The instructor pauses before a group of officers discussing training challenges in the fire service. “The last thing you want to document is someone’s exam score, whether on a medic exam or a promotional exam. What if the fire department gets sued? What if the student gets sued? How would that 71 look in court? Even a 99 on an exam is an admission that the person is prone to make mistakes.”
There are many well-intentioned instructors out there who use liability concerns to motivate their students to work harder and do things right. Using liability as a motivational boogey-man is as old as the fire service itself, perhaps even older. But what happens when that advice is just plain wrong and causes us to do things that might actually increase our liability?
Relevance is key
Firefighting is grounded in common sense, and for a lot of reasons needs to be kept as simple as possible. Put the wet stuff on the red stuff, as they say. It is as simple as 2 plus 2 equals 4.
But does 2 plus 2 always equal 4?
We know that putting the wet stuff on the red stuff is not always the right solution. Combustible metal fires and fires involving pesticides require a more advanced understanding that goes a step beyond simple common sense. While 2.3 may round to 2, 2.3 plus 2.3 equals 4.6 which rounds to 5.
How does this relate to exam scores? Should fire departments dispose of training-related documentation that evaluates a member’s performance? Are exam scores a liability trap?
From a lawyer’s perspective, understanding the fallacy about the dangers of keeping exam scores begins in law school evidence class. One of the cornerstone rules of evidence is that in order for evidence to be admissible in a case, it must be relevant to a matter in dispute. Irrelevant evidence is inadmissible because it does not help the jury determine what occurred. A second cornerstone rule of evidence is that even relevant evidence may be excluded when its probative value (its ability to prove something) is outweighed by the risk that a jury may misunderstand or misapply it.
The classic example involves a lawsuit stemming from an automobile accident where one of the drivers has no driver’s license. Common sense suggests that once the jury hears that one of the drivers was so irresponsible as to drive without a license, it will result in a slam-dunk finding that the unlicensed driver is liable for the accident. Along the same lines, some may assume a low score on a driver’s test would be of similar value.
Applying the first cornerstone rule that evidence must be relevant in order to be admissible, how does the fact that one of the drivers had no license help the jury determine who was careless in causing this particular accident? How would the person’s exam score on a driver’s test be relevant?
The reality is the lack of a driver’s license is irrelevant to determining who was careless in causing this particular accident. Perhaps the driver with a license was speeding or ran a red light. What possible insight could a jury gain merely by knowing that one of the drivers lacked a license? If anything, it may confuse the jury members, who should be focused on the factual question of who was at fault for the accident. As such, the lack of a driver’s license will be excluded at trial, as will the test scores that both drivers received on their driver’s test. It is a more advanced form of common sense, like 2.3 + 2.3 = 4.6, which rounds to 5.
How does one side in a lawsuit keep the other side from introducing irrelevant evidence such as an exam score? Objections during the trial are one way, but the more common method is for the party seeking to exclude the evidence to file a motion in limine. Perhaps you heard of a motion in limine recently when a candidate to become a federal judge was asked by a senator during a televised confirmation hearing to define it, and he could not. A motion in limine is intended to allow both sides to argue the admissibility of evidence to a judge outside the hearing of the jury before a trial begins.
Let’s apply this to a case involving a firefighter-paramedic with a low exam score who is being sued for malpractice in the death of a patient. The attorney representing the medic would file a motion in limine with the court arguing that the exam score is irrelevant and prejudicial. The deceased patient’s attorney would then have to prove that a low score on the exam would in some way be probative of whether the medic was negligent in this specific instance. In essence, the patient’s attorney would have to show how the low exam score directly contributed to the patient’s injuries in order to be relevant. Chances are the exam score will be excluded from evidence.
Even if the low score is somehow found to be relevant, the risk that the jury could be prejudiced into believing that because he had a low score he was likely to have been negligent in this instance would outweigh any probative value the low score would have. In other words, the exam score would likely confuse or unduly prejudice the jury more than it would help them better understand what actually occurred. Under the circumstances, it is inconceivable that a trial judge would permit such information into evidence.
Why it matters
A lack of understanding of this important principle of evidence has led fire chiefs, training officers and others to intentionally discard training documentation including exam scores. Whether the result of well-intentioned instructors or the rantings of poorly educated attorneys, more than a few fire departments have fallen victim to this “common sense” mistake.
Instead of reducing liability, failing to maintain information necessary for our training systems can actually increase liability for the department. Exam scores, skill sheets and other types of training documentation provide important data for evaluating our training programs and ensuring quality control. This documentation is also invaluable when defending the department against other types of claims such as discrimination and/or failure to train lawsuits.
As when fighting a combustible metals fire, common sense coupled with a little knowledge can go a long way toward success. Incidentally, NFPA 1401: Recommended Practice for Fire Service Training Reports and Records provides guidance for fire departments on maintaining training records. Despite an entire chapter devoted to liability concerns, NFPA 1401 does not recommend that test scores be discarded for liability reasons. On the contrary, NFPA 1401 recommends that fire departments maintain accurate and complete training records in order to help manage liability.
