1. #1
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    Default What is your liability if you don't adopt 1710 or any other standard?

    Okay here's the story. I am a career FF in a medium sized city. I have been appointed to the Union's 1710 committee to look at ways of implementing it.

    There is a comment that comes up over and over from members of the FD..."If the city doesn't adopt 1710 they will still be held liable for the standard and can be successfully sued for non-compliance." Is that true? I don't believe it is. Does anyone know of any FD that was successfully sued for not adopting a standard and thereby being in non-compliance with that standard? I don't want anecdotal info here I want names of FD's or cities involved.

    Before anyone jumps on me and says he must be anti 1710...I am not. But what I don't want to do is try to use a tactic for pushing compliance that is false and will make us look bad.

    I believe in order to be held liable the standard must be adopted by either your city or state or be a federal law. If I am way off base here someone straighten me out.

    I plan to post this on several forums so I don't miss any opinions.

    If you aren't comfortable giving info on here please e-mail me.

    Thanks,

    FyredUp
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    I have not been able to find a single case where a town or fire department was held liable for not following a voluntary standard. Even the NFPA has been unable to tell me if this has ever happened.

    Departments have been sued for not following a standard, but I have never heard of one losing based on not following a standard.

    [ 08-08-2001: Message edited by: Ken Hanks ]
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    "The most mediocre man or woman can suddenly seem dynamic, forceful, and decisive if he or she is mean enough." from "Crazy Bosses"
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    Drennan v. City of New York, State Supreme Court
    Civil case.
    NY lost for neglignence in not providing gear that met NFPA standards...and that was in NY which we all know is an OSHA state.

    This was the 1st among many that were pending at the time.

    There are many others out there.

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    Your city / district will have to decide just how important THIS NFPA standard is.
    I have yet to see a department that followes EVERY NFPA standard. Most towns do what they think is best for them. Just quessing by I'd bet that most departments don't copmpletly follow 1500.
    Does it put you at a higher liability, perhaps, but that is why we all have lawyers. See what the man who represents your department thinks. After all it will be his responsibility to represent you in a lawsuit.

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    ADSN-

    I agree with you that there is probably not one dept that follows NFPA standards to the letter however.
    However, If you look at the other standards outside of 1710 & 1720 there is the provision allowing the AHJ to decide. 1710 & 1720 has "mandatory" Language which dictates certain minimum critiera would be met. After that it is up to the AHJ.

    These are not like "EVERY" other NFPA standard for that reason.
    If this criteria wasn't "Mandatory" I doubt we would have seen the spectacle put on by the ICMA, CLC and others.

    Besides I doubt the chief would have to represent you in a lawsuit. I also doubt the ICMA would have fought this standard this hard if it increased the liabliy of the common Jake.
    The reason it fought so hard is because it holds their membership accountable.

    This standard will likely place the Chief and city in Civil Court when you or one of your brother firemen is severly injured or even worse killed. And we all know the burden of proof is much lower in Civil court than criminal.

    I'm not a lawyer and this post is not anything begining to resemble a legal opinion however Common sense tells me that If I were a chief taken to court over this Standard I would think I would have a hard time convincing a jury that I didn't have to at least try to meet this standard.

    Two cents from a fireman.

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    When I talk about the man who represents your department I mean your Lawyer. God knows chiefs all around the country make stupid mistakes, at liest the lawyer knows the law.
    Anyway, from what I've read auto / mutual aid counts, so use them. It didn't look like they wanted full manning on every call, just structure fires.
    I'd still ask the lawyer what he thinks.

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    Odds are you don't follow most of the rest of the NFPA standards, so what makes 1710 or 1720 special?

    Does every building in your rural area have a water supply within 2000 feet?

    Can you meet all your fire flows in and out of town?

    Do you staff your downtown companies with 5 and 6 firefighters?

    Do all your members get yearly complete physicals?

    Do you have a 50 minute foam supply for all your flammable liquid risks?

    Do you conduct quantitative fit testing of all firefighters with air packs AND offer different size facepieces?

    Are all your firefighters FF2's?

    All officers NFPA 1021's?

    All members and officers haz mat certified?

    Are the smallest water lines in a residential areas a minimum 8 inch?

    Are all commercial areas 10 inch or larger?

    Do you have a PT program for all members?

    Is spacing 300 feet in commercial areas and 500 to 800 in residential areas?

    DO you have any first line apparatus older than 1986 or any apparatus in service 1976 or older?

    Did you score a Class 1 in communications?
    Did you score a Class 1 in water supply? If not you don't follow NFPA.

    Odds are your attorney will ask you to get out of the fire business when he finds out how many things you are not doing to any standard.

    ....This was the 1st among many that were pending at the time.

    There are many others out there. ...

    Funny there are not any NFPA citations in the the case records. Care to give us the citation and reference for any of the MANY out there??????

    [ 08-11-2001: Message edited by: play ]

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    ADSN/WFLD You said "When I talk about the man who represents your department I mean your lawyer. God knows chiefs all around the country make stupid mistakes, at least the lawyer knows the law."

    As one of those chiefs that probably made my share of the stupid mistakes I would suggest that you not assume your lawyer knows the law. That may not be a stupid mistake but it could be very costly. As a chief who knows that without any doubt, I will not be able to comply with 1710/1720 I would like to know the answer to this question myself. The problem is that nobody I know wants to give me a legal opinion that might come back to haunt them. Good luck in obtaining a definitive answer and if you get one please let me know.
    "Don't be afraid to ask stupid questions, they are a lot easier to handle than dumb mistakes"
    Author Unknown

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    Let me give you the readers digest version of what Air Force Fire Departments are currently doing;

    We make every effort to fully comply with OSHA, NFPA, DOD, Air Force and countless local regulations. Every year, we fill out a NFPA 1500 compliance worksheet. We identify all areas we are not in compliance with, and what steps we are taking to get in compliance. Alot of these non-compliance issues are purely monetary. However, if we were ever called to task (court), we could show a pattern of written documentation where we identified the standard, identified what we need to do to comply and when we expect compliance. Although this may not totally negate a liability, it puts us in a better state than someone who pleads ignorance.

    Specific questions are welcome.

    Joe

    This posting is a personal paraphrase of current guidelines. This in no way reflects any governmental compliance policy.

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    Wylie,

    Here is some information which I hope will help answer your questions.

    -As I mentioned in my previous post 1710 and 1720 are different than most other NFPA standards. Most other standards use suggestive language. Leaving much to the discresion of the AHJ. However in 1710 there was "mandatory" language that was hottly contested by many who appealed the committee's decision.
    There was a reason you saw more participation and vocal protests from the ICMA, CLC and others. It was because they understand the legal liablity they are placed under by 1710.

    -You have a point that most Depts do not meet the all the standards. But Personal injury Law suits are not likely to stem from failure to meet certain provisions of lets say NFPA 1201.

    As for the courts there are a number of issues we must establish.

    Fire Departments under a legal concept of "Master and Servant" owe a duty to maintain a safe work enviroment.

    Yes NFPA Standards are "voluntary" and "advisory" however the courts often use the NFPA documents to establish a "Standard of Care". This standard establishes a base line for determining neglgence and if a Dept committed a "Breach of Duty".

    Here is an example of what can (and with due time) will happen:

    A Dept. that fails to meet 1710 has a fire in which a firefighter is seriously injured or even worse killed. The firefighter (or estate) sues. The expert witness that the plantiff would use from the NFPA would testify to the standard in question. Certainly the Attourney would bring up the staffing trials conducted in Dallas, Seattle, Columbus and others. (all of which were used in the creation of 1710)

    Under 1710 it is provided that a Dept. may alter its staffing and deployment system from that in 1710 if it can show in scientific tests that it can provide a safer work enviroment than that provided by 1710.

    So barring that the Chief would be at a loss to explain why his Dept was not meeting the "minimum" requirements of 1710 and meeting the "standard of care".

    Also remember that in civil court it isn't as simple as "Gulity or Not Guilty" it is where the proponderance of evidence lays. therefore if the jury feels that the city is 45% negligent then they would make the city pay 45% of the damages awarded.

    As for particular cases:
    The following 3 are all related to the same case. From a fire in SOHO in '94.

    ** Drennan v. NYC NY Supreem Ct. 12-14-99
    Case 22247479 Judge: Payne
    ** Drennan v. NYC NY Supreem Ct. 7-26-00
    Case 22261325 Judge: Payne
    ** Drennan v. City of New york NY Supm Ct.
    1-07-00 Case 22311416 Judge: Gangel-Jacob

    City Settled for Over $2 Million.

    Another case although I can't find the particular case no. it was in a Queens Court. That ruled in favor of a fireman injured in '85
    This was a precent setting case in December of 1993 that established negligence of the FDNY for not providing bunkers.

    The Plantiff used OSHA and NFPA guidelines to establish the "standard of care"

    The case was Bruce Lyall v. City of New York
    He won $1 million in the case.

    It was reported by Newsday on 12-24-1993;
    Page Number 23; Title Burned Fireman Awarded $1M.....
    "Yesterday's verdict was expected to open the floodgate for similar lawsuits against the city, Sullivan said. An estimated 40 similar lawsuits are pending against the city, and hundreds of others expect to
    be filed."

    What also is noteworthy about both of the above cases is that NY is an OSHA state however NFPA standards were used to help the plantiff.

    There are many others Like these in other states and locals not all related to fire depts. Some businesses such as Gas stations have been found liable from fires that injured customers when the company failed to meet NFPA standards on the pumps or facilites.

    I hope clears some questions for you.

    Two cents from a fireman.

  11. #11
    blackb16
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    Seems you are saying failing to provide gear got a firefighter burned. Not failure to follow NFPA got a fireighter burned.

    "So barring that the Chief would be at a loss to explain why his Dept was not meeting the "minimum" requirements of 1710 and meeting the "standard of care"."

    Chiefs administer dollars they don't create them, the elected officals create the funding for the FD. SO the city not the fire chief takes the burden.

    Staffing studies??? So everyone who does not have 6 on a rig is 50 to 60% liable right now for any injury or death and for all excess property damage? If that were so, wouldn't all the FD's in the US shut down who do not have 6 on a rig? I bet if the study tested 13 on a rig it would have done better than 6 on a rig.

    Communities make choices, OSHa must not think all these issues are too big an issue, of they would be law not concensus voluntary standards.

    So far you've proven law suits get paid out for doing dumb things like not wearing protective clothing that a reasonable person would do not that you had to payout $1 mill cuse of what NFPA stds said.

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    Blackb16 I'm sorry if I mislead you but I will clairify what I was saying.

    -The City or Dept (one in the same) failed to provide "modern firefighting gear" which to prove that the gear they were issued and using according to their dept's policy was not sufficent. The Plantiff used NFPA standards for firefighting gear to prove the city didn't meet its duty to its members. The Court found the "Standard of care" in NFPA standards was not met.

    -I'm using the example of the chief who represents the city in matters concerning his Dept. I wasn't saying he would be personalby liable. As you will note in the mentioned cases the Defendent is not the Chief nor the Fire Commissioner. It is the City of New York. The chiefs are the ones, like you said, that are trusted to make the decisions of where the money goes. If it is shown the chief somehow was negligent then it is a burden upon the city employing him for he is a representative and agent of the Dept and City. Either way it is the city not the Chief who pays but the Chief can be called to the stand to testify.

    I am curious who says you must have 6 on every rig. I know it is only recomended in 1710 for certain situations.

    As for everyone without 4 (not 6 as you said)being held liable. As with any new standard depts that adopt them "move" toward compliance. The juctice system realizes that nothing in government happens overnight. As long as their is a good faith effort then the courts I would imagine would be forgiving.

    The OSHA respitory standard is law however it didn't happen overnight. Did you see them levy and fines the day after it went into effect. No because they are realistic.

    As for 13 on a rig you are right. Common sense says that 13 would get more done than 4 however that is a ridciulous argument.

    Using OSHAs respitory standard as guidance and after anaysis of the staffing trials the greatest jump in efficency occured when there was an increase from 3 to 4 man comapnies. There were fewer injuries and the severity decreased as well.

    Besides also it makes sense by spliting up the duties on why 4 is better than 3. 1 on the knob. 1 to back him up. 1 at the pump and 1 to feed hose in the door. Pretty simple if you ask me. The 5 or 6 would be clearly needed for areas that have tactical hazzards as in 6 story walk-ups and high-rises.

    13 men on a rig would be way past the effective span of control of an officer.

    Furthermore the brothers who were killed or injured in the cases mention were wearing the gear issued to them by their Dept at the time. And operating according to policy in wearing it according to policy.

    I ask you how were they dumb? Following orders and wearing all Dept issued equipment. I'm not sure how you can qualify that statement. If you review the cases I think you might understand better.

    Fyred Up wanted proof of liablity, I offer proof, If you can deduct any other educated conclusion from the courts findings I would like to hear it.

    As for OSHA not thinking this is important. 1710 was just passed. I wouldn't be surprised if OSHA develops a similar CFR in the near future.

    I hope that answers some of your questions.

    Two cents from a fireman.

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    FRED, Isn't it true that no appellate court has ruled on NFPA "standards" being a legal standard? I have not seen any appeal of Drennan or any other case to date. Am I missing something?
    Bob Compton
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    ENG6511

    As far as Ruling on NFPA as a legal standard you are correct. From what I have read I have not seen any court actually treat NFPA as a Law. All texts and cases I have read treat it as an Advisory Standard that can be used to establish a "Standard of Care" to determine "duty" in a negligence case.

    I'm not sure what you are asking by, if you are missing anything? To what are you refering?

    I will cite a statement from the Feb. 7th, 2001 edition of the Wall Street Journal:
    -When the NFPA passes a new standard, "Cities usually have to accept it or face liabilty issues that affect our bond ratings and insurance costs."- Mark Funkhouser Kansas City auditor.

    While this proves nothing legaly it does show that apparently Mr. Funkhouser (along with the ICMA, CLC) and others realize that there is a liablity issue at stake; otherwise there wouldn't be such debate. Someone above them told them they better be aware of this Standard. They are worried and it shows.

    Drennan was settled by the city for $2 million after the court ruled that there was a breach of Duty. And that a jury would decide if the city's negligence led to the deaths. One of the other FF's families got a settlement of $75,000. The 3rd never brought suit.

    This was all after Lyall v. NYC which set the precedent for the gear issue. This was the first case of this kind that the city lost. The city paid the Jury's award of $1-Million. He asked for $1.75.

    Both plantiffs used NFPA standards along with OSHA CFRs to build their case that the city was negligent in not providing the proper gear.

    Although NFPA is a standard which bears no legal weight other than they are "usually" Advisory in nature.

    Since they are consensus Standards from a recognized authority, they can and have been used to establish "Duty", "best practice" or "Standard of care. Whatever you want to call it."

    There are many more cases out there. I seem to remember most of the ones I recall reading about delt with Apparatus wrecks and NFPA Standards. Sorry I don't know of any specifics though for those cases.

    I am not saying that any particular court will accept NFPA Standards as evidence in any proceeding. Not withstanding that, it has been accepted before and will in all likelyhood be acepted again.

    Two cents from a fireman.

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