The Liability Landscape in Fire Services
Fire and emergency services are charged with the public’s safety and thus are entrusted with significant power. This authority, however, is often used in unpredictable, dangerous situations when split-second decision making is required. It is unsurprising, then, that fire and emergency services are subject to significant liability for their actions. Legal doctrine governing such liability is complex, evolving, and varies widely from state to state. While other sections of this blog series will address compensation issues specifically, this section will focus on common liability issues.
A negligence claim is an accusation that someone failed to act in a way that an ordinary person would not, causing harm. Proving negligence in a claim against a fire or emergency service requires showing that the service failed to act in ways that an ordinary prudent fire department service provider would have acted in the same situation and that the failure caused harm. To avoid becoming involved in a negligence claim, fire and emergency services must demonstrate that they behaved as a reasonable fire or emergency department would have.
Thus, if a service "just acted like every other fire department would have," then it behaved reasonably and should not be held liable. If the service took an action that no other fire department would have taken, though, then it may face liability. Similarly, if a fire department failed to take an action that no other fire department would have taken, but it should have taken the action in that situation, the service may face liability.
In addition to the above, a claimant must show that he or she suffered an injury as a result of the service’s negligence. In the context of fire and emergency services, where injuries often take the form of physical wounds, disabilities, or death, this burden is often met. To defend against liability in these cases, however, a service can seek to undermine a claimant’s showing of causation. For example, if a firefighter’s negligence caused only a small part of a person’s injury, the service might argue that the claimant is also liable for the injury.
Fire and emergency services can often avoid liability by showing that the claimant failed to follow appropriate procedures. The two most common procedural defenses are primary assumptions of risk and secondary assumption of risk.
Primary assumption of risk applies to conduct that is commonly performed despite the inherent risks . Some people argue, due to the risky nature of the job, that firefighters and emergency service providers can never be liable for negligence. However, the law is clear on this: firefighters and emergency service providers are liable for negligence just as anyone else is.
The cases that have tried to find a distinction in the liability of firefighters and emergency service providers have not been successful. For example, some courts have held that firefighters and emergency service providers are protected from liability in the context of preparing for, controlling, and managing fires and emergencies. Because this is a difficult duty to perform, these courts have reasoned that claims against the fire or emergency services on the basis of their negligent performance of their duties would, therefore, restrict the services’ statutory and common law duties. Supposing that the government employee acted reasonably and caused a sufficiently consequential injury, the fire and emergency services would then be held strictly liable, which was the situation the doctrine was designed to prevent. This strict liability doctrine, however, has repeatedly been rejected by most courts. See, e.g., Sidwell v. City of Tacoma, 50 P.3d 643 (Wash. Ct. App. 2002).
When primary assumption of risk does apply, the claimant faces a high burden. Where the court finds that this doctrine applies, the burden is on the claimant to prove that the fire or emergency service acted negligently. Continuing the example above, if the service can show that the claimant assumed the risk of injury by riding in the fire engine, the claimant must show that the fire or emergency service still acted negligently and thus met his or her burden.
Secondary assumption of risk applies where the claimant continues to engage in an activity knowing that the risk of injury exists. For example, if a person was injured by a fire fighter running up a stairwell and did not move out of the way because he thought it would be better to get out of the way at the last minute, the fire fighter would probably be able to show that the claimant caused his or her own injury. This defense is similar to contributory negligence and comparative negligence.
Negligence claims against fire and emergency services are almost always accompanied by one or both of these procedural defenses. Fire and emergency services can successfully defend against these claims by showing that the claimant either knew about the risk but continued to engage in the activity anyway or that negligence still existed on the part of the claimant.
Employment Legalities in Emergency Services
Employment Law in Fire and Emergency Services
Those engaged in the business of fire and emergency services are treated as employees under the FLSA, subject to regulations similar to those stated in my previous post dealing with the duties test. Broadly, the FLSA pay and compensation requirements apply to all employees, including those in the fire and emergency services, from the outset. Other labor laws applicable to the general employee population, such as the LMRA, ERISA, NLRA, OSHA and USERRA, are similarly applicable to employees in the fire and emergency services.
In addition, local and state laws and regulations provide specific conditions and mandates regarding appointment, compensation, benefits, rights and safety for personnel within the fire and emergency services. Local and state law requires certain levels of certification for some positions, and many locales provide different compensation levels for employees with additional certifications. For example, certain safety equipment are required to be provided by the employer, or discretion in obtaining such equipment may be granted to the employer, subject to regulation and/or approval by the appropriate state or local regulators. Moreover, some states impose salary caps on certain positions, including certain officers, such as may be encountered in the military.
Safety Standards and Regulations Compliance
Compliance with safety regulations and standards is not merely a matter of following the law; it is a fundamental component of protecting both those who serve in fire and emergency services and those they serve. For fire departments, emergency responders and related organizations, understanding safety regulations and industry standards is essential to risk management and safety compliance. Fire departments and emergency services organizations must comply with a variety of federal, state and local regulations. There are numerous federal laws that apply to fire departments and emergency services organizations, including but not limited to the Fair Labor Standards Act (FLSA), Uniformed Services Employment and Reemployment Rights Act (USERRA), Age Discrimination in Employment Act (ADEA), Occupational Safety and Health Administration (OSHA) regulations and Equal Employment Opportunity Commission (EEOC) regulations. In addition, many states have their own regulations, which may be even more stringent than federal regulations. Local laws may require specific safety training, certifications and equipment. Fire departments and emergency services organizations that do not comply with safety regulations may face legal ramifications and penalties, including potential fines, serious injury to personnel and loss of life. Complying with safety regulations and standards is the primary concern of any fire department and emergency services organization. Compliance not only protects personnel, it protects the community at large.
Data and Privacy Rights in Emergency Responses
In the age of information, data privacy and confidentiality is particularly important for organizations that deal with fire and emergency services and with patient information. Communication often occurs in the context of an emergency response, and precautions must be taken to ensure the privacy and confidentiality of the information being transmitted and received. The Health Insurance Portability and Accountability Act (HIPAA) states, for example, that protected health information (PHI) includes information relating to the past, present, or future physical or mental health condition of a person and information regarding healthcare payments. PHI is further defined by HIPAA as any health information transmitted, in any form or medium, and this definition includes information transmitted electronically through wireless devices or other forms of electronic media.
Communications between patient care providers and individuals acting on behalf of an organization must be carefully considered when patient privacy and confidentiality is a concern. In general, a health care provider who discloses private information in an emergency situation has qualified immunity from liability for damages unless the disclosure was made in bad faith. However, disclosure of private information is otherwise prohibited unless the law permits or compels such disclosure. Further, a disclosure of PHI is subject to the doctrine of patient privacy, but there is no invalidation of the legal privilege if the disclosure of information is made in the course of an emergency situation in the immediate medical care and treatment of a patient. As discussed in the HIPAA manual, a patient may permit or authorize disclosure of medical information, although an authorization that is conditional on the provision of research-related treatment must be separate from any research-related treatment consent.
Noncompliance with information security requirements has significant consequences that affect the organization itself and the individuals involved in the disclosure of private information. For example, the U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights recently entered into resolutions agreements with two professional service providers who failed to comply with the HIPAA Security Rule. In one case, the business associate, a health care organization, failed to appropriately safeguard ePHI and did not implement sufficient security measures to prevent hacking into its systems. As a result, the protected health information of approximately 4.5 million individuals, including names, geographic information, dates of birth, Social Security Numbers, health plan identification numbers, and clinical treatment information was exposed. The resulting payment to HHS for the violations totaled $2,314,640.
In another instance, a dental practice reached a voluntary resolution with HHS after patient information was compromised by a hack into their website. According to HHS, the breach affected approximately 10,000 individuals, and data was collected through a web-based form that requested protected health information from patients and potential patients. HHS stated that the dental practice took corrective action to address security and privacy violations by implementing new policies and resetting login credentials. The payment to HHS for the violations in this case totaled $989,000.
IP and Emergency Equipment
The fire and emergency services industry utilizes a vast array of technologies. Many of these devices are proprietary, meaning a single company has the rights to the underlying intellectual property. It is the responsibility of the purchaser to satisfy itself that the equipment is compliant with all applicable laws, including intellectual property license issues and safety standards.
A typical apparatus purchase order will include language that require the apparatus to be compliant with federal law. Such a language provision may or may not protect the purchaser from patent infringement liability. The proposed TC-10 (Wildland Fire Engine Specification) will take the position that the purchaser of compliant apparatus owns any patents on the apparatus. This provision is currently being discussed by the Fire Apparatus Manufacturers’ Association and the government.
Patents are similar to copyrights in that they provide only a limited monopoly on the use of certain inventions or designs. In 35 U.S.C. ยง 273, there is the "business method patent." Although it is unclear whether ‘business methods’ can apply to apparatus manufactured for fire and emergency services, a decision on the subject is inevitable if the subject is not banned outright by a change in the law .
Under the current law, an entity that uses an apparatus that infringes on a patent may be held liable for damages to the patent holder, as well as potentially being subject to an injunction prohibiting the use (for example, continued use of the particular product or interfering with the sale of the apparatus to others). The purchaser may also be liable for any actions of the seller if the purchaser and seller are operated by the same entity (commonly referred to as a "corporate veil" issue). If the manufacturer was clear that the apparatus or equipment complied with all applicable law, then a purchaser or user should have a good faith defense. However, a court may still find liability if the purchaser or user failed to inquire whether the manufacturer, was following the law. There is no requirement that the purchaser or user know of the existence of the patent at the time of purchase.
Any equipment purchased, designed, manufactured or sold to government entities must meet applicable standards. These standards are prevalent and codified by law. For grant purchases, there are additional requirements to assure compliance with various tax laws and government purchasing regulations.
Legal Issues in Cross-Agency Coordination
Interagency cooperation generally starts with a formal intergovernmental agreement, frequently known as a mutual aid agreement (MAA) or mutual assistance agreement (MAA) between jurisdictions. Massachusetts Mutual Aid is a voluntary, statewide system that costs nothing to users. Nationally, fire departments have been using the National Fire Incident Reporting System data for planning, resource allocation, and training for over 30 years. A key part of the National Fire Incident Reporting System is the ability to identify what other organizations assisted the responding department (including other fire departments and various support agencies). However, most of these arrangements are informal agreements between the departments or units, with no time spent defining responsibilities, operational procedures, or clearly spelled out understandings. This leads to confusion and delays during real events, since the parties to an informal understanding have no way to resolve issues that are not covered by their understanding.
Many local and state government employ fire and emergency services to provide supplemental resources to supplement their existing departments. These services, from wild land fire support units to full-fledged fire departments, often make little or no effort to integrate their operations through agreements or staffing choices. So, when they arrive on an incident scene, they may be unfamiliar with the personnel, equipment, command structure, and operating conditions they encounter, and come to the realization that the local department(s) are their Incident Commanders, just at the time the Incident Commander is contemplating the order of priorities for the day (e.g., saving lives, controlling the fire, protecting structures, and minimizing losses). This lack of knowledge becomes problematic when responding to fires and especially hazmat incidents because it is difficult to manage a large number of uncoordinated, unfamiliar, and untrained units and personnel. This mismatch between the realities of the request and realities of providing support reduces the effectiveness of fire and emergency services across the board, increases liability for any involved organization, and can endanger lives.
Clearly, this lack of integration and communication would benefit from being addressed in a proactive manner, before an event. It is also apparent that many jurisdictions have never felt they needed to write agreements for support services, so few agreements exist. By contrast, many cities and departments have written minimum prerequisites and clear expectations for all functional aspects of their operations. For example, some hazmat units require a minimum of 40 hours of training prior to deployment, attendance by the requesting department at their annual training exercises, and prior notification of any changes to equipment or personnel. Other fire departments specify that they will provide only supervisory personnel to training sessions, while others require all departments on the incident scene to attend their training sessions together prior to the event. The response mode selected for a particular event may be less important than ensuring that all units and personnel function as an integrated cohesive unit.
Although many organizations and municipalities have been using MAAs, very few have discussed or initiated efforts to improve the integration and coordination of the responding units outside the context of a particular incident. While there are clearly many local considerations, addressing the issues in advance can both decrease legal liability and increase buy-in by departments.
Future Legal Possibilities for Emergency Services
Looking ahead, it is clear that the legal landscape will continue to evolve and reflect emerging technologies and practices. As fire and emergency services become more connected and data-driven, this will have a profound effect on the legal landscape. Here are five areas of shared focus:
- The use of 5G technology. As the rollout of 5G technology occurs, its impact of connected and autonomous vehicles – and therefore the fire and emergency services that respond to accidents involving those vehicles – will be significant. More data will need to be collected in more forms and made available to support emergency preparedness and response – and the legal issues associated with that need will increase.
- New laws affecting autonomous vehicles. In addition to the technological developments associated with 5G technology, changes are being made by various legislative bodies and public policy organizations as to regulation of connected and autonomous vehicles. These changes will definitely have an impact on the delivery of fire and emergency services – particularly in the area of auto accidents.
- Cybersecurity issues . As with all business sectors that rely on technology, fire and emergency services must remain vigilant about cybersecurity and protecting the personal information of its employees. This has been, and will remain, a focus because of increasing efforts by hackers to obtain access to that information and "hold it hostage" until a fee is received to return it – or even sell that information on the dark web.
- Changes in ADA regulations. In the last year, changes to ADA regulations have been implemented. While some of them have been vacated, in 2020 the most significant of them were upheld. Examples include requirements to make applications accessible to those with disabilities, and obligations to ensure that policies do not unjustifiably limit people served by emergency services from full and equal enjoyment without a disability.
- Role of the attorney general. While 50 legal systems and 50 state governments can create a convoluted legal landscape, in reality most emergency services are covered by only one state’s laws or regulations. That will change going forward, as the idea of an "aggressive" attorney general emerges who will investigate violations of laws in any state, and thus create liability for other states’ fire and emergency services.