Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question: My fire department does a very good job of adhering to NFPA 1851 Standard on Selection, Care, and Maintenance of Protective Ensembles for Structural Fire Fighting and Proximity Fire Fighting when it comes to turnout coats and pants. Nobody wears anything past 10 years of the date of manufacture, and everything is cleaned and inspected at least annually. However, something we’ve really never paid attention to is helmets and boots. Reading through your various blog notes, I hear your message loud and clear (and I agree) – our focus must be on avoiding injury first, and liability second. However, there is still the issue of liability. We are contemplating adopting a strict 10-year rule for boots and helmets. I have been asked a salient question: Is this liability purely theoretical, or are there documented cases where organizations have been found liable strictly on the basis of the gear in use being out of compliance with NFPA 1851?
Answer: I am not aware of any cases where a fire department has been held liable for injuries to a member due to a violation of NFPA 1851’s 10-year service life requirement. That goes for allegations about exceeding the 10-year limit on bunker coats and pants as well as helmets and boots. This should not be surprising because neither courts nor a juries issue rulings that say “we are holding this fire department liable solely because it allowed a firefighter to use equipment that was beyond ten years old.”
Of even more interest, I am not aware of any suits where a violation of the 10-year requirement was even an allegation. There may be some suits out there…. But I have not seen any.
The reality is that a violation the 10-year requirement is likely to be accompanied by numerous other allegations of negligence (failure to inspect, negligent inspection, negligent repairs, negligent training of inspectors, and of course negligent training of the firefighter him/herself that led to them getting themselves injured in the first place), any/all of which may be easier to prove.
It would be hard (if not impossible) to attribute a specific injury solely to a violation of the 10-year requirement. I struggle to imagine a fact pattern where a firefighter is injured at a structure fire and the only thing the fire department did wrong was violate the 10-year requirement. On one level – violating the 10-year requirement could be viewed as one more nail in the proverbial coffin of the fire department. On another level, a sharp defense attorney may be able to exclude any discussion of the 10-year requirement at trial without some showing of proximate cause. The injured firefighter’s attorney will likely struggle to even establish “but-for” causation between the firefighter’s injuries and the 10-year violation… What facts would support a showing that the injury could not have occurred BUT FOR the violation of the 10-year requirement. Without proximate cause there can be no liability for negligence.
Then there are the standard defenses fire departments will have when sued in tort by their employees: sovereign immunity, statutory immunity, and workers’ comp exclusivity…
That is not to say that NFPA 1851 should be ignored simply because the risk of liability is remote. Violations of NFPA 1851 can be the basis for an OSHA citation in states with a state OSHA program. Also as you mentioned, I keep admonishing folks not to use liability as a barometer for making safety decisions. It only took one iceberg to sink the Titanic. All it takes is one case for the 10-year requirement to suddenly become a big deal liability-wise. However, to date there have not been any such cases and the prospect of liability remains purely theoretical.
