What Is Our Biggest Liability?

The connection between the fire service and the law has always fascinated me. There never seems to be a shortage of lawsuits involving fire departments, firefighters, fire chiefs and firefighter unions. However, while fire service litigation abounds, there has been virtually no effort made to categorize and analyze the types of suits and resulting liabilities facing fire departments.

What is the biggest liability exposure facing the fire service? What are the most common things that fire departments are being sued for? Is it the same state to state, or region to region? Do volunteer fire departments face the same types of suits as combination or career departments? Have litigation trends changed over the years?

These unanswered questions led me to begin the creation of a fire service litigation database. The purpose of collecting this information is to gain a better understanding of the legal challenges facing the fire service in a measurable way. Collecting this information also explained why no one else has done it: it is an incredible amount of work!

Fire Service Litigation Database

The database is intended to gather information on legal proceedings involving fire and emergency services organizations. Included are virtually all types of legal proceedings involving fire departments, firefighters, paramedics and EMS providers that could be identified and verified through publicly available sources such as newspapers, wire services and court records. Excluded are proceedings related to fires that do not involve fire departments. For example, the database does not include fire-related suits by homeowners against insurance companies or suits by building owners against the manufacturers of equipment that cause a fire. Similarly, criminal proceedings against firefighters for off-duty behavior unrelated to fire department activities were excluded. However, where firefighters were disciplined for off-duty behavior, the disciplinary charge was included as a legal proceeding.

Once a proceeding was located, it was painstakingly researched, and pertinent information entered into the database. Cases were updated as additional information about the proceeding became available.

While lawyers tend to focus on written decisions and verdicts, and insurance companies often focus on settlements, the database tracks lawsuits filed and follows them to conclusion to the greatest extent possible. While the database can track jury verdicts, written decisions, and settlements as needed, our major focus is on the fact that a legal proceeding has been initiated.

Limitations

The results should be viewed with the understanding that the statistics have limitations. The cases used in the database were not selected randomly or through scientifically validated survey techniques. Rather, cases were found through web searches and publicly available sources. In addition, the information about cases may be incomplete, particularly in regard to cases that are settled confidentially or that lose the interest of the media. Case information was not independently corroborated with the courts, except where published decisions were involved.

Enough about how we got the information. Let's get to the results.

Results

A total of 1,051 cases were in the database at the time of analysis, broken down into three categories: administrative, criminal and civil. Administrative cases are those proceedings that are not brought in a judicial forum, including disciplinary actions, state Occupational Safety and Health Administration (OSHA) proceedings, contractual grievances, unfair labor practice complaints and other non-judicial proceedings. Criminal cases are those in which a firefighter is charged criminally for job-related conduct. All other proceedings are categorized as civil.

There were 383 administrative cases, 504 civil cases, and 164 criminal cases. The largest number of cases, 647 (61.6%), involved career fire departments, while 141 (13.4%) involved combination departments, 218 (20.7%) involved volunteer departments and 43 (4%) involved non-fire EMS organizations, state fire academies, and other non-fire emergency organizations.

Civil Cases

There were 504 civil cases in the database, which break down as follows: 370 cases (72%) involved career departments, 55 (11%) involved combination departments, 64 (13%) involved volunteer departments and 18 (4%) involve other organizations, such as EMS agencies.

The breakdown of civil lawsuits between federal and state courts shows that 213 cases (43.3%) were filed in federal court while 282 (55.9%) were filed in state court. In the vast majority of suits, the fire department or municipality was the defendant. In 415 of 504 cases (82.3%), the fire department was the defendant, while in just 27 cases (5.4%) the fire department brought the suit.

In 290 of the cases (57.5%), the suit was brought by a firefighter, or the family of a deceased firefighter. In 247 cases (49% of all civil cases and 85.2% of the suits filed by firefighters), the fire department was a defendant. Firefighter unions brought 45 suits, or 8.9% of the total, and in turn were sued 19 times (3.8%).

In breaking down the civil suits by subject, 265 cases (52.6%) involved an employment-related issue, 208 alleged a violation of constitutional rights under Ā§1983 (41.3%), 170 (33.7%) were tort cases (negligence, battery, defamation, etc), 73 involved wrongful death (14.5%), 44 cases involved firefighter fatalities (8.7%), 35 involved collective bargaining (6.9%), 34 alleged violation of First Amendment rights (6.7%), 24 were breach of contract (4.7%), 19 (2.4%) challenged a governmental action by alleging it was ultra vires (i.e., that government did not have the authority to do what it did), 12 involved ethics violations (2.3%), and eight (1.6%) were wage and hour cases.

A challenge to interpreting this data is that many cases include multiple allegations involving different types of law. For example, a case may allege racial discrimination, age discrimination, due process violations and state law tort violations such as defamation or intentional infliction of severe emotional distress. For that reason, the sum total of the various civil suit categories exceeds the total number of 504 cases.

Employment Cases

More than 50% of the civil cases in the database are employment related. Of the 265 employment-related cases, 77 (29.1%) involve an allegation of race discrimination, including 31 (40.3%) of which that are reverse race discrimination cases. Thus, roughly two of every five race discrimination cases are brought by white firefighters. Forty-eight civil suits allege sexual harassment and another 22 allege sexual discrimination for a total of 68 gender-related claims, or 25.7% of the total employment-related claims. Four of the 68 gender cases are reverse discrimination cases filed by men.

Disability discrimination was alleged in 10 cases, representing 3.8% of the employment relations suits. While the numbers are too small to draw definitive conclusions, there are three suits involving firefighters or candidates with seizure disorders, two involving vision, and four involving alcohol and/or drug addictions.

Incidentally, none of the alcohol and drug cases were successful in asserting disability discrimination. Coincidentally, there are 10 age discrimination cases and 10 cases alleging discrimination based on union affiliation. Four cases allege religious discrimination.

Among the 265 employment-related cases, 78 (29.4%) allege wrongful termination, 40 (15.1%) allege that the employee had been retaliated against for making a previous complaint, 34 (12.8%) allege a violation of the person's First Amendment rights and 33 (12.5%) include whistle-blower allegations. A whistle-blower is a person who is unlawfully discriminated against or harassed after having reported a violation of law or otherwise made a complaint about an improper practice.

While one might assume employment-related cases are only a concern to career departments, combination departments account for 31 employment cases (11.7%) and volunteer departments account for 15 (5.7%) cases. The volunteer cases llege due-process violations, wrongful termination from the volunteer organization, violations of First Amendment rights to free speech and age discrimination.

Tort Actions

Of the 504 civil cases, 170 are negligence or tort-related suits. Negligence was by far the most common tort allegation accounting for 137 of the 170 tort cases (80.6%), followed by gross negligence, recklessness, intentional infliction of severe emotional distress, product liability suits, battery, defamation, false imprisonment and/or false arrest and abandonment.

In 131 cases (77.1%), an allegation of negligence or tortuous behavior was made against a fire department and/or a firefighter. In 44 cases, a firefighter sued a fire department for one of the above torts, with negligence being the most common (33 of 44 cases, or 75%). In 34 cases, a firefighter sued a third party in tort, representing 20% of the total of fire service-related tort suits.

Incident-Related Suits

Of the 170 tort cases, 121 (71.2%) are incident related. Fifty-seven cases arose from structure fires, representing 47% of the incident-related suits, and 11% of the total number of civil suits. Thirty cases (24.8%) arose from EMS incidents, and 22 involved apparatus accidents (18.2%). The remaining cases involved hazardous materials incidents (five cases), technical rescue incidents (five cases), dispatching (three cases), fire prevention problems (three cases), and helicopter crashes that killed personnel (three cases).

Of the 57 suits that arose out of structure fires, the fire department was named as a defendant 36 times (63.2%). Twenty-one of the 57 suits (36.8%) were filed by building owners or others dissatisfied with the firefighting operation. Firefighters, or the families of deceased firefighters, filed 35 of the 57 suits (61.4%), 24 of which made claims against the building owners and other responsible parties. Among the responsible parties sued by firefighters were the manufacturers of self-contained breathing apparatus (SCBA), personal protective equipment (PPE), portable radios, apparatus and a boiler component that started a fire. Fifteen of the 35 suits (42.9%) brought by firefighters included claims against the fire department.

Criminal Charges

The criminal cases included in the database are for on-duty or job-related charges brought against firefighters. The chart on this page shows the breakdown of the 164 duty-related criminal cases, including career (39), combination (22), volunteer (89) and non-fire EMS (14) personnel.

The most common criminal charge filed against firefighters was theft, accounting for 68, or 41.5%, of the criminal cases. The theft charges included larceny, embezzlement, forgery and fraud. Thirty-eight of the 68 cases (55.9%) involved volunteer firefighters and 33 of those cases involved the theft of funds from the volunteer fire organization. Nine of the 68 theft cases involved the theft of prescription drugs from EMS vehicles. After theft, the next most common job-related criminal offense was arson. There were 46 cases of arson involving 64 individual defendants. Thirty-eight cases (82.6%) involved volunteer firefighters, with nine of those cases involving conspiracies among multiple volunteer firefighter-defendants. Each of the eight career firefighter arson cases involved a single firefighter acting alone. The remaining criminal proceedings include 11 cases of manslaughter, nine of sexual assault, six of vehicular homicide, five of assault and/or battery, four of reckless driving, four of reporting a false alarm and three of murder. Two murder cases arose from arson by firefighters and the other case involved a paramedic who killed a pedestrian when driving an ambulance while on drugs.

Administrative Cases

There were 383 administrative cases in the database, of which 325 (84.9%) were disciplinary actions against firefighters. The reason for the high percentage of disciplinary cases probably has to do with the media coverage given to firefighter misconduct cases. Some examples:

  • Sexual assault allegations against on-duty firefighters who took their apparatus to a porn-star celebrity ball and participated in the festivities
  • On-duty drinking in a firehouse with full knowledge of station officers that led to a felony assault by one firefighter who struck and critically injured another firefighter with a metal chair
  • A company officer took an in-service fire apparatus to a youth sports event and remained at the event when the apparatus was dispatched to an alarm
  • A chief officer and other personnel charged with theft of a radar detector from a wrecked automobile at an accident they responded to
  • Four firefighters (three men and a woman) accused of having consensual sex on-duty over an extended period

Many other types of administrative actions (collective bargaining arbitrations, grievances, state OSHA citations) do not garner the same media attention and thus are less likely to be located for inclusion in the database.

In analyzing the 325 disciplinary cases, 203 (62.5%) involved on-duty conduct, while 122 (37.5%) involved off-duty conduct. In 245 of the cases (75.4%), the firefighter was initially suspended or placed on a leave of absence. In 133 of the cases (40.9%), the firefighter was terminated or resigned. Sixty-two of the cases (19.1%) involved alcohol or drug usage, 52 of the cases (16%) involved sexual misconduct, and as hard as it is to accept, 31 of those 52 cases involved sexual misconduct with a minor.

The 58 non-disciplinary administrative actions include 28 unfair labor practice charges, 12 employment discrimination claims, 10 ethics commission proceedings, six state health department EMS investigations and two state OSHA citations.

Discussion

The 1,051 cases included in this analysis barely scratch the surface of legal proceedings involving the fire service. Nevertheless, certain trends are clearly evident. Employment-related suits play a huge role in fire department litigation. Employment-related civil litigation (265 cases) combined with disciplinary actions (325 cases) account for 590 cases, or 56.1% of all fire service legal proceedings. If we add the 164 job-related criminal cases, there are 754 cases (71.7%) that are essentially personnel-related legal proceedings. No doubt this is not news to the fire chiefs who spend most of their time addressing "people" issues.

Among the 121 incident-related suits, structure fires are by far the most likely type of incident to give rise to a lawsuit. This fact is even more significant given that most fire departments respond to five to 10 times more EMS-related runs than fire runs, and structure fires represent a small fraction of overall fire runs. When we drill down deeper into the structure fire incident data, we see that more than 60% of the structure fire lawsuits are being filed by firefighters, not by unhappy fire victims. By comparison, only five of the 30 EMS incident-related suits (16.7%) involve a suit filed by a responder.

The most surprising statistic to me in the entire study is the low number of apparatus-accident suits. The 22 such cases represent roughly 18% of incident-related cases, 4% of civil cases and 2% of total fire department legal proceedings, which did not square with my personal experience both as a firefighter and an attorney. To better understand that figure, I spoke with Brad Preston, a certified risk manager with VFIS of Southern New England, who serves more than 500 fire service and EMS provider clients in New England. According to Preston, "Excepting injuries on duty, vehicle accidents make up the most frequent and largest dollar loss for fire-EMS operations. Insurers would see this, but I am not surprised that courts do not. That's because although these claims are frequent, the individual losses are usually not severe. They're often small property damage losses with no injuries, such as a few thousand dollars for a pumper striking another vehicle as it parks at a fire scene. These claims are usually settled by insurers and never rise to the level of legal action. Even larger claims involving injuries may be settled fairly easily amongst insurers. The courts would only see the relatively few claims which evolve to an actual lawsuit where there's a dispute as to liability or the amount of damages sought."

Another surprise is the frequency and outrageousness of some of the firefighter discipline cases. The database contains an enormous number of high-profile disciplinary cases, as well as job-related criminal cases, that reflect poorly on our profession, undermine public confidence in the job we do and complicate the task of ensuring that fire service organizations are properly funded. This should not be a labor-management issue, because fundamentally when the public looks at the fire service they don't draw a distinction between blue shirts and white shirts. When the public's confidence in us is damaged or lost, we all suffer the consequences.

While I had hoped to be able to address the differences in liability from state to state or region to region, as well as evaluate litigation trends over the years, the data set is not yet large enough to draw reliable conclusions. Pennsylvania (89 cases), New York (87 cases) and California (78 cases) have the most total cases, with New York and California in a tie for most civil cases at 47. The chart on page 98 shows the 10 U.S. fire departments with the most legal proceedings, starting with FDNY with 34 (the data is cumulative, not annual or over a given period).

One of the obstacles to analyzing yearly litigation data is that it can be difficult to assign a date to a legal proceeding. While an identifiable event (such as a fire) may give rise to a suit, a suit may also be the result of a series of events that extend over a period of months to years (such as race discrimination). Even with an event that occurs on a certain date such as a fire on Aug. 1, 2010, the suit may be filed in 2010, but then again it may not be filed until 2011, 2012 or beyond depending upon the attorneys involved, and a final decision may not be rendered for three to seven years after that. Thus, assigning a year to a lawsuit, and drawing comparisons from year to year can be difficult. Despite the obstacles, I am confident that going forward we will be able to answer many additional questions about liability trends in the fire service.

Conclusion

Our first look at the fire service litigation database offers some insight into the liability and leadership challenges facing the fire service. Personnel-related matters clearly predominate over incident-related matters when it comes to legal proceedings.

Along with FirehouseĀ® Magazine, I will endeavor to provide annual updates to this study to better assist the fire service in understanding the risks posed by lawsuits and litigation. I welcome your input in terms of how this data can be used, and how the analysis can be improved. Please e-mail me at jcatlaw@aol.com or join me at www.firelawblog.com with your ideas and suggestions.

CURT VARONE has over 37 years of experience in the fire service, retiring in 2008 as a deputy assistant chief (shift-commander) with the Providence, RI, Fire Department. He is now the director of the Fire Service Division of Legal and Liability Risk Management Institute, and most recently was the director of the Public Fire Protection Division at the NFPA. Varone is a practicing attorney licensed in Rhode Island and Maine and is the author of two books, Legal Considerations for Fire and Emergency Services and Fire Officer's Legal Handbook.

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