Chapter 5 - EMERGENCY VEHICLE OPERATIONS
CHAPTER 5 – EMERGENCY VEHICLE OPERATIONS
Article 5-15
Article 5-14
VIDEO – STOPPING FOR EMERGENCY VEHICLES (MARCH 2010)
Video filmed by Ohio State Bar Association and posted on YouTube. Also, now posted on UC Fire Science web page: http://aerospace.ceas.uc.edu/FireScience - CONTINUING EDUCATION.
Additional videos will be posted; they will be based on seven articles written by Larry Bennett, and co-authored by Battalion Chief Wehmeyer, Deerfield Township Fire & Rescue, or Fire Chief (retired) William Kramer, in OSBA’s “Law You Can use” series. Articles are sent to by OSBA to Ohio newspapers and radio stations. http://www.ohiobar.org/Members/Pages/LawYouCanUse.aspx?kw=Bennett:
DRIVERS MUST STOP FOR FIRE TRUCKS AND AMBULANCES
KEEP DNR ORDERS WHERE EMERGENCY SQUADS CAN FIND THEM
OHIO LAW GOVERNS FIREWORKS
OHIO LAW SETS STANDARDS FOR DRIVERS OF FIRE TRUCKS AND AMBULANCES
QUICK CLEAR LAW SPEEDS VEHICLE REMOVAL AT ACCIDENT SCENES
UNDERSTANDING THE CRIME OF ARSON
WHAT YOU SHOULD KNOW ABOUT GAS STATIONS AND FIRE SAFETY
Article 5-13
OHIO – FATAL FIRE TRUCK ACCIDENT - LAWSUIT REINSTATED – DRIVER OF AERIAL ALLEGEDLY DID NOT SLOW DOWN FOR INTERSECTION WITH RED FLASHING LIGHT
On March 21, 2011, in Cynthia Anderson, Admin. Of the Estate of Ronald E. Anderson and Javarre J. Tate v. City of Massillon, Susan Toles and Rick Annen, the Ohio Court of Appeals for 5th District (Stark County), held 3 to 0 that Common Pleas judge improperly dismissed the lawsuit. This is a troubling decision, since it can influence other Common Pleas trial judges to not grant motions to dismiss or motions for summary judgment on behalf of operators of emergency apparatus involved in MVAs.
Aerial crash kills two
The FD was dispatched to a car fire, and since it was reportedly near a house, a ladder was also dispatched. The Court described the facts as follows:
“At 8:33:43 engine 214 left Station 1, operated by Firefighter Greenwood, commanded by Capt. Smith. Engine 214 proceeded down Erie Street to Walnut Street toward the dispatched location.
At 8:34:25, Ladder Truck 211 left Station 1, operated by Firefighter Susan Toles and commanded by Capt. Rich Annen. (Toles depo. at 131). Ladder Truck 211 began to follow the same route as Engine 214 toward the fire. (Toles depo. at 141).
A school bus yielded to Engine 214 at Third Street, then traveled down Walnut and through the subject intersection before Ladder Truck 211 appeared. The bus then pulled over east of the intersection as Ladder Truck 211 approached.
At the same time as Ladder Truck 211 was travelling eastbound on Walnut Street, SE, Ronald Anderson was travelling northbound on Johnson Street, SE, in Massillon, with his [4-year old] grandson Javarre Tate as a passenger in his vehicle.
Walnut Street is a two-lane road in a residential area. The intersection of Walnut and Johnson is a three-way stop, with a red flashing light for all traffic. A large tree was located on the corner of Walnut and Johnson, which, along with a utility pole, a fence, bushes and a house close to the street, Appellant claims obstructed a clear view of the intersection.
The posted speed limit in this area is 25 miles per hour.
Toles stated that she exceeded the speed limit, but described the emergency run as a ‘normal call, a normal run.’ (Toles depo. at 143).
As Ladder Truck 211 proceeded to the fire, a combination of the lights, wail siren and the air horn were engaged. (Toles depo. at 103). Additionally, Capt. Annen, who was seated in the passenger seat next to Toles, sounded the air horn at intersections. Id.
Toles stated that she could clearly see the intersection of Johnson and Walnut as she approached. (Toles depo. at 149). Capt. Annen stated that, although there is a tree at that intersection, one can see through the branches to the intersection. (Annen depo. at 82-84).
Toles recalled that when she saw the school bus pulled over on Walnut Street in her lane of travel east of the intersection, she slowed down in order to make sure there were no children on the street and that the school bus stop sign was not out.(Toles depo. at 150). Toles stated that after she determined that the school bus was yielding, she moved left of center because of the presence of a parked car and the bus. Toles stated that she scanned the entire intersection to make sure the intersection was clear and determined that there was no one in the intersection.” (Toles depo. at 155).
According to Toles, as she approached the intersection, she saw the Anderson van ‘shoot out in front’ of Ladder Truck 211. She stated that she began to move ‘immediate[ly] left even more, to try to avoid his vehicle and get around.’ (Toles depo., at 156). Just prior to the moment she saw the van pull out in front of Ladder Truck 211, Toles stated that she heard Capt. Annen say ‘he’s not stopping’. Id. Toles recalled seeing the Anderson van go ‘completely through the stop sign right in front’ of Ladder Truck 211. Id. Toles stated that she never saw the Anderson vehicle stopped at the stop sign. Id. Ladder Truck 211 collided with Anderson’s vehicle, resulting in the death of both Ronald Anderson and Javarre Tate.
Eyewitnesses stated that [ladder truck operator] did not slow down or stop before proceeding through intersection. (See Affidavits of Clark, Jackson, Green and Maroon attached to Plaintiff’s Motion for Partial Summary Judgment).”
Trial judge dismissed lawsuit
The trial judge dismissed the lawsuit on the basis of Ohio immunity statute for operators of fire apparatus: §2744.02 (b):
“(b) A member of a municipal corporation fire department or any other firefighting agency was operating a motor vehicle while engaged in duty at a fire, proceeding toward a place where a fire is in progress or is believed to be in progress, or answering any other emergency alarm and the operation of the vehicle did not constitute willful or wanton misconduct…”
Court of Appeals reverses; jury trial
The Court of Appeals reversed, referencing plaintiff’s allegation that the aerial operator did not slow down when approaching the intersection with the red flashing light Ohio Revised Code requiring emergency vehicle operators to “slow down as necessary” for stop signals or stop signs.
Ohio Revised Code §4511.03
“The driver of any emergency vehicle or public safety vehicle, when responding to an emergency call, upon approaching a red or stop signal or any stop sign shall slow down as necessary for safety to traffic, but may proceed cautiously past such red or stop sign or signal with due regard for the safety of all persons using the street or highway. (Massillon Ordinance 331 mirrors this language).”
The Court also referenced the plaintiff’s allegation that at the time of the crash the aerials was travelling “in excess of 50 mph in a 25 mph zone.”
The 3-judge Court concluded:
“Upon review, we find that at the summary judgment stage, we must assume such facts in favor of Appellant. Viewing the facts in this case in a light most favorable to Appellant, specifically the high rate of speed at which [Aerial operator] was traveling in conjunction with the claimed obstructions in the intersection which would interfere with a clear view of the whole intersection, we find that reasonable minds could find that [FD personnel’s ] actions in this case were reckless.
This ruling should not be interpreted to mean that we find the conduct herein was, in fact, reckless. Rather, we are holding that Appellant should have an opportunity to present her case to a jury to make such a determination.
Legal Lessons Learned: Slow down when approaching controlled intersections. This decision is unfortunate precedence in Stark County, and could influence trial judges in other Ohio counties to deny motions for summary judgment where there are substantial facts in question.
Article 5-12
OHIO: OHIO STATE BAR ASSOCIATION POSTS VIDEOS ON YOUTUBE - BASED ON “LAW YOU CAN USE” ARTICLES BY AUTHOR OF THIS NEWSLETTER, ALONG WITH CHIEF BILL KRAMER AND BATTALION CHIEF DOUG WEHMEYER
I have previously written seven “LAW YOU CAN USE” articles, co-authored by Fire Chief (retired) Bill Kramer, PhD, former Director of UC Fire Science, and Battalion Chief Doug Wehmeyer of Deerfield Township Fire & Rescue, OH. OSBA sent these articles to Ohio newspapers and radio stations: http://www.ohiobar.org/Members/Pages/LawYouCanUse.aspx?kw=Bennett
The articles are now being made into videos; here are the first two (we will also post copies on UC Fire Science web page, www.uc.edu/cas/firescience):
• STOPPING FOR EMERGENCY VEHICLES:
Videotaped at Deerfield Township Fire & Rescue, Ohio, Fire Station 58, along with Battalion Chief Doug Wehmeyer: http://www.youtube.com/watch?v=9O6DxV7YYGQ
• OHIO QUICK CLEAR LAW:
Also videotaped at Station 58, along with Fire Chief (retired) William Kramer: http://www.youtube.com/watch?v=H5aXP11PxNg.
Legal Lessons Learned: Fire & EMS departments are welcome to use these videos, but first confirm with legal counsel that they reflect the laws in your state.
Article 5-11
OHIO: EMEREGENCY VEHICLE OPERATION – POLICE AND MOTORCYCLE COLLISION – DEPUTY SHERIFF AND HAMILTON COUNTY DISMISSED SINCE NO EVIDENCE OF WILLFUL OR WANTON MISCONDUCT
On Dec. 31, 2009, in Jeffrey S. Whitey and Lora A. Whitley v. Progressive Preferred Insurance Company, et al., 2009-Ohio-6983, Court of Appeals for 1st District, Hamilton County, affirmed (3 to 0) the dismissal trial judge’s granting summary judgment for both the police officer and for Hamilton County.
Mr. and Mrs. Whitney were both seriously injured when the motorcycle they were riding collided with the cruiser operated by Deputy Sheriff Larry Henderson, Hamilton County Sheriff’s Office. Jeff Whitney was operating the motorcycle, with his wife behind him as a passenger, and they came to a stop at a red light on Fields-Ertle Road at the intersection with Mason-Montgomery Road. When the light turned green, they proceeded through the intersection. Deputy Henderson was responding to an emergency call assigned to his unit [Court does not describe nature of the call].
The Court described what occurred as Deputy Henderson was travelling north on Mason-Montgomery Road, intending to turn left onto Fields-Ertel Road:
“Henderson entered the intersection against the red light, but he could not see all the lanes of oncoming traffic. He estimated he was travelling from 20 to 30 m.p.h. Witnesses testified that he did not have his siren on when entering the intersection, but that his lights were activated. While he was in the intersection, the Whitleys’ motorcycle collided with his cruiser’s left front fender, sending the Whitleys flying.”
The trial judge granted the motions for summary judgment filed by Deputy Henderson and by Hamilton County. The Whitleys filed an appeal, arguing that Deputy Henderson violated Ohio Rev. Code 4511.03, which requires the driver of a public safety vehicle, when responding on an emergency call and approaching a red or stop signal to “slow down as necessary for safety to traffic” and to “proceed cautiously past such red or stop sign or signal with due regard for the safety of all persons using the street or highway.”
The Court of Appeals, however, held that the trial judge properly dismissed Deputy Henderson and Hamilton County from the lawsuit:
“The facts in this case are very similar to those in Herweh v. Bailey [(1966), 1st Dist. No. 960177]. In that case, we held that the failure of a driver of a public safety vehicle responding to an emergency call to comply with the requirements of R.C. 4511.041 [use lights and siren] was not per se willful and wanton misconduct. ‘A driver of an emergency vehicle does not automatically lose immunity under R.C. Chapter 2744 by failing to activate the vehicle’s lights or siren on an emergency run.’ Instead, the officer’s failure to use a signal or lights was one factor for the court to consider in determining whether the officer’s conduct was willful or wanton.” [Footnotes omitted.]
The Court of Appeals said Deputy may have been negligent:
“We agree with the trial court that even with the facts construed in the Whitleys’ favor, Henderson’s conduct, which may have been negligent, did not arise to the level of willful and wanton misconduct as a matter of law. The record does not demonstrate that he had an intent, design, or purpose not to perform the duty of care owed.
***
Even Linda Warner, the witness whose testimony was the most supportive of the Whitleys’ position, stated that while she did not feel that Henderson entered the intersection ‘with caution,’ he did not ‘fly out, like come flying through there.” She stated that when he was in the intersection, he seemed to realize a collision was going to occur and tried to avoid it. She described his conduct as ‘human error.’
‘Human error’ might mean negligence, but it did not constitute willful or wanton misconduct.”
Legal Lessons Learned: Identify as many witnesses as possible after an accident. In addition, FDs should consider adopting SOG requiring a FULL STOP at all red lights and stop signs.
Article 5-10
OHIO – EMERGENCY VEHICLE OPERATION – POLICE CRASH INTO MOTORIST – CITY NOT DISMISSED FROM LAWSUIT SINCE NOT CLEAR THAT LIGHTS AND SIREN WERE ON AT TIME OF CRASH
On Jan. 21, 2010 in Bessie Malone v. Jose Torres, et al, 2010-Ohio-157, Court of Appeals of Ohio, 8th District, Cuyahoga (2 to 1) held that the trial judge properly refused to grant the City of Cleveland’s motion for summary judgment because there is conflicting evidence on whether lights and siren were activated. That issue must be decided by a jury.
Plaintiff was a passenger in her own car, returning from church the evening of Dec. 14, 2005, stopped at a red light in the Village of Bretenahl, when a police cruiser driven by City of Cleveland Officer Jose Torres slammed into the side of her vehicle and injured Ms. Malone. Her car was being driven by her sister, Dorothy Small. At about 9:20 pm they had stopped at a red light near the Interstate 90 eastbound ramp. When their light turned green, Ms. Small proceeded straight ahead, intending to turn onto the I-90 entrance ramp. The radio was not on in the car, neither was using a cell phone, and neither ever heard any siren.
The Court described what next occurred:
“Suddenly, a Cleveland police car, driven by Torres and travelling at a high rate of speed, speed through the red light at the intersection. The police cruiser struck Malone’s vehicle. Torres claimed he was chasing a suspect who allegedly exited Interstate 90 off the ramp where Malone has stopped at the red light.
However, Torres failed to follow procedure and inform anyone of the chase or the suspect with his radio. In addition, the City failed to provide any corroborating witnesses, other than two fellow police officers from the village of Bratenahl, who later came to the scene. The two fellow police officers made their reports after hearing the accounts only of Torres and Officer Claudio (‘Claudio’), Torres partner.”
After pre-trial discovery, the trial judge granted Officer Torres motion for summary judgment, but refused to dismiss the City of Cleveland. The city took an immediate appeal under Ohio Rev. Code 2744.02(C).
The Court of Appeals agreed with the trial judge:
“For example, Malone and Small testified [in their depositions] that no vehicle traveled through the intersection immediately before the collision; however, Torres and Claudio testified they were chasing a suspect vehicle through the intersection. Moreover, there is also a major question of fact remaining as to whether of not Torres activated the lights and sirens on his police car before colliding with Malone’s vehicle.
The question as to whether a particular situation constitutes an emergency call is a question of fact. Horton v. Dayton (1988), 53 Ohio.App.3d 68, 558 N.E.2d 79. In this case, the evidence is conflicting with the absence of independent collaborating evidence of the events immediately preceding the collision. As such, this issue centers on the credibility of the witnesses and is not properly considered on summary judgment.”
The one dissenting judge would have dismissed the City of Cleveland, based on Ohio Supreme Court’s 2003 decision in Colbert v. Cleveland, 99 Ohio.St.3rd 215, 2003-Ohio-3319, where police just witnessed a drug deal in a high-crime area, and the police had an accident while following the drug dealer’s vehicle, without activating their lights and siren. The Ohio Supreme Court held that the sovereign immunity provided in Ohio Rec. Code 2744.01(A) for responding to an “emergency call” is not limited to only calls involving use of lights and sirens. Immunity also applies to other situations where, in the words of the dissenting judge, “response by police is required by the officer’s professional obligation.”
Legal Lessons Learned: This police officer was fortunate to be dismissed from the lawsuit, in light of his apparent failure to notify dispatch he was in a pursuit. FDs and EMS should follow their protocol on use of lights and siren. If you are involved in an accident on an emergency response, keep the siren activated when you call dispatch (that tape recording can save a lot of litigation).
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.
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Posted by UC solely as information and for the benefit of students.