Quick Take: Top 4 reasons fire departments get sued – and how to avoid them
Curt Varone and Billy Goldfeder outline the primary liability issues for career and volunteer fire departments
“The department is being sued.”
These words can send chills down the spine of any fire chief. Legal proceedings are expensive, time-consuming and emotionally draining. They can force leaders to delay department priorities and can have lasting effects on the department’s reputation. Even more importantly, a legal proceeding almost always means someone – a firefighter, the department, a citizen – has been harmed. Even “winning” a lawsuit by successfully defending the department doesn’t change that.
Considering these risks, you might expect fire service leaders to have an excellent grasp on why fire departments get sued. Yet fire department liability is not well understood.
During the webinar “Why Fire Departments Get Sued,” Lexipol consultant Curt Varone – a practicing attorney in Rhode Island and Maine and deputy chief for the Exeter (R.I.) Volunteer Fire Department as well as Lexipol Senior Advisor Billy Goldfeder, deputy chief for the Loveland-Symmes (Ohio) Fire Department – addressed the key reasons career and volunteer fire departments face legal proceedings, and offered best practices to help protect departments and firefighters from becoming involved in legal proceedings in the first place.
“We should look at liability the way we look at open-heart surgery. You don’t ‘win’ open-heart surgery, just like you don’t win liability in the fire service.” — Varone
“The fact is, the more people keep their heads in the sand about the unfortunate failures of volunteer fire departments to get out and do what they say they’re going to do, we’re going to see lawsuits.” — Varone
“It’s a three-legged stool. You need effective policies and procedures. Then you need to train on them. Then you need to have officers and leaders who hold folks accountable.” — Goldfeder
“The question I would have for chiefs and officers is: What are your policies? What’s your policy on driving? What’s your policy on operations? Now you’ve got to train like that, and on those policies and procedures. Otherwise you’re wide open.” — Goldfeder
“We need to work better on our human resources. We need proficient tacticians riding in the front seats of our companies. Unfortunately, we don’t see the value in providing the HR skillset necessary to deal with problems in the firehouse. There are both policy and training implications associated with this.” — Varone
Key takeaways: Primary legal concerns for fire departments
Varone and Goldfeder outlined the top four primary legal concerns for departments, divided between volunteer and career status.
Four volunteer fire departments legal concerns: Volunteer fire departments and firefighters are most likely to be involved in a court proceeding due to theft, negligence, arson and structure fires.
1. Theft (criminal): Nearly all the theft cases involve embezzlement of funds from the department. Volunteer fire department thieves typically start small. Once they realize no one is paying attention, the next theft is a little bit easier. The most common source of insider theft is the fire company treasurer, followed by the fire chief.
Some simple steps fire companies can take to prevent theft issues:
- Ensure all bank and financial statements are mailed to someone other than a person with check-signing authority.
- Ensure credit card statements are mailed to someone other than an authorized card holder.
- Prohibit anyone from writing a check to him or herself or a family member.
- Require two signatures on all checks over $500.
2. Negligence (civil): In general, negligence is the failure to exercise the care that a reasonable person would exercise under the circumstances that causes damages to another. Gross negligence refers to a gross deviation from the reasonable person standard. Both terms are used in the context of injury or harm to people or property.
Allegations of negligence can stem from a broad range of actions or inactions on the part of the department or the firefighter, but Varone’s research points to five critical operational policy areas for volunteer and career fire departments to focus on: apparatus safety, structure fire operations, technical rescue, SCBA/PPE use, and EMS.
Training is a critical preventive measure here. Training should be frequent, consistent with policy, and documented.
3. Arson (criminal): Fire service leaders have long lived with the knowledge that arson is a problem within the volunteer fire service. In some departments, fire-setting for purposes of responding and gaining experience has become an accepted part of the culture. Whether driven by boredom in departments that are not that busy, or to satisfy the craving for the adrenaline rush of a fire, firefighters who set fires without immediate repercussions often continue.
The National Volunteer Fire Council (NVFC) provides a comprehensive report on firefighter arson and strategies to prevent it, which include developing a zero-tolerance policy and performing criminal background checks on all volunteers. Review the best practices in the report.
“We need to differentiate between arson events that get everyone’s attention and the ones that are far more common – the ones where a departmental culture says it’s OK to set fires," Varonen said. "… It’s scary to consider that a department would allow someone found guilty of setting fires to come back. It sends a statement about what we’re willing to tolerate.”
4. Structural Fires (civil): Within the category of structure fires, we often see negligence or gross negligence claims.
The keys to managing structure fire liability are not that different from managing any kind of liability:
- Effective policies and procedures
- Training on the policies and procedures
- Effective supervision and documentation
Volunteer fire department leaders will be well served to focus on bolstering their efforts in these three main areas.
Four career fire department legal concerns: Career fire departments and firefighters are most likely to be involved in a court proceeding due to negligence, retaliation, racial discrimination and sexual harassment.
1. Negligence (civil): Negligence cases involving career fire departments are not that different from those involving volunteer fire departments. For this reason, the same preventive measures apply: comprehensive, well-written policies and procedures backed by frequent training. Both policy acknowledgment and training should be tracked and documented.
“Fire departments are getting sued for negligence for the most part: ‘You were negligent in fighting the fire,’ they allege," Varone said. "It’s not, generally speaking, because you didn’t get there faster or because you were understaffed. … Two themes stand out: water-supply problems and mistakes in dispatch. Either a wrong address or some other mistake from dispatching.
2. Retaliation (civil): It’s important to note the difference between retaliation and harassment or discrimination. Retaliation involves an adverse action that occurs after an employee has filed a harassment or discrimination complaint. Examples of adverse actions include reductions in pay, demotions, transfers, increased scrutiny, discipline or even hostile conduct by fellow employees.
Important preventive measures include:
- Start investigations promptly following any allegation of harassment, discrimination, or unsafe or unfair working conditions.
- Keep the identity of the accuser (and, if applicable, the accused) as confidential as reasonably possible throughout the complaint and investigation process.
- Do not reassign the firefighter bringing the claim unless the firefighter requests it.
3. Racial discrimination (civil): Preventing racial discrimination in the fire service requires the integration of culture, training, policy and supervision. Chiefs must ensure hiring, promotional and disciplinary practices are fair and consistent. There needs to be an unambiguous message of inclusion and support for diversity. Departments must establish clear anti-discrimination policies and ensure firefighters are trained on and understand them. Company officers must be trained to identify early signs of harassment and to intervene, as well as when to report the situation up the chain of command.
4. Sexual discrimination/harassment (civil): In the fire service, a male-dominated profession, it makes sense that most sexual discrimination and harassment claims are brought by women against men. However, we regularly see cases being brought by men who have been victims of harassment from both men and women. Furthermore, gay, lesbian and transgender firefighters are at risk of being harassed from colleagues of either gender.
There are several measures departments can take to reduce their liability associated with sexual discrimination and harassment:
- Ensure policies and rules prohibit sexually harassing behavior in addition to sexual harassment.
- Train all personnel on the policies and procedures, including what constitutes sexual harassment and sexually harassing behavior, at least annually.
- Promptly and competently investigate all allegations of sexual harassment and where appropriate discipline the offender(s).
- Track and document policy acknowledgments and training.
Underlying all the liability concerns facing both career and volunteer departments is the importance of policies, procedures and training. While these elements cannot prevent every instance of harm, and therefore will never prevent every court proceeding, they form a foundation for firefighters to act ethically and perform their jobs safely, within the best interests of their coworkers and the citizens they serve, knowing the department is committed to supporting and protecting them, too.
Download the Lexipol white paper “Fire Service Liability.”