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CHAPTER 5 – EMERGENCY VEHICLE OPERATIONS

Article 5-9

FEMA – EMERGENCY VEHICLE VISIBILITY AND CONSPICUITY STUDY

In August, 2009, FEMA published a very interesting study on how to make Fire & EMS vehicles more visible to the public: http://www.usfa.dhs.gov/downloads/pdf/publications/fa_323.pdf.

Legal Lessons Learned: Very interest study on best practices in retro-reflective stripping, chevrons, high-visibility paint, passive lighting systems and other emergency reflectors.

Article 5-8

NY: FIREMAN’S RULE - MODIFIED BY NY STATE STATUTE – POLICE OFFICER INJURED WHILE RIDING IN PATROL CAR SPEEDING TO ARMED ROBBERY CAN SUE CITY BUT MUST PROVE PARTNER DROVE WITH LACK OF DUE REGARD FOR SAFETY OF OTHERS

On August 12, 2009, in Thomas Mitchell and Debra Mitchell v. The City of New York, the Supreme Court of New York, New York County, 2009 N.Y. Misc. LEXIS 2313, held that Officer Mitchell and his wife may proceed with their lawsuit seeking damages from the City of New York, from the on duty accident when the patrol car he was riding in struck a light pole.

Officer Mitchell and his partner stopped for coffee at a Dunkin Donut in Nassau County, the early morning hours of May 26, 2005, in a light drizzle. He waited in the patrol car for his partner, Veronica Schultz, to return with the coffee. An armed robbery in progress call came in.

Officer Mitchell alleges his partner put the tray of coffee on the dash board, turned on the lights and siren, and sped towards the scene. The coffee spilled on her and she lost control of the vehicle. He further alleges she took her hands of the steering wheel and shouted, “Oh my God, what can I do?” She vehicle fishtailed and skidded into the light pole.

Officer Schwartz disagrees, and states that Officer Mitchell held onto tray of coffee, she never exceeded 30 mph, and never took her hands off the steering wheel.

The Court explained the fireman’s rule:

“Under the common law, a firefighter or police officer may not maintain an action for negligently caused injuries arising out of situations requiring their services, a principle which has come to be known as ‘the firefighter’s rule.’ This doctrine is grounded on the public policy against awarding damages to firefighters and police officers for hazards they are specifically trained and compensated to confront.”

Therefore, Officer Mitchell can not sue the city for the alleged negligent driving by his partner.

However, New York has enacted General Municipal Law Sec. 205-e, to remedy the harsh effects of the fireman’s rule. It allows firefighters and police officers to sue another if they are injured as a result of non-compliance with “any statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments.”

The Court held that Officer Mitchell and his wife may proceed with their lawsuit against the City, since he alleges that his partner violated the emergency vehicle traffic law, Vehicle & Traffic Law Sec. 1104. The law requires emergency operators to “drive with due regard for the safety of all persons.”

Officer Mitchell has also submitted the affidavits of two expert witnesses, both of whom characterize Officer Schultz’s handling of the vehicle in the fishtail as reckless, not merely negligent. The experts also dispute the speed of the vehicle; it had gone two blocks from the Dunkin Donut and it struck the light pole with such speed that it dislodged the rear axle.

Legal Lessons Learned: Drive emergency vehicles with due regard; not only can injured civilians sue, but in some states that have modified the Fireman’s Ruler, a fellow firefighter or police officer can sue the city.

Article 5-7

WALES, UK and UTAH: TEXTING WHILE DRIVING CAN BE DEADLY – GREAT VIDEOS

Two "eye opening" videos were made by the Gwent Police Department, Wales. I hope that FDs will share the videos with local schools.

These videos were posted on 8/24/09 by my friend, Bryan Haywood, on his excellent safety newsletter, Bryan@SAFTENG.net.

• Video #1 - http://www.gwent.police.uk/leadnews.php?a=2172
• Video #2 - http://www.youtube.com/watch?v=zbFJWDqc0C4

In the United States, a video was made in Utah of a MVA that killed two, and sent the young driver to jail.

Video #3 - http://ut.zerofatalities.com/texting.php

Legal Lessons Learned: FDs should consider adopting an SOG that prohibits personnel from texting while driving department vehicles; consider also banning use of cell phones while driving.

Article 5-6

TEXAS: FATIGUED WORKER – EMPLOYER NOT LIABLE FOR OFF-DUTY TRAFFIC ACCIDENT

On June 23, 2009, in Nabors Drilling, USA, Inc. v. Francisca Escoto, No. 06-0890, the Supreme Court of Texas held that a drilling company can not be sued when its 19-year-old employee, driving home at 6:30 am killed himself and four individuals in another vehicle. The jury verdict of $5.95 million dollars is set aside. While this is not a fire service case, the issue of fatigued employees is significant to the fire service.

Nabors Drilling is the largest land-based oil driller in the continental United States. They hired 19-year-old Robert Ambriz to work 12-hour shifts, 6 am – 6 pm one week, then a wee off, followed by 6 pm to 6 am the next week.

About 4 months on the job, Ambriz completed a night shift and was driving home on a farm road at about 6:30 am. His vehicle crossed the center line, and collided with a vehicle driven by Martin Rodriquez and occupied by three others. All five persons died.

The Texas Supreme Court held:

"Considering the large number of Texans who do shift work an work long hours (including doctors, nurses, lawyers, police officers, and others), there is little social or economic utility in requiring every employer to somehow prevent employee fatigue or take responsibility for the actions of off-duty, fatigued employees."

***

"We hold that Nabors [Drilling Co.] owed no duty to prevent injuries resulting from fatigue following an employee’s shift-work schedule. We further hold that Nabors owed no duty to train its employees regarding the dangers of fatigue."

Legal Lessons Learned: FDs should consider an SOP that requires its on-duty personnel to not drive emergency vehicles unless they have had "adequate sleep" [such as 6 hours] prior to reporting on duty. Part-time personnel sometimes work at two or more FDs and go directly from one FD to the other.

Article 5-5

FIREFIGHTERS AND SEAT BELTS – FIRE DEPARTMENTS NEED TO DOCUMENT TRAINING AND ENFORCEMENT OF SEAT BELT POLICY – AVOID INJURIES AND VSSR CLAIMS

On Feb. 22, 2008, two Liberty Township, OH firefighters responded in a fire engine to a vehicle on its side and possible entrapment. Fortunately the firefighters were wearing their seat belts. As the fire engine crested a hill on Ohio Route 4 in Butler County, they hit a patch of black ice, and the engine spun out of control. The 39-ton engine hit the side of the road, and rolled completely over, coming to rest right-side up. Both firefighters survived, with only minor injuries.

The interview with these two firefighters will make an excellent training handout. See The Pulse Journal article by Eric Schwartz, 3/13/08, "Firefighters Recount Night Of Engine Crash; Liberty Twp. Rescuers found themselves being rescued after rollover on ice road," http://www.pulsejournal.com./hp/content/oh/story/news/local/2008/03/14/lib031308truckflip_1.html.

What if one of the firefighters was NOT wearing his seat belt, and was severely injured? The firefighter would certainly file a workers compensation claim with the Ohio BWC for medical expenses and loss wages. If his injuries prevent him from returning to full duty, he will amend his claim and seek compensation for PTD (Permanent and Total Disability).

The injured firefighter may also decide to file a VSSR claim (Violation of Specific Safety Requirement), and seek an additional award, if he can prove that the fire department does not enforce its seat belt policy. The injured firefighter can simply go on line to Ohio BWC’s web site and file a Form I/C-8/9, "Application for Additional Award for Violation of Specific Safety Requirement" seeking an added award of 15% to 50% of the Ohio Average Weekly Wage. The claim can be filed with two years of the injury, death or initial diagnosis of illness.

The Fire Department is required to enforce the wearing of seat belts, under Ohio Administrative Code 4123:1-21-04(5)(b):

"Employees shall be required to be seated
and belted while the apparatus is in motion,
except while loading hose."

Ohio Revised Code 4101.12 requires Ohio employers to provide a safe workplace and adhere to all safety rules. Likewise, it is the responsibility of every Ohio worker to properly use any provided safety equipment, including seat belts. Ohio Rev. Code 4101.13.

The Manager of the Ohio BWC’s Safety Violations Investigation Unit is William Garver, 614-466-7759. Upon receipt of the firefighter’s VSSR claim, a copy will be sent to the Fire Department. The employer has 30 days to file an answer. [The operation of the Unit is described in an Ohio BWC pamphlet: https://www.ohiobwc.com/downloads/blankpdf/SVIU.pdf .]

Mr. Garver will then send out a Special Investigator to conduct a fact-finding investigation. Typically, they will start by interviewing the injured employee. They will also seek the names of other witnesses, such as firefighters who can confirm that they too drive emergency vehicles, or respond to scenes in their own private vehicles equipped with lights and sirens ("public safety vehicles"), without wearing a seat belt. These interviews are frequently tape recorded, and sometimes videotaped.

The Special Investigator will also interview the Fire Chief and possibly other senior officers. The Investigator will seek proof that the seat belt policy is enforced.

DOCUMENTATION: Did the injured firefighter sign a receipt for the policy? Did the claimant attend a training session on the policy? Has there been any recent training? Is there documentation of any firefighters having been disciplined or verbally counseled (confirmed in writing) for breach of the policy?

This documented evidence is critical, not only for the VSSR investigation, but also when the matter comes before an Industrial Commission Hearing Officer. If there is an appeal to the full Industrial Commission, the documented training and enforcement record will likewise be critical. We all understand the phrase, "IF IT’S NOT IN WRITING, IT DIDN’T HAPPENED."

The potential financial consequences to the Fire Department can be severe. Bill Garver, Manager of the Safety Violations Investigation Unit, kindly prepared calculations for use in a Mock Seat Belt Hearing scheduled for August, 2008 at the University of Cincinnati (cancelled when wind storm knocked out area power). Using the hypothetical of a 40-year-old firefighter, permanently disabled after an on-duty crash, while not wearing his seat belt: $1,392,300, including $728,000 PTD, and $664,300 for VSSR. (See Bll Garver’s calculations, posted at www.uc.edu/cas/firescience, UC Officer Development – Seat Belt Hearing).

THIS CAN REALLY HURT YOUR BUDGET: The $664,300 VSSR award is charged back to the Fire Department dollar-for-dollar as paid out to the claimant.

If the firefighter was killed, the financial costs really climb. Bill Garver advises that the Industrial Commission has historically awarded VSSR claims at the maximum 50% rate in workplace fatalities. The widow could receive $630,000 for the VSSR claim alone. She also would receive funeral expenses up to $5,500, and death benefits of 66.66% of her husband’s Average Weekly Wage until age 75 and does not remarry. (See details in my article published in Firehouse Magazine, 4/7/08, "Larry’s Legal Lessons: Lack of Seat Belts can be Costly," www.firehouse.com, search BENNETT).

A second VSSR violation can really sting. If the Fire Department is found by the Industrial Commission to be in violation of another VSSR within two year period, the department could be assessed not only for the second violations, but also an additional penalty of $50,000. In such cases, Special Investigators will re-visit the employer to confirm 100% compliance.

In many VSSR investigations, the evidence produced also results in intentional tort lawsuits being filed against the employer, or third-party claims against others such as manufacturer of defective equipment that injured the employee. Through the VSSR process, plaintiff attorneys receive, in effect, "free discovery" prior to ever filing their lawsuits.

CONCLUSION: Fire Departments should have a written seat belt policy or Standard Operating Guidelines (SOG), should require 100% compliance, and should document the training and enforcement of the policy. Hopefully, any emergency vehicle crashes will turn out like Liberty Township, with only minor personal injuries to the firefighters and no injuries to civilians. In one Ohio city, a firefighter suffered severe injuries when he was thrown through the windshield of the fire engine when it ran into the side of another engine at an intersection. Fortunately he survived and is now back to work full time as a fire inspector. See dramatic photos posted on our web page, www.uc.edu/cas/firescience (UC Officer Development; Seat Belt Hearing).

Article 5-4

OHIO’S NEW "QUICK CLEAR" STATUTE

Ohio’s new Quick Clear law, effective Dec. 30, 2008, will expedite the removal of vehicles from accident scenes, without liability to police or fire personnel for possible damage to the vehicle or its contents. Accident scenes can be very dangerous to emergency responders. To help ensure mutual cooperation at accident scenes, fire departments, local police agencies and Ohio State Patrol should schedule "joint training sessions."

[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 5-3

PA - Loose Fire Hose From Responding Engine Killed 10-Year-Old Girl And Severely Injured Another – PA Court Of Appeals Upholds Jury Verdict of $4.5 million Against Company That Purchased Fire Engine Manufacturer; Volunteer FD Settled For $500,000

On 9/2/08, in Joyce A. Schmidt, Adminisratrix of estate of Erin D. Schmidt v. Boardman Company, et al. and Coraopolis Volunteer Fire Department, the Superior Court of Pennsylvania held (3 to 0) that the jury’s $4.5 million verdict against the company which acquired Boardman Company, Sinor Manufacturing, Inc., n/k/a Freightliner Specialty Vehicles, Inc. is liable for claims of strict product liability. The Court also held (2 to 1) that family member who witnessed the death on one girl, and the severe injuries of another, can receive damages for infliction of emotional distress. See full decision at http://www.superior.court.state.pa.us/opin_index.htm.

The loose hose led to tragic circumstances. The Superior Court quoted from the trial judge’s statement of facts:

"On August 19, 2004, while responding to a fire alarm, members of the Coraopolis Volunteer Fire Department were operating a fire truck on Mt. Vernon Avenue within the Borough of Coraopolis. Unbeknown to the fire company, a fire hose was dangling from the side of the truck."

"The nozzle [to the fire hose] became briefly lodged under the tired of a parked truck as the hose ran underneath a parked car. The hose [then] became ‘taunt’ [and the] force was so great that it lifted the parked car before the nozzle broke free. The hose and nozzle, which was described as a missile, traveled with enough force to sheer a concrete bird feeder in half before striking three plaintiffs. (Tr. at 180)."

"The nozzle struck the head and face of Joeylynne Jeffress, age 10, causing extensive injuries. Erin D. Schmidt was similarly struck by the dangling hose resulting in her death a day later. Joyce A. Schmidt, Erin’s mother, was also struck. Joeylynne, Erin and Joyce were standing in [the] Schmidt’s front yard at the time of the accident."

"Joeylynne Jeffress’ sister, Lauren Jeffress, age 14, was standing across the street from her sister at the time of the accident and witnessed the trauma to her sister. Lindsay Schmidt, age 13, the sister of Erin Schmidt, similarly witnessed the fatal blow that killed her sister while stading alongside Lauren Jeffress."

"The fire truck involved in the Coraopolis accident was manufactured and/or designed by the defendant …Boardman Company (hereinafter "Boardman"), a division of TBC Fabrication, Inc. (hereinafter "TB") in May of 1995."

"In July of 1995, the defendant Sinor Manufacturing, Inc. (hereinafter "Sinor") purchased substantially all of the assets of [Boardman.] *** In 1998, Sinor and a certain division of Freightliner, Inc. were merged into a new entity known as Freightliner Speciality Vehicles, Inc (hereinafter "Sinor / FSV").

After a jury trial from Sept. 5 – 14, 2006, the jury returned a verdict in which Sinor/FSV was found to be fifty percent (50%) liable and the volunteer fire department was found fifty (50%) liable. The trial judge entered a judgment against the company for $4,517,073, and they filed this appeal.

According to news reports on Sept. 3, 208, the plaintiffs had earlier reached a settlement with the Coraopolis Volunteer Fire Department for $500,000, apparently the maximum liability under PA law for a volunteer FD: http://www.thepittsburgchannel.com/news/17378119/detail.html.

Two key issues on appeal included:
(1) First issue on appeal - can the purchasing company, Sinor /FSV, be held liable in a product liability lawsuit for injuries caused by the fire engine manufactured by Boardman Company?

Yes. [Note: By the time of this accident, Boardman Company had gone out of business, and their product line insurance policy had lapsed, so plaintiffs had no viable remedy against them.

The Superior Court noted that normally when one company sells its assets to another company, the purchasing company is not responsible for the debts and liabilities of the selling company. But when the sale involves a product line, and the purchasing company undertakes essentially the same manufacturing operation, then as a matter of public policy the users of this product line are protected. Citing a New Jersey decision, the purchasing company has "strict liability for the injuries caused by defects in units of the same product line, even if previously manufactured and distributed by the selling corporation or its predecessor."

The Superior Court noted that Sinor/FSV bought the assets of the Boardman Company to remain in the fire truck manufacturing business, including manufacture of FIRE TANKERS under 20,000 GWVR, 144 foot Rescue Model RS-1 LIGHT RESCUE, and a 192 foot MEDIUM / HEAVY RESCUE. The Superior Court held that:

"[Sinor / FSV] continued to manufacture the same general line of business as [Boardman], i.e., vehicles used in the fire suppression industry. Based on the evidence adduced at trial, the jury could infer that Appellants manufactured a fire suppression vehicle that appeared to sufficiently similar in design to a fire truck, possessing the same characteristics and functional purpose of a vehicle employed in the fire suppression industry. Therefore in light of the foregoing, Plaintiffs proffered sufficient evidence to support a finding that it would be ‘fair’ to impose liability on Appellants as a successor corporation."

(2) Second issue on appeal. Can emotion damages be awarded to Joyce Schmidt, Lindsay Schmidt and Lauren Jeffres, when they suffered no physical injuries?

Yes. The Supreme Court’s three judges split two to one on this issue. The majority wrote:

"We conclude that Appellants’ arguments are meritless. *** We conclude that in Pennsylvania, a bystander plaintiff who witnesses injury to a close relative can recover emotional distress damages when the injured person’s underlying cause of action is based on strict products liability rather than negligence."

The one dissenting judge wrote, "no appellate court in Pennsylvania has addressed the issue of whether a party may recover damages for emotional distress in a strict product liability case. *** I respectfully dissent from the Majority’s disposition of this single issue."

The dissenting judge referenced a PA Supreme Court decision in 1966, who adopted the Restatement [nationwide recommended laws] on product liability, which provides in part:

"One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused by the ultimate user or consumer…." [Emphasis in original.]

Legal Lessons Learned: Check your hose beds; secure those nozzles.

Article 5-2

LA – EMERGENCY VEHICLE ACCIDENT – LA SUPREME COURT REVERSES LOWER COURT FINDING THAT CAPTAIN WAS 50% AT FAULT - LIGHTS AND SIRENS WERE ON WITH DUE REGARD FOR SAFETY

On March 9, 2007, the Supreme Court of Louisiana in Calvin Rabalais and Marion Rabalis v. Llyod A. Nash, Jr., 2007 La LEXIS 523, held that Captain Nash and Marksville FD were not liable for any of the serious injuries to Mr. Rabalais since the emergency vehicle had lights and sirens activated and the vehicle was being driven with due regard (traveling 45 mph in a 55 mph zone).

The majority opinion illustrates the importance of getting statements from civilian eyewitnesses. The court wrote, “Here, the record reflects that six witnesses to the accident all testified that the emergency lights on the fire pick up truck were activate. In addition, Early Guillory … testified he heard the sirens from the fire trucks.” The court concluded, “When the driver of an emergency vehicle meets the requirement of [Louisiana statutes] the driver can only be held liable for actions which constitute reckless disregard for the safety of others, i.e. gross negligence.”

On June 12, 2002, the Marksville FD responded to a huge fire at the Jen-Re Plastic Plant in Marksville, LA. They called in seven other FDs on mutual aid; smoke could be seen from 45 miles away. The Fire Chief called the HAZMat team from the City of Baton Rouge, and also called for foam from the Exxon Plant in Baton Rouge.

The Assistant Fire Chief of Marksville FD ordered Captain Nash and another firefighter to return to the station in the FD’s pick up truck and return with Pumper No. 1. The Assistant Chief testified that the fire was out of control, and it was a life or death situation for the firemen battling the blaze.

Traffic on the northbound lane of Highway One, a two-lane highway, was bumper to bumper leading towards the fire scene; southbound traffic was congested. Captain Nash drove the pick up truck southbound, under the posted speed limit, with lights and sirens on. The plaintiff, Mr. Calvin Rabalais, was leaving Glen’s Auto Repair Shop on the westside of Highway One. A motorist allowed him to pull out of the driveway, and as he attempted to make a left-hand turn he was struck by the FD pickup truck in the center turning lane and was severely injured.

The lawsuit was tried to a jury, which found Mr. Rabalais 100% at fault (he admitted that when had pulled out he never looked to his left to see if any cars were coming in the center lane). On appeal, the LA Court of Appeals reversed the jury verdict and allocated 50% fault to Captain Nash and the FD, and ordered them to pay the following damages: $62,000 in general damages, $17,667.53 in past medical expenses, and $12,500 to Mrs. Rabalis for loss of consortium.

The LA Supreme Court reversed the Court of Appeals, holding that under LA law that when emergency vehicle operators have their lights and sirens activated, they are not liable except when operating with “reckless disregard for the safety of others.” The court held that “reckless disregard” is in effect “gross negligence.” Gross negligence is the “want of even slight care and diligence.” When lights and sirens are not activated, the emergency driver’s actions will be gauged by a standard of “due care” or ordinary negligence.

The court concluded, “After careful review of the record in its entirety, and applying the appropriate standard for review, we find the court of appeals erred in reversing the jury’s conclusion that defendants Nash, the Marksville Fire Department and their insurer, were not liable.” [Chief Justice Calogero dissented, because the FD pickup truck was in the center turning lane at the time of the crash. Justice Knoll also dissented, because the FD pickup truck was “not performing an act necessary to the emergency at the time of the accident.”]

Legal Lessons Learned: On emergency runs, keep your lights and sirens activate; get statements from eyewitnesses who confirm they heard the sirens; and if you are in a crash, keep your sirens on when calling dispatcher for assistance so the sirens are recorded on the tape.

Article 5-1

TENNESSEE – HIGHWAY PATROL ARRESTS A FIREFIGHTER

In Jan. 2007, there was another report of a state trooper arresting a firefighter responding to a run. Firefighter Michael Huskey of Sevier County, TN heard a call requesting an emergency driver to help a nearby ambulance. He responded in the family mini van, with is wife and kids on board. He put on the vehicle’s flashers, and was driving about 85 MPH in the 55 MPH when the state trooper tried to pull him over.

Mr. Huskey called a 911 dispatcher and requested they inform the trooper he was responding to an emergency call. Apparently the trooper did not get the information; he allegedly “swooped” in front of Mr. Huskey, and caused an accident. The trooper then arrested Mr. Huskey, handcuffed him, and took him to the police station. He was charged him with failure to yield to the trooper’s lights and siren, and speeding. He was released on bond and must appear in court in a couple of weeks.

Legal Lessons Learned: Firefighters responding to emergency calls, without red lights and sirens activated, are not “public safety vehicles” in most states. Good news – on February 7, 2007, in Rockaway Township, New York, all charges were dropped in Municipal Court against Fire Chief Robert Jenkins and FF Allen Bell, after they apologized to State Trooper Kevin Fritz for not obeying his order on Nov. 26, 2006 to move there fire truck blocking State Route 80 at the scene of a MVA.

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

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