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LIABILITY CONCERNS FOR TROY FIRE FIGHTERS August 2005.

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Presentation on theme: "LIABILITY CONCERNS FOR TROY FIRE FIGHTERS August 2005."— Presentation transcript:

1 LIABILITY CONCERNS FOR TROY FIRE FIGHTERS August 2005

2 Overview Firefighters can face tort liability lawsuits under state law or federal law or both. –Emergency drivers –Performance of job duties –Training, hiring, funding, etc. of Firefighters may also face criminal liability for their actions.

3 Emergency driving- Troy’s most likely cause of liability Due to the amount of driving necessary for the performance of duties- accidents caused while volunteer firefighters are responding to an alarm in their personal vehicles, or responding to an alarm in a City of Troy fire truck are most likely to lead to a lawsuit.

4 Michigan emergency driving cases Fiser v. Ann Arbor- (1983) –This case involved a police chase, but is also applicable to other emergency vehicles, including fire fighters. It was submitted to a jury to determine liability. Rainy day Driving up to 110 mph in a residential district Driving the wrong way on a one way street and other ignorance of traffic signals.

5 Michigan emergency driving cases Patzer- Involved an emergency vehicle that was driving only 25 miles per hour- and had the lights and sirens on- but the Court still submitted the case to a jury to determine liability- since the accident occurred during an intense snow storm.

6 Michigan emergency driving cases Terry v. Detroit (1997) –60 mph chase in a 25 mph residential zone –Parked cars were on both sides of the road –Lights and siren were not immediately activated –The police were chasing a stolen vehicle- which was not “an emergency” –This case was submitted to a jury for a decision

7 Factors considered in emergency driving cases In Fiser, the Michigan Supreme Court indicated that the following factors would be considered in determining liability: –Speed of pursuit –Area of pursuit (residential?) –Weather and road conditions –Presence of pedestrians and other traffic –Use or absence of lights and sirens –Reasons for the pursuit of the vehicle and whether emergent

8 Bottom Line in Emergency Driving Cases Even if you are likely to prevail- drive with due care and caution to avoid the experience of being named as a defendant in a lawsuit. –Lawsuits cause unnecessary stress –Lawsuits take a lot of your precious time and the time of your co-workers and supervisors –Plaintiffs in lawsuits are looking to disparage your reputation or challenge your performance

9 Procedure if a Lawsuit is filed If you are named as a defendant in a tort lawsuit, then the City Attorney’s Office will assume the defense of the case AS LONG as you were acting within the scope of your duties. The City would also pay any damage claims awarded if you were acting within the scope of your duties. If you were acting outside the scope of your duties- then you must hire your own attorney- at your expense- and must pay any resulting award or judgment.

10 Early dismissal of a lawsuit If you are acting within the scope of your employment, then an early dismissal of the lawsuit, based on governmental immunity, is likely. The earlier the dismissal- the less the inconvenience and expense.

11 Governmental Immunity Under state law, government employees, volunteers, and officers performing in the scope of their duties are shielded from civil liability for bodily injury & property damage (as long as there is no gross negligence that proximately caused the injury or property damage). Alex v. Wildfong- no gross negligence-and therefore no liability for a firefighter driving his personal vehicle in response to a fire alarm- and causing an accident.

12 Gross Negligence Gross negligence is defined as conduct so reckless as to demonstrate a substantial lack of concern for whether an injury will result. (Difficult standard to meet)

13 In the Scope of Duties Acting within the scope of duties means that there has been an accident (not intentional conduct). If you follow your training, then you should be immune. However, if you harm thru intentional actions- or contrary to your training- then you may be subject to personal injury and property damage liability.

14 Governmental Immunity The City of Troy may not be immune from liability if bodily injury or property damage results from the negligent operation of a motor vehicle that is owned by the City (doesn’t extend to your private vehicles). This is one of the narrow exceptions to the broad grant of governmental immunity. This exception is designed to be consistent with the Michigan no fault law.

15 Michigan liability lawsuits Frame v. Royal Oak Township Fire Dept. (2003) –Plaintiff tried to enter a burning house to rescue his daughter who was inside- but he was prevented by a sheriff’s deputy –Plaintiff’s daughter died in the fire –The Court held that the Fire Department was not liable- and dismissal was appropriate.

16 Michigan liability lawsuits Frame- continued –The Plaintiff in Frame unsuccessfully argued that the motor vehicle exception applied- but the Court held that since the fire apparatus vehicle was not being driven at the time- but only used as equipment- this exception to governmental immunity was not applicable.

17 Michigan liability lawsuits Frame- continued –The Plaintiff in Frame also unsuccessfully argued that the public duty doctrine required the Fire Department to attempt a rescue of his daughter. In order to be liable under the public duty doctrine- a Plaintiff must establish: Promises of municipal officials to take affirmative action A knowledge by the municipal official that the failure to take action will lead to harm Some direct contact between the municipal actors and the injured person Justifiable reliance that the municipal actors will take action

18 Michigan liability lawsuits Frame- continued –The Plaintiff in Frame also unsuccessfully asserted a federal claim under 42 USC Section 1983- municipality’s deprivation of property or liberty. Failure to extinguish the fire Failure to attempt to rescue Plaintiff’s daughter Failure to properly maintain the equipment Failure to train, supervise, and/or negligent hiring

19 Michigan liability lawsuits Downs v. Saperstein (2005) –Fire on the 8 th floor of an apartment building –Two people died from smoke inhalation- one person was severely injured by jumping –Chief was sued for wrongful death by Geoff Feiger for the alleged failure to insure that the equipment was working and was sufficient –Chief was dismissed- since he was not grossly negligent- and therefore was immune.

20 Michigan liability lawsuits Dean v. Royal Oak Township (2004) –Plaintiff’s 4 kids were in a house that was set on fire by arson- the kids died –The shift supervisor (the highest ranking official in the absence of a fire chief) chose a hydrant that was one block away- rather than a hydrant that was right in front of the house –The shift supervisor also directed that the hoses be directed to the front of the house- even though there was going to be a rescue effort at the back of the house to get the kids out. –The rescue was made impossible- since smoke and fire were forced to the rear of the house.

21 Michigan liability lawsuits Dean, continued –A state law wrongful death lawsuit was filed against the department and the shift supervisor –Federal claims under 42 USC Section 1983 were also filed- the deprivation of civil rights- based on the deliberate indifference to the risk of injury or death –A second federal claim under 42 USC Section 1983 argued the failure to adequately staff, fund, equip, train, and/or supervise. This claim was dismissed- since Plaintiff could not establish that the actions were tantamount to an affirmative intent to cause harm.

22 Michigan liability lawsuits Dean, continued –The state law claim was not barred by governmental immunity- since there was a question of fact as to whether the actions of the fire supervisor were grossly negligent. –As distinguished from other cases- the actions of the firefighters destroyed the last clear chance to rescue the children- which was the proximate cause of their death. –In January 2005- the Michigan Supreme Court granted leave to determine whether the actions of the fire fighters needed to be “the” proximate cause or “a” proximate cause.

23 Michigan liability lawsuits Under 42 USC Section 1983, there will not likely be liability unless there is a deliberate indifference to the risk of injury or death. In addition- there is no right to fire protection unless a person is in custody or has a special relationship. However, a nominal award of $1 will result in the imposition of attorney fees and costs.

24 Other types of Liability Firefighters may also be subject to criminal liability for their actions. Examples include: –Alcohol offenses –Assault and/ or battery charges (includes threats made against others) –Negligent homicide (driving offenses) –Unlawful harassment

25 Negligent Homicide In a very recent case, a Traverse City firefighter is facing two charges of negligent homicide, which is punishable by up to 2 years in prison. The fire truck that he was driving collided with an SUV, killing a female passenger and her 11 month old child, and seriously wounding the male driver. The driver (ironically the safety officer) went through a red light without stopping or slowing.

26 Rules of the Road Firefighters in authorized motor vehicles (includes firefighters’ private vehicles) can violate the statutory restrictions on other drivers- as long as: –Responding to an emergency call (not extended to the return trip) –Driving with due regard for the safety of others (Reckless disregard of safety of others may subject a driver of an emergency vehicle to criminal and/or civil liability) –Using both siren and lights to warn others

27 Rules of the Road Drivers of emergency vehicles can park or stand in thru lanes when responding to an emergency call Drivers of emergency vehicles can exceed the posted speed limits- as long as the driver does not endanger life or property of others. Drivers of emergency vehicles can disregard the regulations governing direction of movement or turning in a specified direction- as long as the driver does it safely.

28 Traffic Lights Drivers of emergency vehicles can also proceed past a red light or a stop signal or stop sign- BUT ONLY AFTER slowing down as “may be necessary for safe operation.” This was allegedly not done by the Traverse City fire fighter- which formed the basis of the criminal prosecution.

29 Duties of other drivers Other drivers are obligated to yield the right of way to emergency vehicles with lights and siren- and are obligated to get as close to the right curb as possible until the emergency vehicle passes. However, this is not always practical in a metropolitan area such as the City of Troy. Drivers of emergency vehicles are still obligated to drive with due regard for the safety of persons using the highway (pedestrians and other drivers).

30 Duties to other drivers When other drivers fail to comply with their statutory duties- this information can be reported to the police for follow-up. Avoid a road rage scenario.

31 Harassment and Discrimination Another type of liability results from unlawful harassment or discrimination. State and Federal Law prohibit harassment based on any of the following classifications: –Gender –Sexual Orientation –Race –Ethnic origin or nationality –Age –Handicap –Height/ Weight

32 Harassment Unwelcome activity –Supervisor- employee- Impacts hiring, promotion, work assignments, compensation Quid pro quo- “something for something” –Has the purpose of unreasonably interfering with a person’s job performance –Employee- employee- Creates an intimidating, hostile, or offensive work environment –Reasonable person standard- conduct undesirable and offensive (Joking intent not relevant)

33 Verbal Sexual Harassment Threats or insults; provoking remarks Use of foul or obscene language Offensive or suggestive comments Messages with sexual content Repeated pressure for dates Unwelcome propositions Gossip regarding one’s sex life Lewd or offensive jokes Whistles, cat calls, or sexualized name calling

34 Non-Verbal Sexual Harassment Offensive e-mail or voice mail messages Suggestive gestures or looks (elevator eyes) Staring or leering Displays of posters, photos, or drawings of a sexual nature Unwanted or offensive letters, poems, sonnets

35 Physical Sexual Harassment Cornering or trapping Pinching, grabbing, or patting Touching, hugging, or kissing Sitting or gesturing sexually Rape or attempted rape Similar off duty conduct that impacts the work environment

36 Supervisor Responsibilities If one of the volunteer fire fighters complains of harassment- you have to take it seriously If there are no complaints, but you are still aware of harassment- you have to take it seriously Don’t patronize or retaliate against the person who is complaining- refer them to the Chief- HR Director-Mgr-Atty- MI Dept. of Civil Rights Confidentiality must be respected Action should be taken quickly

37 Remedies for Harassment/Discrimination Lawsuit against the City who failed to take action and/or Lawsuit against the Supervisor who failed to take action and/or Lawsuit against the Harasser and/or Criminal liability for the Harasser Discipline for Harassment- including separation from City

38 Miscellaneous Even if you are not personally sued- you may be called as a witness in a civil suit. You may receive a subpoena or a notice of a deposition. Attorneys from our office are happy to accompany you- if you request it. Please be advised that any notes that you keep will likely be obtained in a civil suit. Please refrain from gratuitous or disparaging comments in logs or other notes. (Facts are ok vs. opinions) Please keep notes if there is any perceived liability of the City. Please let us know if a search warrant is recommended.

39 Closing Always remember that you are some of the best ambassadors of the City. Always treat people the way that you want to be treated. Please feel free to call our office with any legal questions or concerns that arise in your positions.


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