First Responder Liability : EMS Lawyer & Attorney : Fred Simon Law Firm : First Responder Liability, Emergency Services Response

 As the old saying goes, “what if you gave a party and nobody came?” Well, what if you had a fire and nobody came? Sounds incredible but it happens.

For instance, take the Fresno, Texas homeowner whose 3,800 square foot home recently burned to the ground because volunteers failed to respond. KTRK-TV Houston recently reported the incident where although all pagers were working, the department’s Chief could not explain the absence of every single member.

Is there liability in this situation? The homeowner’s insurance company will most certainly cover the loss, but will that insurer have a right of subrogation against the volunteer department or the city if those operations are funded by the homeowner’s tax dollars?

We’re not talking here about delayed response times due to budget cuts (which seems to be a rising trend). Can the public expect a timely volunteer fire and emergency services response in exchange for its tax dollars?

An Alabama case, Hollis v. City of Brighton, 885 S.2d 135 (2004) addressed that issue. Plaintiffs who lost their home to a fire alleged that the City of Brighton established a duty and therefore liability by creating a volunteer department then consisting of nine members with three apparatus. The Supreme Court found no liability by distinguishing the performance expected of career firefighters to those of volunteers saying, “(B)ecause, in creating a volunteer fire department, a city is relegated to the vagaries of volunteer manpower, the undertaking by the city is too indistinct to support a legally enforceable duty to provide skillful fire protection.”

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Recognizing firefighting as a vital profession predating the Commonwealth, the Kentucky Supreme Court recently ruled that fire departments and volunteer fire departments are agents of the state and are therefore immune from suit in tort (civil liability for negligence) in firefighting actions. In addition to confirming that the attendant municipality cannot be sued as well in these circumstances, the decision went further to declare that fire chiefs are also protected from suit absent a showing of bad faith in the performance of their duties.

For anyone interested in a detailed account of the history of the fire service dating back to the American colonies and Benjamin Franklin, the lengthy decision by Deputy Justice Will T. Scott is well researched and departs from the prose typically found in a published legal opinion.

The case involved a business owner’s claim against the a city, its volunteer fire department, and its chief seeking damages for excessive losses for allegedly failing to summon sufficient resources to effectively extinguish a fire. Kentucky’s highest court reversed the opinion of the Kentucky Court of Appeals that previously found the sovereign immunity provisions of KRS 75.070 and its companion statute, KRS 95.830(2) unconstitutional.

Observing a classic Yin Yang balance of the judicial system Justice Scott contrasted the right of people to access the courts against the need to limit attacks on the public coffers. He stated that the purpose of the jural rights doctrine “is to ensure that citizens are afforded an opportunity to have their causes heard in open court.” On the other hand, Justice Scott observed that the doctrine of sovereign immunity is “a bedrock component of American governmental ideal, and a holdover from the English common law.”

In finding the protective statutes constitutional Justice Scott confirmed that the General Assembly may draft legislation articulating "a clear public policy determination that it intends for all fire departments, volunteer fire departments, and firefighters to be immune from tort liability for their governmental or official acts."

However, the decision makes the qualification that firefighters and fire chiefs do not enjoy a blanket grant of immunity unless he or she is "acting solely and alone in a governmental capacity." This protection is referred to as "qualified official immunity" which protects public officials from "bad guesses in gray areas."

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We take for granted that every first responder agency, whether it be fire, EMS or police, strive to initiate their response to an emergency as quickly as possible after the 911 call, a dispatch is made, or “the tones drop.” However, consider where a complaint is made on an emergency crew’s proficiency or perceived delay in remedying a problem.

Take the case of the suburban Los Angeles homeowner who is blaming firefighters for the loss of his historic home when a shed fire allegedly spread to an adjoining tree and then to nearby buildings. A negligence claim is bound to follow. 

Can a department, the municipality or individual responders be found civilly liable for damages on these claims?  Does the law provide immunity?

The Iowa Code insulates its emergency responders from liability for negligence in connection with a response even when the fire department failed to follow its response policy. However a close reading of Kershner v. City of Burlington might suggest a different result if there was no response to the 911 call.

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In an article reported in the Courier Journal, attorneys for Louisville Metro (the merged city and county government) have filed a motion seeking dismissal of claims filed against it stemming from a fatal accident caused by an off-duty police officer.

While driving his take-home cruiser to work and listening to his police radio, the officer apparently swerved into an emergency lane and struck an individual putting gas in a friend’s stranded vehicle.

The City argues that the officer was not being paid at the time and was not performing any “act that benefits metro government.”

Attorneys for the Plaintiffs contend that any worker who drives a company car to and from work is providing a benefit to the employer, is therefore deemed to be on duty, and the employer is liable for his negligence.

All of which begs the question asked by Plaintiff's counsel: if the police officer was truly on duty, wouldn’t part of his responsibilities be to stop and render aid to a stranded motorist instead of ignoring the potentially hazardous situation?
 

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