The problem is illustrated by the highly publicized crash in December 2000 that killed Chicago Fire Lieutenant Scott Gillen. Gillen was working at the scene of a crash on Interstate 94 at about 2 A.M. when he was struck by a car whose driver was speeding and under the influence of alcohol. The driver failed to move around the emergency vehicles parked at the scene, struck Gillen and pinned him against his ladder truck.
Congress, in 2000, asked the U.S. Department of Transportation (DOT) to "evaluate means of improving the safety of persons present at roadside emergency scenes, including motor vehicle accidents." This led the department to request that the National Commission on Uniform Traffic Laws and Ordinances (NCUTLO, www.ncutlo.org) to evaluate current state laws and recommend legislation improving the protection of workers at emergency scenes. NCUTLO created a task force that included police, fire, EMS, transit and other government agency representatives. The commission's findings are disturbing, and call into question some basic fire service assumptions.
At least nine states have enacted laws in recent years that define an emergency scene, require drivers to reduce speed and change lanes when approaching an emergency vehicle, and provide special penalties for those who do not. However, NCUTLO was not able to identify any effective, comprehensive legislation addressing emergency roadway scenes. Indeed, it identified significant flaws in several laws that have been held up as models.
Illinois enacted legislation, "Scott's Law," in the wake of Gillen's death, that was carefully analyzed by NCUTLO. A driver approaching a stationary emergency vehicle must change lanes into a lane not adjacent to that of the emergency vehicle, "if possible with due regard to safety and traffic conditions." If changing lanes would be impossible or unsafe, the driver must reduce speed, "maintaining a safe speed for road conditions." There are special penalties, which escalate for a property damage collision, personal injury or fatality.
NCUTLO analysis concluded that the measures such as "Scott's Law" are ineffective and possibly counterproductive. NCUTLO takes issue with the requirement that the lane adjacent to that of an emergency vehicle be vacated. This requirement makes it necessary for drivers to make additional lane changes and causes additional traffic congestion, both of which increase the risk of secondary crashes. The commission argues that the Illinois law acknowledges its potential negative impact on safety with its exemption if changing lanes would be impossible or unsafe. This adds an element of uncertainty, and makes the law virtually unenforceable, since reasonable drivers might differ on whether changing lanes in a particular situation is safe.
As a result of its work, NCUTLO published an "Incident Responders' Safety Model Law" that is a valuable guide in developing a statute to protect emergency responders. It seeks to balance the sometimes conflicting aims of incident management, protection of people and property at the scene, and maintaining the traffic flow. It is a national model that can guide state legislatures nationwide.
Section 7 of the NCUTLO model law provides that, "when in or approaching an incident, every driver shall maintain a speed no greater than is reasonable and prudent under the conditions…" Further, every driver must obey the directions of any authorized official directing traffic and all applicable traffic control devices. Drivers must vacate any lane that is wholly or partially blocked (but not the adjacent lane). The law imposes an additional driver's license suspension for a period between six months and two years if a violation results in a serious injury or death.
Some elements of the model law, such as the requirement to obey directions of an authorized official who is directing traffic and the penalty provisions, are similar to the Illinois law. Likewise, the NCUTLO task force looked favorably upon Illinois' alternative requirement to reduce speed and maintain a safe speed for road conditions if changing lanes would be impossible or unsafe.
The task force deliberations reflected the frequent tension between the fire-rescue and police communities. Law enforcement officials often feel pressure to open a road as quickly as possible to reduce congestion and the risk of secondary collisions. Fire and rescue personnel want as much space as possible for a safety zone. Thus, Fairfax County, VA, Fire-Rescue Battalion Chief Edward G. Wine, who participated in the NCUTLO deliberations, said he does not believe that the model law will save lives.
Wine raises a valid concern about the value of the model law's driver requirements. Like the Illinois law, it will be difficult to enforce because its "reasonable and prudent" requirement can be subjective. (It should be noted, however, that there are many court decisions that attempt to define this term.) More important, often there are not enough law enforcement personnel at the scene of an emergency to conduct necessary operations and enforce this law. Realistically, requirements upon approaching drivers are most likely to be enforced only when there is a secondary crash.
The Illinois law and those adopted in other states put most of the burden for maintaining scene safety on the drivers of approaching vehicles. The NCUTLO model law takes a different approach by addressing actions that the emergency services can take. This model law addresses scene management by establishing an incident command structure. It creates authority for controlling and/or diverting traffic, gives authority to remove vehicles and provides liability protection for incident commanders. This reflects Wine's concern that emergency responders often do not have an adequate level of supervision at the scene of highway operations.
The legal system is not well equipped to provide scene safety. This is true, regardless of whether the law contains specific requirements, such as Illinois, or whether it is more general, such as proposed in the NCUTLO model law. Instead, as Wine argues, the solution may lie in better educating the public and improving the emergency operations on scene.
Perhaps the greatest value of any law addressing emergency roadway scenes is the non-legal benefits it may provide. It makes a policy statement about the importance of using extra care around emergency scenes that provides a basis for conducting public education. One group committed to this task is the Emergency Responder Safety Institute (www.emergencyresponder.com), an informal advisory panel of public safety leaders committed to reducing deaths and injuries to America's emergency responders.
Roadways are among the most dangerous locations at which fire and EMS units operate, but laws alone will not adequately reduce the risk of roadside operations. They must be combined with public education and improved operations to reduce the likelihood of tragedies such as the death of Scott Gillen.
Steve Blackistone, a Firehouse® contributing editor, is an attorney and a member of the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.
