Chapter 4 - INCIDENT COMMAND; TRAINING
Article 4-11
MINNEAPOLIS: I-35 BRIDGE COLLAPSE – BREACH OF INCIDENT COMMAND SECURITY - AN ENGINEER ENTERED THE SECURED AREA, DISRUPTED OSHA MEETING AND WAS ARRESTED - HIS CIVIL LAWSUIT FOR FALSE ARREST / DEFAMATION IS DISMISSED: QUALIFIED IMMUNITY / LAWFUL ARREST / PIO PRESS CONFERENCE
On Aug. 22, 2011, in Timothy Galarnyk v. Tom Fraser, Mike Martin, et al., U.S. District Court for District of Minneapolis, 2011 U.S. Dist. LEXIS 93794, the federal District Judge granted the motions for summary judgment Trooper Tom Fraser, MN State Patrol, and by Minneapolis police officer Mike Martin.
The plaintiff, an engineer who had been on local and national TV discussing possible causes for the bridge collapse, was arrested after entering the Incident Command area without permission, and disrupting a meeting at the OSHA trailer.
The Court described the arrest by MN State Patrol:
“Galarnyk is a bridge and construction safety expert with twenty-nine years of experience in the field. (Affidavit of Timothy G. Galarnyk, Jan. 19, 2011 (hereinafter "Galarnyk Aff."), Ex. 2 ¶ 2, Docket No. 101.) On August 1, 2007, when the I-35W bridge collapsed in Minneapolis, Galarnyk was contacted by several news stations to offer on-air opinions about the cause of the collapse, which he did the following day. (Dep. of Timothy G. Galarnyk, (hereinafter "Galarnyk Dep."), Ex. 1 at 40-41, Docket No. 101.)
On August 2, 2007, Galarnyk went to the collapse site, wearing a reflective vest bearing the name of his company, Construction Risk Management. (Galarnyk Aff. ¶ 6.) The collapse site command area on that date was not secured with fencing so he was able to drive into the area, located by the Red Cross building. (Id. ¶ 5.) He met defendant Timothy Fraser, a Captain with the Minnesota State Patrol, explained his expertise, and gave him his card. (Galarnyk Dep. at 46.)
At or around the same time, Galarnyk obtained copies of the inspection reports regarding the bridge from the Minnesota Department of Transportation (‘Mn/DOT’) and began appearing as a guest on numerous talk shows expressing critical views of Mn/DOT and the handling of bridge inspections prior to the collapse. (Galarnyk Dep. at 54-55.) 1
1 Galarnyk recalls appearing on the following programs: FOX news television, August 2 (morning and evening appearances); CBS radio program, August 2; Geraldo Rivera Show, August 5; CNN and FOX News, August, 6; Al Jazeera Network, date unknown. (Galarnyk Dep. at 45, 54-55.)
Galarnyk returned to the collapse site on Thursday, August 9. … On his way out of the NTSB trailer, Galarnyk passed the Occupational Safety and Health Association (‘OSHA’) trailer and witnessed a meeting in progress. (Galarnyk Dep. at 72.) He admits to entering the trailer and interjecting himself into an ongoing meeting without invitation. (Id.) He also admits to challenging the individuals in the meeting and being told to leave by Mark Hysell, OSHA Director for the Northwest area of Wisconsin. (Id. at 75.) Hysell states that Galarnyk was being disruptive, raising his voice, and that he was not authorized to be in the secured area. (Aff. of Mark Hysell ¶ 10, Dec. 8, 2010, Docket No. 96.) According to Hysell, a Mn/DOT employee went to the State Patrol command office and asked for assistance with Galarnyk. (Id. at 12.)
Galarnyk left the OSHA trailer and got into his truck. (Galarnyk Dep. at 76.) Fraser and another State Patrol officer knocked on his window and told Galarnyk to get out of the car. (Id. at 78.) Galarnyk complied and was taken to the Minneapolis Police Department (‘MPD’) command post and then into custody. (Id. at 79-83.) Galarnyk does not know the officer who actually arrested him. (Id. at 83.) He alleges that Fraser stopped him illegally and ‘caused’ his arrest. (See Compl. ¶ 65, Docket No. 13.)”
Captain Mike Martin, Minneapolis Police PIO – Press Conference
“While Galarnyk was in police custody, defendant Mike Martin, a Captain with the MPD, gave a press conference regarding the collapse and security issues at the site on the day of Galarnyk's arrest. *** Martin announced to the press that an individual had been taken into custody for questioning. (Id.) He further cautioned that anyone coming to the scene to capitalize on the situation would be discredited such that they ‘won't have the credibility to sell Girl Scout cookies. . . . [I]f you are . . . the best consultant . . . we will call you if we need you. Don't call us.’(Id.)”
False arrest lawsuit dismissed; Trooper Tom Frazer had probable cause, and also protected by qualified immunity:
“ Here, the parties do not dispute that Fraser only stopped Galarnyk after he was alerted to the disturbance Galarnyk had caused in the OSHA trailer. Since Galarnyk's actions support probable cause, as detailed below, they also support a reasonable suspicion since the latter is a lesser standard. See, e.g., United States v. Arvizu, 534 U.S. 266, 273 (2002). Since the Court finds no constitutional violation in Fraser's stop of Galarnyk, it need not determine whether the right was clearly established at the time. … As a result, Fraser is entitled to qualified immunity on the unreasonable stop claim. *** [T]he Court determines that Fraser had probable cause to effectuate the arrest of Galarnyk, making his purported motive for the arrest immaterial. Galarnyk admits he was in a secured area without authorization and was disrupting official meetings in the midst of an emergency scene. *** The Court therefore finds that Fraser is entitled to official immunity on the state law illegal stop and false arrest claim.”
Defamation lawsuit dismissed; Captain Mike Martin, PIO officer he has absolute immunity.
“In Minnesota, for a statement to be defamatory, Galarnyk must show that Martin made ‘(a) a false and defamatory statement about [Galarnyk]; (b) in unprivileged publication to a third party; (c) that harmed [Galarnyk's] reputation in the community.’ Weinberger v. Maplewood Review, 668 N.W.2d 667, 673 (Minn. 2003). However, since Martin was MFD's media representative, his statements are protected by absolute immunity.
Legal Lesson Learned: At a major incident such as I-35 bridge collapse, set up a secure Incident Command area, cordon it off, and caution the public (including those with official-looking jackets) that entering without authority can result in their arrest.
Article 4-10
VA: LAWSUIT MAY PROCEED AGAINST FIREFIGHTERS - VICTIM HAD CALLED 911 AND REPORTED HER LOCATION IN THIRD FLOOR BATHROOM – “PUBLIC DUTY DOCTRINE” NOT RECOGNIZED IN VIRGINIA TO PROTECT FIREFIGHTERS FROM LIABILITY
On Dec. 29, 2010, in Andrew Chiles, et al. v. Melvin M. Dunn, Jr., et al., Case No. CL-2009-7555, Circuit Court of Virginia, Fairfax County, 2010 Va. Cir. LEXIS 210, the trial judge denied the firefighters’ motion to dismiss.
The Court described the allegations in the civil complaint.
“On May 23, 2007, Debra Chiles died in a fire in her Fairfax County townhouse. Chiles called 911 to report the fire and told the dispatcher that she was in the third floor bathroom. Team 419 of the Fire Department arrived seven minutes after Chiles' call. After the firefighters arrived they did not reach the third floor for nine minutes. The firefighters twice unsuccessfully searched for Chiles in the townhouse. The parties dispute whether Team 419 ever searched the third floor bathroom.
Team 435 arrived at the scene shortly after Team 419. Team 435 did not find Chiles. Forty minutes after Team 419 arrived, Team 422 arrived at the townhouse. A member of Team 422 searched the third floor bathroom and found Chiles dead on the bathroom floor.
Andrew and Aaron Chiles ("Plaintiffs"), Chiles's sons, were appointed co-administrators of their mother's estate and brought this suit. The original Complaint, filed against several hundred members of the Fire and Rescue Department on May 22, 2009, alleged wrongful death arising from the fire. The Complaint also alleged that the teams of firefighters unsuccessfully searched for Chiles. The Amended Complaint reduced the number of named Defendants to thirty-nine and added allegations that the firefighters were grossly negligent in searching for and failing to find Chiles, not searching for her at all, or abandoning her after finding her alive.
On May 20, 2010, Defendants demurred to the Amended Complaint on the grounds that (1) this Court should extend the public duty doctrine to immunize the firefighters from Plaintiffs' suit; and (2) the Amended Complaint failed to state an adequate cause of action for gross negligence.”
The trial judge held that neither the Virginia legislature, nor the Virginia Supreme Court, has extended the “public duty doctrine” to protect firefighters from liability.
“However, there is no basis in law to extend this reasoning to Virginia, as the Virginia Supreme Court has limited the application of the public duty doctrine to cases involving a duty to protect from the criminal behavior of a third party. Whether the scope of the public duty doctrine should extend to firefighters is a decision that should be made by the General Assembly or the Supreme Court of Virginia--not this trial court.”
The trial judge also held that even if the “public duty doctrine” was extended to firefighters n Virginia, in this case the lawsuit could still proceed against the firefighters becuae they had a “special duty” towards the 911 caller.
“Notwithstanding my reluctance to expand the public duty doctrine, I nevertheless consider what would happen if the doctrine applied in this case. If the public duty doctrine applied, the next step would require a showing that the firefighters owed a special duty to the decedent. Burdette, 244 Va. at 313. A special duty arises when the officer is in a proximate relationship with an identifiable person or member of an identifiable class of persons, as opposed to the public at large. Marshall, 239 Va. at 319; see also Burdette, 244 Va. at 313 (holding that the deputy owed special duty to the plaintiff because he knew that the plaintiff was being assaulted and he had the capability to defend her). In the present case, the Amended Complaint clearly alleges that Defendants knew that Chiles was trapped in the bathroom on the third floor of her townhouse because she identified her location to the 911 dispatcher. Further, the Amended Complaint states that Defendants either reached the bathroom in question but could not find Chiles, or found and abandoned her, even though Chiles' body was discovered later in precisely the same place where Defendants claimed to have looked.
Thus, because Defendants knew where Chiles was located and could conceivably reach and enter the third floor bathroom, they were in a position to save her. The closeness between Defendants and Chiles is akin to the relationship the deputy defendant and the plaintiff had in Burdette. Consequently, sufficient facts exist to hold that Defendants owed a special duty to Chiles.”
Legal Lessons Learned: Pre-trial discovery, including depositions of the responding firefighters, may now proceed. At the close of discovery, the firefighters may file a motion for summary judgment seeking dismissal from the case, or the insurance company for the FD may negotiate a settlement.
Article 4-9
NATIONAL FIRE ACADEMY – FESHE – VIDEOS IN HIGHER EDUCATION
The author of this Newsletter has been invited to give a presentation at the National Fire Academy’s annual FESHE (Fire & Emergency Services Higher Education) conference, June 4, 2010 concerning the use of videos in higher education.
See the following videos, which are now posted on UC Fire Science web page: www.uc.edu/cas/firescience - Video Seminars Now Online:
• Mock Suspension – Lt. with alcohol on his breadth (May 2010);
(Note: Fire Chief Bill Kramer, former Director of UC Fire Science, plays role of the Fire Chief.)
• Ohio Quick Clear Law - filmed by Ohio State Bar Association (April 2010);
• Stopping For Emergency Vehicles – filmed by Ohio State Bar Association (March 2010);
• Mock Trial – Improved EMS Run Reports / Patient Refusal – filmed at Cincinnati FD (Feb. 2010);
• Firefighter Cancers / Wellness (July 2009).
Next video: Smoke Detectors – Ionization versus Photoelectric
On June 28, 2010, UC Fire Science will be hosting and videotaping a seminar, which will include a round table discussion by members of the Hamilton County Fire Chiefs Association. See April 2010 position paper by the Southwest Ohio Fire Safety Council, posted at www.uc.edu/cas/firescience - Smoke Detectors Seminar.
Legal Lessons Learned: Videos can be a very effective method to educate firefighters and EMS, particularly if the videos address current issues.
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.