequences”.

The family also asked the court to order an independent third party to evaluate and review the fire department’s policies and procedures to ensure that such an event does not occur again.

Here is a copy of the complaint. Download DekalbComplaint

One interesting aspect of this case involves the advisability of being forthcoming when you know you have made a mistake. Old school lawyers shudder at the thought of admitting liability, instead preferring to deny, stall, delay and force a plaintiff to prove every aspect of their case. The more modern approach recognizes that in many cases it is better to admit wrongdoing up front. The modern approach was taken by Dekalb officials who from nearly the beginning accepted responsibility for the blunders that led to Mrs. Bartlett’s death. Only time will tell if “honesty is the best policy” is truly the best policy when it comes to liability.

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

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5 comments Posted by on May 1, 2010

Atlantic City Fire and Police Chiefs Join Forces To Sue Mayor and Council

Over the years, there have been a number of fire service lawsuits that have left me shaking my head, but a recent suit filed by the fire chief and the police chief of Atlantic City, New Jersey AGAINST the city, the mayor and the city council now stands head and shoulders above the others.

The suit involves the creation of a public safety director to oversee the Atlantic City police and fire departments, something that (according to the plaintiffs) is prohibited by state and local law, and is in clear violation of the employment contracts of both Police Chief John J. Mooney III and Fire Chief Dennis Brooks.

There are two aspects to the case that are intriguing.  First, why would politicians ignore what appears to be clear contractual language and clear statutory provisions to accomplish what ever greater good they believe a public safety director will offer? Is it arrogance? Do they believe they are above the law? Do circumstances justify them ignoring the law, rather than advocating a change in the law?

As it turns out, the contractual provisions that prohibit the appointment of a public safety director in Atlantic City were executed in November, 2008 by outgoing Mayor Scott Evans who signed new contracts for Mooney and Brooks. The newly elected mayor, Lorenzo Langford had promised major changes during his campaign that included establishing a public safety director. Accordingly, Atlantic City officials consider the contractual provisions signed in November, 2008 to be null and void. No word on their interpretation of the statutes that Mooney and Brooks claim prohibit a public safety director.

Second, how can a fire chief and a police chief possibly expect to be able to have an ongoing working relationship with the Mayor and city council after having sued them? The only explanation that makes sense is that Mooney and Brooks believe that the relationship is all but over, and only the law suit will save their jobs.

The new public safety director’s position was formally created on February 10, 2010, and the new director (former Jersey City Police Lieutenant Christine M. Petersen) was appointed on March 1, 2010. The suit was filed on March 29, 2010.

For the legal eagles, here is a copy of the 27 page complaint filed in New Jersey Superior Court by the chiefs. Download Atlantic City Complaint   This one may take a while to sort out.

More on the story.

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Posted in Civil Suit

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3 comments Posted by on April 27, 2010

Federal Signal Found Liable for Q-Siren Related Hearing Loss

A Pennsylvania jury has awarded a Philadelphia firefighter $100,000 in damages against Federal Signal Corp. for hearing loss associated with the venerable Federal Q-Sirens. Firefighter Edward Smyl alleged that the Q-Sirens were negligently designed, unreasonably dangerous, and emited such an intense noise that they permanently damaged his hearing. Smyl had been a firefighter in Philadelphia from 1975 to 2007.

The verdict was rendered on Tuesday, March 2, 2010 after four days of deliberation. The jury concluded that the Q-Sirens were not defectively designed, but that Federal Signal was nonetheless liable to Smyl  under a negligence theory. On March 4, 2010 Federal Signal announced that it will appeal the jury’s verdict.

Smyl’s suit was not the first filed by firefighters against Federal Signal alleging hearing loss. In fact, according to the web site AboutLawsuits.com, there are over 600 separate lawsuits are pending against Federal Signal in Pennsylvania alone, a claim I cannot independently verify. However, there are several other well known cases that have been filed against Federal Signal over the past few years, including cases in New York,  Illinois, Maryland, New Jersey and Missouri.

A New York court dismissed a similar products liability suit brought by four New York City Firefighters against Federal Signal for hearing loss, and the dismissal was affirmed by an appeals court in June 2009.  Federal Signal was granted a summary judgment in January, 2010, in a suit brought by another Philadelphia firefighter, and obtained a stipulated entry of summary judgment in November, 2009 in a suit brought by two other Philadelphia firefighters. 

A 2008 Illinois case involving 27 firefighter plaintiffs alleging hearing loss resulted in a defense verdict for Federal Signal. A second Illinois case involved the consolidated claims of nine firefighters, and resulted in a jury verdict for the firefighters in February, 2009. Federal Signal is appealing that verdict.  The hearing loss claims of some 74 other Illinois firefighter plaintiffs were dismissed in the interim.

In regards to the Smyl verdict, Jennifer Sherman, Senior Vice President, Human Resources, General Counsel and Secretary, is quoted in the press as having said  "We are very pleased that the jury rejected the claim that Federal Signal's sirens were defectively designed.  This verdict is consistent with the many successes Federal Signal has had over the past several years in defending the Company's life-saving products.  That said, we are disappointed that the jury proceeded to award damages to the plaintiff.  We believe that the damage award cannot stand in light of the jury's verdict that our sirens are not defective, and we will seek to overturn that verdict."

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Posted in Civil Suit, Product Liability

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4 comments Posted by on March 7, 2010

Widow Sues Shrevesport For LODD – Fall From Ladder Truck

The widow of a Shreveport, Louisiana battalion chief killed after a fall from a ladder truck has filed suit against the city for negligence in connection with the death. Traci Adams filed suit on February 19, 2010 for the December 12, 2009 death of Chief Tommy Adams. The accident occurred on February 21, 2009 at the conclusion of a Mardi Gras parade.

The suit alleges that the members of the department were negligent in administering to Chief Adams,  including

  • not properly clearing his airway
  • not giving him supplemental oxygen.
  • not taking proper spinal precautions
  • transporting to an inappropriate medical facility

Understandable the department is hurt by the allegations contained in the suit and the chief has vowed to vigorously defend the members’ actions. In the months after the accident, firefighters had held numerous fundraisers to help offset the expenses for Mrs. Adams and her two children. Firefighter’s even helped to remodel the family home. The Shrevesport Firefighters Association president Stacy Birdwell publically responded to the lawsuit expressing his support for the members who attended to Chief Adams, and commending the way the department pulled together for the family in the days and weeks following the accident.

Mrs. Adams, an emergency room nurse, was present at the scene when the incident occurred, and  personally witnessed the conduct that she alleges was negligent. Nevertheless, even with her personal testimony, suits such as this are very difficult to win for a number of reasons.

First of all, workers compensation laws usually restrict the rights of an injured or deceased employee or his/her family members to sue the employer for negligence through a legal principle commonly known as exclusivity. The same liability protection extends to the negligence of co-workers. Secondly, in many jurisdictions there remains some vestiges of sovereign immunity that offers fire departments some degree of liability protection. Finally many states have statutory immunity for firefighters and emergency workers for negligence committed in the line of duty.

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Posted in Civil Suit

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2 comments Posted by on March 4, 2010

Tragedy in Houston Ends with Modest Settlement

On March 30, 2009, Leigh Boone was standing at a street corner with her bicycle, when a Houston Fire Department ladder truck responding to an alarm collided with an engine company, and within a split second rolled on top of her. She died from her injuries two weeks later on April 11, 2009. She was 29 years old.

Boone’s estate filed suit against the Houston Fire Department for wrong death, and in particular cited the competitive manner in which fire stations rush to incident scenes as a contributing factor in the accident. A total of 11 people were injured in the crash, 9 of them firefighters.

The investigation revealed that the ladder truck had the red light, and the engine had the green light. However, additional factors appear to have been involved that tend make the color of the light less of an issue. Consider one report that noted the just prior to the crash the ladder was traveling at 18 mph, 12 mph below the speed limit, while the engine was traveling at 52 mph, 22 mph over the speed limit. This report and others cite the possible operation of the Opticom device by the engine company driver as a factor by changing the traffic light to give the engine the green light.

While the cause of the accident will remain of interest to firefighters and safety officers, the bottom line is that on January 27, 2010 the City of Houston settled the lawsuit in a somewhat responsible way by agreeing to pay $225,000 to Boone’s estate. The statutory damage cap limited the total damages to $250,000, so the city was able to save $25,000. Maybe its just me, but I have this image of some young city attorney proudly reporting to the city bean-counters that he/she saved the city $25,000… at the expense of Leigh Boone’s family.

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Posted in Apparatus, Civil Suit, Municipal Liability, Negligence

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3 comments Posted by on February 7, 2010

$40 Million Paid to Family of Deceased St. Louis Firefighter

Associated Press is reporting that the family of deceased St. Louis firefighter Derek Martin has finally received the money they were awarded by a jury in 2007, bringing to a close their suit against Survivair Respirators and its parent company, Bacou-Dalloz. Martin was killed on May 3, 2002 at a fire that also claimed the life of firefighter Robert Morrison.

The jury’s original verdict was $27 million, but was appealed to the Missouri Court of Appeals. After Survivair lost the appeal, the accrued interest brought to grand total to $40.4  million.

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Posted in Civil Suit, Product Liability

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No comments Posted by on February 4, 2010

The Mess in La Marque

Law school professors are notorious for coming up with strange fact patterns to use on final exams. However, I find that real life in the fire service can top even the best hypothetic questions a law school professor can dream up.

Take the law suit filed by the La Marque (Texas) Firefighters union last week against the city of La Marque, and Mayor Pro Tem Keith Bell. Sounds pretty typical so far, right? There aren’t many places I am aware of that a suit between the firefighters and the city could be considered unusual. The interesting thing is that Mayor Pro Tem Bell is a firefighter in Galveston. One would think that, in and of itself, would be a good thing, right? I mean, isn’t it every firefighter’s dream to have a politician who “get’s it”, who knows what it’s like to be a firefighter, slogging it out day after day in the danger zone?

To understand the story – and get to the rest of the crazy law school exam worthy fact pattern – we have to go back to last summer (August 10th to be exact), when Bell was supposed to be at work in Galveston, but instead got someone to substitute for him so he could attend a contentious council meeting in La Marque. As the newspaper reported it, Bell was quite vocal at the meeting about a number of fire department issues including the high cost of a new apparatus,  the number of firefighters off on injury leave, and the need for “a review of the fire department budget to make sure spending was in control.” The newspaper even quoted him as saying: “Those guys are trying to rob the city of La Marque.” So much for a brother union member.  Oh yes, one more detail, Bell was wearing his Galveston uniform shirt at the time.

(more…)

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Posted in Civil Suit, Disciplinary Action, Discrimination, Labor Law, Municipal Liability

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2 comments Posted by on January 25, 2010

Four More Suits in Charleston, SC

Four more suits have been filed in the aftermath of the Sofa Super Store fire in Charleston, SC on behalf of four Charleston firefighters who fought the June 18, 2007 blaze. The firefighters claim that they have experienced post traumatic stress, depression, and other ailments as a direct result of the negligence of the Sofa Super Store, Inc., the Goldstein Family Limited Partnership, Dupont Performance Elastomers, Feltmann & Associates Inc., Conklin Company, Robinson & Robinson Furniture, Motion-Eaze Recliners, Overnight Sofa Corp., Primo International, Miller Concrete, the Pembrook Chair Corp., and Albany Industries.

The four lawsuits are in addition to at least six prior suits filed against the defendants by firefighters or their estates/families as a result of the Sofa Super Store fire. The four plaintiffs, Matthew Roberts, Gary Taylor, Eric Croft, and Edward Jones III,  are seeking punitive damages in addition to compensation for their actual damages. The cases were filed in the Court of Common Pleas for Charleston County.

The complaint alleges that the defendants were responsible for illegal modifications to the building, the use and installation of highly flammable roofing and ceiling components, and the presence of "unreasonably dangerous and highly flammable" materials in the building.

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Posted in Civil Suit

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2 comments Posted by on January 21, 2010

Curlew, Washington Fatal Fire Sparks Lawsuit

Here is an interesting case arising out of a fatal fire in Curlew, Washington.



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Posted in Civil Suit, Negligence

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No comments Posted by on January 19, 2010