Liable For Liability

Professor FossilMedic prepares an important lesson:  

THE IMPACT OF PERSONAL LIABILITY ON FIREFIGHTER SAFETY: 55 MILLION REASONS TO PROMOTE FIREFIGHTER SAFETY

As we approach Safety Week, I want to share a story on why personnel accountability systems were quickly implemented by many city fire departments in the late 1990s. I am using these examples not to belittle the fire department or bring pain to the survivors, but explain the circumstances that lead to a landmark judicial decision that may be repeated in your community.

A PATTERN OF UNACCOUNTABILITY

Seattle lost six firefighters from 1987 through 1995. The resulting fines from the Washington Department of Labor and Industries were to motivation Seattle to implement a firefighter accountability system. The issue was that excessive time elapsed before the incident commander was aware that there was a firefighter in trouble.

Firefighter Robert Earhart, Engine 10, was operating in the abandoned Crest Hotel on July 12, 1987. Transients squat in the Crest. Heavy fire on the lower floors and smoke filled the hotel. Earhart was found unconscious. He had gone to the top floor to open walls and check for extension. Cause of death was smoke inhalation.

Another arson killed Engine 20 Lieutenant Matt Johnson. A shed was torched adjoining the main building of the Blackstock Lumber Company. The first alarm was sounded at 9:21 pm on September 9, 1989. An accelerant quickly spread the fire into the main building, resulting in a fourth-alarm. Lieutenant Johnson and Firefighter Bill Meredith are caught in a flashover while operating an attack line in the main building. The flashover disabled the portable radio. Meredith stumbled outside of the building. Critically injured, he was unable to explain the inside conditions or location of Lieutenant Johnson. Lieutenant Johnson would not be found until hours after the fire was placed under control.

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The Washington State Department of Labor and Industry found the Seattle Fire Department negligent in SCBA training and tracking of fire crews at large scale operations. As part of the corrective action, the fire department purchased PASS devices, adopted an incident command system as well as a passport-style accountability system. Lieutenant Johnson’s family sued the city for negligence.

A HEAVY-HANDED CITY ATTEMPT TO LIMIT LIABILITY

While the Johnson lawsuit was progressing through the system, city attorney Mark Sidran successfully attaches a rider to an unrelated bill that strips firefighters and police officers hired after 1977 of their right to sue for negligence. That rider became a state law in 1993. A Court of Appeals ruling in 1999 overturned the law. Before the law was overturned, another judge would make a ruling in the third line-of-duty death fire.

Seattle handled two major fires on September 17, 1994. In the first, SFD found construction materials and debris burning on the top of a seven-story building. That fire was handled by a first alarm along with two additional engines, two additional ladder companies and the fireboat. One half hour later, units responded to a third floor apartment fire. It took a fourth alarm assignment to control the apartment fire. The state Labor and Industry received an anonymous complaint that the firefighter tracking system was not activated at the apartment fire until three hours into the event.

THE MARY PANG TRAGEDY

The worst was the Mary Pang Food Products fire that started January 5, 1995 at 7:03 pm. This block long frozen food plant and warehouse was another arson fire. After heavy streams darkened down the first floor, fire crews entered the structure. The basement was continuing to burn and destroyed a floor support beam. Lieutenants Walter Kilgore and Greg Shoemaker; Firefighters James Brown and Randall Terlicker fell into the basement when the floor collapsed. It took a fifth alarm assignment ten hours to place the fire under control. Firefighter Terlicker was the last firefighter removed shortly before seven pm, two days after he responded to the alarm.

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Another investigation by Labor and Industry resulted in another hefty fine. The widows and estates of the Mary Pang firefighters wanted to sue the city for negligence. You need to get permission from the court to sue the city or individual city employees. In general, fire officers are protected from such individual lawsuits due to the concept of sovereign immunity.

The judge looked at three factors:

1) This was the third fire in eight years where a firefighter died.

2) The multiple citations and fines assessed by the Washington State Department of Labor and Industry

3) The creation of an administrative law prohibiting police officers and firefighters from suing the city for negligence. While later overturned, this law was still in effect at the time of the sovereign immunity hearing.

JUDGE REMOVES SOVEREIGN IMMUNITY AND ALLOWS SFD OFFICERS TO BE SUED

Not only did the judge allow the city to be sued for negligence, the way was cleared to allow the individual fire department officers and administrators to be personally sued. Seattle Training Deputy Chief Stewart Rose said that fire officers were served with a total of $55 million in negligence lawsuits. As this information was spread, many metro-sized fire departments made establishing a firefighter accountability program a high priority.

WHY TALK ABOUT IT NOW?

Last week a Texas appeals court made a similar ruling that affects former administrators from Texas A&M University in the aftermath of a collapse of a 59 foot tall stack of logs that were to be used at the College Station campus as part of a long-standing homecoming bonfire ritual. Twelve students were killed and 27 were injured in the November 1999 incident.

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There appears to be a trend of the courts removing sovereign immunity to those who have a supervisory role in activities that are clearly hazardous to subordinates. A quote in the Chronicles of Higher Education article got my attention: “Darrell Keith, a Fort Worth lawyer who represents some of the plaintiffs in the Texas A&M case, said the defendant administrators were acting in their personal capacities when they loosely oversaw the bonfire construction.” Maybe it is time for company officers to stop the response of a rig until everyone is seated and belted.