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Article 4-8

NY: INCIDENT COMMAND - WENT DEFENSIVE AT LARGE INDUSTRIAL FIRE – CHEMICALS FROM BUILDING - FD AND TOWN NOT LIABLE UNLESS GROSS NEGLIGENCE

On Oct. 19, 2009 in AMW Materials Testing, Inc. and Anthony Antonious v. Town of Babylon and North Amityville Fire Company, Inc., 2009 U.S. App. LEXIS 22893, the U.S. Court of Appeals for the Second Circuit (3 to 0) affirmed the decision of the U.S. District Judge and trial jury that the FD and the Town were not liable for release of chemicals at the fire. Under the federal environmental law, CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act 42 U.S.C. § 9601 et seq.), emergency responders are not liable for chemical releases unless there is proof of gross negligence.

The Court described the fire:

"In 2000, plaintiffs owned an industrial facility in North Amityville, New York, where they engaged in metal finishing for the aerospace industry. Pursuant to permits, plaintiffs stored various ‘hazardous substances,’ see 42 U.S.C. §§ 9601(14), 9602(a), in the AMW facility for use in their work.

Sometime before 3:00 p.m. on October 9, 2000, a fire broke out in plaintiffs' facility, which Antoniou and an AMW employee unsuccessfully attempted to extinguish. Meanwhile, individual callers and an automatic alarm system in the AMW facility alerted defendant North Amityville Fire Company ("Fire Company") -- a volunteer association -- to the fire. Within minutes, members of the Fire Company responded to the scene. Fire Company Chief Willie Tutt initially ordered firefighters into the AMW building to fight the blaze from within. Almost immediately, the firefighters were compelled to withdraw by the extremely high heat and thick smoke that they encountered. Soon after their exit, the front wall and roof of the building collapsed. As a result, the Fire Company decided to employ defensive firefighting techniques, using a deck gun and a tower ladder to suppress the fire. Chief Tutt testified that, at the time, he understood that the building was likely lost. After firefighters thus extinguished the accessible portions of the fire, Chief Tutt instituted an "overhaul" phase in which pay loaders removed portions of the collapsed roof so that firefighters could gain access to the fire that continued to smolder underneath.

As a result of the fire and the subsequent building collapse, hazardous substances stored in plaintiffs' facility were released into the surrounding environment. During and after the fire, plaintiffs took various steps to contain, remove, and remediate these hazardous substances."

The FD knew of the hazardous materials at the scene, and properly called for a HAZMAT response. The Court described the Fire Chiefs actions:

"The Fire Company Alarm Detail Dispatch for the AMW fire said, ‘Please Note Hazardous Materials.’ Fire Company Chief Tutt testified that, within a minute of arriving at the scene of the fire, he called Dispatch to note that there were "a lot of chemicals" on the scene and to request assistance from the Environmental Protection Agency. Shortly thereafter, representatives of the New York State Department of Environmental Conservation and the Suffolk County Department of Health arrived at the scene."

Under CERLA, there is no liability for emergency responders unless proof of gross misconduct.

"By their nature, emergency situations require quick responses, often before risks are fully understood. The affirmative defense afforded by § 9607(d)(2) serves to ensure that states and municipalities are not dissuaded from responding to emergency situations by the threat of strict liability under CERCLA. This goal would hardly be served by conditioning § 9607(d)(2) immunity on subjective knowledge, thereby encouraging delay in responding to an emergency while such knowledge was acquired. As the House Report to the 1986 CERCLA amendments notes, § 9607(d)(2) ‘removes a disincentive for governments to respond to emergencies covered by CERCLA.’ H.R. REP. 99-253, 73, reprinted in 1986 U.S.C.C.A.N. 2835, 2855; see also Pennsylvania v. Union Gas Co., 491 U.S. at 49 n.3 (White, J., concurring in part and dissenting in part) (quoting House Report). With this understanding of the purpose and history of § 9607(d)(2), we conclude that the proper inquiry under that section is solely objective, i.e., was the state or local government responding to an emergency caused by the release or threatened release of hazardous substances. If so, then regardless of what subjective knowledge the responders had about the hazards at issue when they first arrived on the scene, their CERCLA liability under § 9607(a) is limited to ‘gross negligence or intentional misconduct’ in dealing with the emergency. 42 U.S.C § 9607(d)(2)."

Legal Lessons Learned: This is a helpful decision for the fire service; without the "gross negligence" defense FDs we be required to pay substantially higher insurance premiums to cover the risk of multi-million dollar environmental cleanups.

Article 4-7

OHIO: CIVIL IMMUNITY - POLICE OFFICER DISMISSED FROM LAWSUIT – TRIAL COURT SHOULD HAVE PROMPTLY DISMISSED HIM SINCE EVIDENCE WAS CLEAR THAT OFFICER DID NOT ACT IN "PERVERSE DISREGARD OF A KNOWN RISK" - OFFICER REPEATEDLY FIRED HIS SERVICE WEAPON AT A SUSPECT WHO POINTED A SHOTGUN AT HIM; UNFORTUNATELY A BYSTANDER WAS ALSO SHOT IN HER LEG

On May 4, 2009, the Ohio State Bar Association published Scott v. Longworth, 180 Ohio App.3d 73, 2008-Ohio-6508 (Ohio Court of Appeals for First District, Hamilton County, Dec. 12, 2008). Two police officers were on bike-patrol, at 2 am in a high-crime area in Cincinnati, when they observed a fight between two men in a hair salon on May 26, 2005. One of the men, Donte Williams, had a 12-guage shotgun hung over his shoulder on a sling. Officer Mark Longworth ordered Williams to drop the shotgun, but instead he turned towards the officer. Officer Longworth fired multiple shoots, firing until Williams hit the ground. Williams was hit in his right flank and left shoulder. Three other civilians were also in the salon, including Tiffanie Scott, owner of the hair salon; she was hit in the leg by one of the officer’s shots.

She sued Officer Longworth and the City of Cincinnati, claiming he acted with "gross negligence" and that the city negligently retained and supervised the officer. The city filed a motion for summary judgment, asking the trial judge to dismiss both the city and Officer Longworth from the case. The trial court dismissed the city, but refused to dismiss the officer and would let a jury decided his liability. The city’s attorneys filed an immediate appeal on behalf of the officer.

The Court of Appeals (3 to 0) reversed and ordered Officer Longworth dismissed from the case. The Court cited the Ohio Supreme Court’s 2008 decision in O’Toole v. Denihan, 118 Ohio St.3d 374, 008-Ohio-2574, involving a lawsuit against a county employee, holding that "recklessness is a perverse disregard of a known risk. Recklessness, therefore, necessarily requires something more than mere negligence. The actor must be conscious that his conduct will in all probability result in injury."

The Court of Appeals also referenced helpful Ohio Revised Code provisions:

"An employee of a political subdivision I generally not liable for personal injury in connection with the employee’s performance of a governmental or proprietary function. [Footnote 4; Ohio Revised Code 2744.02(A)(1)]. But the employee is stripped of immunity if (1) his acts or omissions were manifestly outside the scope of his employment or official responsibilities, (2) his acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner, or (3) civil liability is expressly imposed upon him by a section of the Revised Code. [Footnote 5, Ohio Revised Code 2744.03(A)(6).]

Applying those standards the Court finds that Officer Longworth’s conduct was not reckless:

"Williams had leveled a shotgun at a uniformed police officer who had ordered him to drop it. Officer Longworth’s actions were reasonably calculated to defend himself and others. There was simply no evidence that Officer Longworth had consciously fired his gun with the knowledge that it was substantially certain that a bystander would be injured."

In a concurring opinion, Judge Painter [who is world-famous for courses is improved writing for attorneys, and has recently been appointed to be a judge on a United Nations’ court in New York City] wrote:

"I concur, of course. What else was Officer Longworth to do? A guy points a shotgun right at you at 2:00 am. You shoot.

Unfortunately, Scott was in her salon a short distance away. If the alternatives were (a) to be shot almost point-blank with a shotgun, or (b) to shoot at the bad guy, knowing no one was very close, I know which one I would choose. In my view, Officer Longworth’s actions were not even negligent, much less reckless or perverse."

Legal Lessons Learned: In the fire service, there are an increasing number of lawsuits being filed against Incident Commanders by individuals injured at fire scenes, including even firefighters. Ohio Revised Code provisions are most helpful to protect Ohio fire and EMS officers.

Article 4-6

OHIO: CHURCH FIRE - FIRE CHIEF ASKED POLICE TO STOP PASTOR FROM TRYING TO ENTER BUILDING – PASTOR IGNORED ORDERS - CONVICTED OF MISCONDUCT AT EMERGENCY

On March 21, 2008, in State of Ohio v. Stewart W. Lawson, Ohio Court of Appeals for Montgomery County, 2008-Ohio-1311 (2nd District 2008), a 3-judge panel of the Court of Appeal (3 to 0) upheld the jury’s conviction of Pastor Stewart Lawson for misconduct at an emergency. At a structure fire at his church on April 25, 2006, he disregarded the orders of the Fire Chief to stay outside the structure.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 4-5

OHIO – ICE ON ROAD FROM LIVE BURN - FD CAN NOT BE SUED FOR DEATH OF MOTORIST

On June 18, 2008, in Howard v. Miami TWP. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-2792, the Ohio Supreme Court (5 to 2) reversed the Court of Appeals for Montgomery County, and held that accumulation of ice on a roadway is not an "obstruction" and therefore the family of Christopher Howard cannot sue the FD or the Township for his death on Jan. 24, 2004.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 4-4

OHIO – FIREFIGHTERS WITH 36-HOUR “VOLUNTEER” CERTIFICATES CAN SERVE AS PART-TIME PAID FIREFIGHTERS – FIRE CHIEFS CAN IMPOSE HIGHER REQUIREMENT SUCH AS FF I CERTICATE

Ohio House Bill 401 was enacted Jan. 4, 2007, and requires that FF take continuing education courses similar to EMS. The bill includes a definition of “PART-TIME PAID FIREFIGHTER,” and an Ohio Fire Chief called our office about whether the new law will require part-time personnel to hold FF I certificates. Doug Orahood, Fire Training, Ohio Department of Public Safety (614-752-3960) confirmed that the Fire Subcommittee of the Ohio Emergency Medical Services Board has no plans to adopt regulations under the new law which would require part-time paid firefighters to hold FF I certificates.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 4-3

OH – LIVE BURN WITH WATER RUNOFF - TOWNSHIP ORDERED TO STAND TRIAL IN CIVIL SUIT FOR DEATH OF MOTORIST.

On March 30, 2007, in Howard v. Miami Township Fire Division, 171 Ohio App.3d 184, 2007- Ohio-1508, 2007 Ohio App. LEXIS 1394, the Ohio Court of Appeals for Montgomery County reverses a trial judge in Dayton who dismissed the lawsuit by the estate of Donald Howard, who died on Jan. 24, 2004 after his vehicle struck a tree in Miamisburg, OH. The court of appeals held that the Township does not enjoy governmental immunity since the water from the training fire created an “obstruction” on the highway.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 4-2

OHIO - SMOKE FROM VILLAGE BURNING CHRISTMAS TREES – OHIO SUPREME COURT HOLDS THERE IS NO GOVERNMENTAL IMMUNITY IN LAWSUITS BY MOTORISTS IN AUTOMOBILE ACCIDENTS

On Dec. 27, 2006, in Sherwin-Williams Co. v. Dayton Freight Lines, Inc., 112 Ohio St.3d 52, 2006 – Ohio – 6498, the Ohio Supreme Court (5 to 2) held that the Village of Lewisburg does not enjoy governmental immunity from lawsuits by 19 individuals and companies which occurred on Feb. 7, 2000 on Interstate 70 because of a mixture of smoke and fog that created visibility problems.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 4-1

NEW YORK – INCIDENT COMMAND - STATE TROPPER ARRESTED DEPUTY FIRE CHIEF WHO REFUSED TO MOVE FIRE ENGINE BLOCKING HIGHWAY AT ROLL-OVER ACCIDENT

On November 29, 2006, the New York Daily Record (and also in www.firehouse.com) reported that Rockaway Township Deputy Fire Chief Robert Jenkins was arrested at the scene of a rollover crash when he refused a State Trooper’s order to move a fire engine used to provide a safety zone for ambulance and other emergency personnel. The incident raises the serious issue of who “controls” the scene of an accident, and whether “blocking engines” should also set out cones and flares.

The accident occurred about 9 pm, and one victim was out of his vehicle, walking on the shoulder if the highway, but also complaining of neck pain. The state patrol called for an ambulance. The ambulance responded and parked on the shoulder near the rollover. The fire department also responded with a heavy rescue truck, an engine, and an incident command vehicle. Deputy Chief Jenkins ordered his fire engine to park diagonally across the shoulder and the right lane of traffic to provide a safety buffer zone.

State Patrol Trooper Kevin Fritz told Deputy Chief Jenkins to move the engine since the trooper thought it was creating a hazard for on-coming traffic (the engine had it emergency light on). Jenkins described the trooper as being “irate” and apparently things got heated quickly. When Deputy Chief Jenkins told the fire engine operator to not move, Jenkins was immediately arrested for disorderly conduct. He spent two hours handcuffed to a bench in a holding cell at the State Police barracks in Netcong, New York. The fire engine operator was issued two citations: for failure to obey his order, and for operating a vehicle without a license.

Deputy Fire Chief Zenkins said he acted properly in blocking the shoulder and right lane, “I followed state guidelines. I followed the state code by the book, and the troopers didn’t.” He further explained, “I’m willing to a lose a fire truck, but I’m not willing to loose one of my members.” Rockaway Township Fire Chief Joe Mason agreed, stating “It [the arrest] happened so fast, there wasn’t time to put the cones down.”

State Patrol Captain Al Delle Fave countered by stating the fire engine was hazardous, with no cones or flares set out to worn on-coming motorists. He further pointed out that under PA law, the state police controlled the scene. “The issue came down to who had authority at the scene. Plan and simple, on that date in question, during the incident, state police had full authority. The deputy chief should have recognized that and deferred to us.”

The Mayor said that Rockaway Township will pay for an attorney to defend their deputy fire chief (and hopefully also defend the fire engine operator). He has also called for a meeting of the state patrol and the Township’s firefighters.

Question: who has the authority at an MVA scene in your state? In Ohio, the Ohio Attorney General issued an opinion in 1994 (opinion 94-076, http://www.ag.state.oh.us/legal/opinions/1994/94-076.htm) that concludes the fire department has the authority. The Opinion Letter was written to the Greene County Prosecutor in Xenia, Ohio an incident between a state trooper and a fire officer.

”You have requested an opinion on the following question: "When an injury accident occurs on a state highway, are the state highway patrol or the fire department/emergency medical technicians in charge?" Your question arises from an incident that occurred when the emergency equipment of a township fire department within your jurisdiction was dispatched to an injury accident at the intersection of a state highway and a local road. You relate that shortly after the emergency squad arrived at the scene, a State Highway Patrol trooper requested the captain of the fire department to move a piece of emergency apparatus from the flow of traffic. The captain of the fire department did not move the emergency apparatus  and was arrested for failure to comply with the order or signal of a police officer in violation of R.C. 2921.331.  It appears that various criminal charges were then actually filed against both the captain of the fire department and the State Highway Patrol trooper. All such charges were subsequently dismissed, however, and there was no judicial resolution of the issue you have raised.”

* * *

“Although the placement of emergency equipment at the scene of an accident on a road or highway is ultimately dictated by the circumstances of the particular emergency, the interaction of State Highway Patrol troopers and emergency squad personnel at the scene should be marked by cooperation, rather than competition for control. The public safety and welfare is not advanced when emergency squad personnel ignore legitimate concerns of the State Highway Patrol with respect to traffic control and law enforcement at the scene of an injury accident; nor is it advanced when the State Highway Patrol ignores legitimate concerns of emergency squad personnel as they try to provide emergency medical services to injured persons….”

Conclusion

“It is my opinion, therefore, and you are hereby advised that when an injury accident occurs on a state highway, and emergency medical services personnel of a township fire department that provides emergency services pursuant to R.C. 505.37(A) respond to the call, the individual designated by the fire department as being in command has the legal authority to control the duties of the emergency medical services personnel and the placement of emergency equipment as needed to provide effective emergency services at the scene; yet such authority should be exercised in such a manner as to accommodate legitimate public safety concerns of other public officials with responsibilities at the scene, including State Highway Patrol troopers.” [Footnotes omitted.]

LEGAL LESSON LEARNED: Emergency responders and police need to cooperate at emergency scenes, particularly concerning placement of fire engines on highways to protect the scene. Incidents like this case can be greatly reduced if senior police and fire officials adopt an MOU. State Attorney General opinions, such as in Ohio, are also helpful.

NEWSLETTER IS NOT PROVIDING LEGAL ADVICE; Posted by UC solely as information and for the benefit of students.

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