Not long ago, I was asked to speak to a group of training chiefs about liability issues associated with fire-service training. As I started to prepare the presentation, it became evident that two distinct topics would emerge. One topic involved liability issues directly associated with training, focusing on the types of lawsuits that have been filed for training-related activities. The other topic focused on the role that training plays in risk management by reducing the overall liability of the fire department. In this article, we will address both of these topics, as they interrelate in several ways.

As we begin this discussion, it is important to recognize that protecting ourselves from financial liability is not the sole reason, nor perhaps even the primary reason, that we should be concerned about legal liability. If fear of being held financially liable was our primary motivator, we could simply purchase more liability insurance. When we talk about reducing liability, we really are talking about taking steps to lessen the likelihood of an event occurring that could lead to a law suit. In other words, we are talking about doing things in a way that is safer for our personnel and the public. It means doing things right.

Of course, there are many people who won't do something just because it is the right thing to do, or because it is the safe thing to do. It could be a block-headed bean counter at city hall who cannot see the wisdom of investing money in a preventative maintenance program for apparatus. Or it could be a block-headed firefighter who refuses to don a high-visibility vest at the scene of a motor-vehicle accident on a highway. For them, God made lawyers.

Legal, Liability Risks

The liability associated with firefighter training is very much like the liability associated with any other aspect of our profession, with discrimination, harassment or negligence each playing a primary role — and, in some cases, intertwining. The most common lawsuits involving training are suits filed by students — or in the case of a fatality, by the deceased's survivors — against the instructors and the training academy. Of particular importance, there have been several lawsuits filed in the past 10 years involving students who allegedly were overheated and/or dehydrated. These include:

FDNY recruit Jamel Sears, who died of exhaustion, lactic acidosi and dehydration in November 2008, allegedly after participating in strenuous training that included wearing 100 pounds of equipment (including a weighted vest) and carrying a 100-pound dummy. His wife, an NYPD officer, claimed that when he collapsed, instructors initially told other recruits who went to his aid to leave him alone, that he would have to manage on his own. She sued for negligence and discrimination (Sears was African-American), and alleged that instructors were harder on him due to his race. The suit is pending.

Joseph Locasto, hired as a paramedic candidate by the Chicago Fire Department, participated in an intensive training program in May 2008 that included climbing stairs carrying two 25-pound bags, pull-ups, push-ups and running. He allegedly received only intermittent, brief fluid breaks. After two days of training, Locasto began to urinate blood and went to a hospital, where he was diagnosed with a condition caused by severe dehydration that led to kidney failure. He spent 15 days in the intensive care unit, and required several months of dialysis. The suit is pending.

Andrew Waybright, a trainee in Frederick County, Md., was participating in an outdoor workout in July 2002 that included a nearly 4-mile run. He collapsed and died, allegedly due to severe overheating. His family sued and settled for $300,000.

In June 2000, firefighter recruit Kevin Locke fainted from dehydration while on a ladder performing a simulated rescue carrying a 120-pound mannequin. He fell 50 feet and suffered permanent injuries. A jury returned a $1.8 million verdict against the city of Seattle for negligence.

Now, let's compare those four cases to one involving a claim of gender discrimination.

Recruit firefighter Michelle Maher quit the Fresno (Calif.) Fire Department's training academy in December 2005, alleging that she was the victim of discrimination. She claimed her instructors gave her low grades on physical tasks, told her the department did not want female firefighters — especially ones who were single mothers — and suggested that she give up custody of her children. A jury returned a $2.4 million verdict in her favor.

The point of reviewing these cases is not to suggest that the instructors or training academies did anything wrong. Rather, these cases point to the need to ensure that our training activities:

• 1. Meet the applicable standard of care, and
• 2. We can prove it to whomever asks.

That means we need to: have strong, up-to-date training policies and procedures; ensure that our instructors adhere to them; and document instructor compliance, as well as student performance. As an exclamation point, the FDNY and Fresno cases show the potential for poorly phrased or inappropriate motivational comments of drill instructors to paint a picture of a racially or sexually hostile environment, regardless of whether such hostility actually exists.

How do we establish training programs that meet the applicable standard of care? On the surface, that would seem to be a simple matter. The National Fire Protection Association's professional qualification standards are recognized universally as the gold standard in firefighter training. Numerous training and educational companies take the NFPA standards and convert them into lesson plans and delivery platforms that ensure our personnel will receive the proper content.

However, none of the cases mentioned above involved a problem with substantive content. The problem was not so much what the students were being taught, but how they were being taught. The NFPA professional qualifications standards themselves do not address how arduous or realistic training needs to be. It is up to each fire department and training academy to establish the limits of arduousness and realism to which firefighter recruits should be subjected.

If a department has not addressed the arduousness of a training program through a formal policy, then it has, by default, left it up to the instructors to decide what the standard should be. It can be argued that each of the above cases is an example of well-intentioned instructors pushing students too far. It also can be argued that the instructors were racist, sexist and/or incompetent. Neither situation is tolerable. Fire departments need to ensure their training policies and procedures address not only what the students are taught, but how the instructors are delivering the content.

In this regard, fire academies that utilize military-style drill instructors and techniques that berate, humiliate, and insult trainees — similar to the techniques used by the military — need to rethink that approach. From a liability perspective, civilian juries do not take into account the motivation of the harasser in a discrimination suit. A drill instructor who gets in the face of a female recruit and suggests that she quit if she can't take it, easily can be made to look like Attila the Hun before a jury — despite the fact that he treats every recruit the same way, and genuinely wants to see each recruit (including the female recruit) succeed.

If a fire department carefully considers the advisability of a military-style training program, and decides to use such a method despite the liability risks, then the department should formally adopt a written policy that acknowledges the purpose of, and need for, such a "tough love" program. The policy should provide responsible guidelines for instructors, and instructors should be trained in the guidelines so that none will operate unknowingly outside of the formally adopted departmental policy. Instructors should not have (nor should they be allowed to believe they have) carte blanche to menace recruits and, most assuredly, they need training and guidance on how far they can physically and emotionally push their students. There also should be a credible complaint process that students can use when they feel they are being unfairly harassed, including a method of complaining without fear of retaliation.

To defend ourselves from a negligence lawsuit, not only do we need to meet the standard of care, we have to be able to prove that we met the standard of care. That means documentation. The fire service has become quite good at tracking student performance, but we also need to consider documenting instructor compliance with safety and training policies.

Instructor checklists should be developed for hands-on evolutions and drills to ensure that the factors the department considers to be important are incorporated into the training regimen. For example, tracking details such as temperature and humidity can be used to calculate the maximum permissible work intervals based on NIOSH and OSHA recommendations regarding employee exposure to heat. Requiring such information to be tracked — in addition to whether the recommended rest and fluid breaks were given, the names of participating instructors and other similar safety-oriented factors — can help ensure compliance with the department's policies.

Due to the broad immunity protection that the fire service enjoys, many attorneys have found it advantageous to circumvent the law of negligence by alleging that personal injuries resulting from a fire department training activity constitute a civil rights violation. Federal law allows anyone who has suffered a constitutional violation at the hands of a government employee or agent to institute a civil rights action. The most likely civil rights violation to be alleged for a training-related injury is a denial of the victim's right to due process. There is no immunity protection for such civil rights violations.

To establish a due process claim under federal law for a training-related death or injury, the victim's attorneys must prove that the death or injuries resulted from the "deliberate indifference" of the instructors. The deliberate-indifference standard is a measurably higher standard than negligence. However, when training policies and procedures routinely are violated or ignored, or in cases where no policies exist and instructors are free to do as they please, plaintiffs are more likely to be successful in convincing a jury that an injury is the result of "deliberate indifference." The FDNY, Maryland and Fresno cases mentioned above included such allegations.

Risk Management

The other aspect of training liability we need to address relates to the role that training serves in helping to protect the entire department from lawsuits. Risk management is an all-encompassing activity that many modern fire service leaders have learned to leverage to their advantage. An effective risk-management program not only reduces the organization's liability exposure, it enhances firefighter safety. Training is a cornerstone of modern risk management, and serves as a fundamental risk-control technique.

Let's consider apparatus operations. The operation of fire apparatus universally is recognized in the fire service as a high-frequency, high-risk activity. In other words, it is one of those activities that we engage in frequently, and carries the potential to cause a great deal of harm if things go wrong.

Basic risk-management theory dictates that we address such high-frequency, high-risk activities as our first priority. How would we go about developing a plan for managing our risk from apparatus operations? Quite obviously, training is going to figure prominently as a risk-control technique. The specific details of our recommended course of action might include:

• Provide initial training for apparatus drivers on vehicle operations based on NFPA 1002, and ensure that documentation of that training is maintained permanently in each member's training file.
• Provide refresher training for apparatus drivers, and ensure that documentation of that training is maintained permanently in each member's training file.
• Provide training for vehicle maintenance personnel based on NFPA 1071, and ensure that documentation of that training is maintained permanently in each member's training file

If you can envision the items that likely will be identified by your fire department as part of a risk assessment, it should become apparent that training will play a critical role in risk management. Virtually every item that will be identified as a potential risk can be addressed to some degree through training.

Depending on how we conduct our risk assessment, we may discover that "failure to train" has become a specific item of risk concern. Allegations of such failure have become relatively common in risk-management circles, and can arise in numerous ways. For example:

• The widow of a firefighter killed in the line of duty sues the department, alleging that her husband was not properly trained in the use of his SCBA.
• A firefighter injured by the actions of a fellow firefighter sues the department for negligently training the co-worker.
• A homeowner upset about the damage that occurred to his home after a fire sues the fire department, alleging the firefighters were not properly trained.
• The family of a firefighter killed in the line of duty sues the department, alleging that the incident commander was not properly trained.
• A firefighter terminated for insubordination and cowardice for abandoning his crew at a fire defends himself by alleging that he was negligently trained.

Our training systems should be designed from the beginning with the thought that someone will seek to challenge each and every aspect of them. From the subject-matter content provided in each course, to the evaluation criteria for successful completion of the course, to the meeting of national standards, to the qualification of instructors, a fire department's record-keeping system should be designed to withstand any such challenges.

If our training-documentation systems are inadequate, our organization is legally at risk. Correcting that deficiency should become one of our top priorities, because failure to do so not only poses a liability risk to the organization, it also may cover up deficiencies in our training programs of which we are unaware. Every fire department should be able to produce training records that can refute all five of the hypothetical instances of "failure to train" listed above, for every member of the organization.

Training is a potential source of liability for fire departments, but it also is an important risk-management tool. Fire departments have done a good job of incorporating sound content into their training programs. However, we need to remember that it is not just what we teach, but how we deliver the content that is important. Additional attention needs to be focused on developing policies and procedures regarding how content is delivered, in order to better manage program delivery. Finally, fire departments need to ensure that they can document student performance and instructor compliance in training activities. The dividend will be fewer training accidents — and fewer law suits.

Curt Varone is the director of the fire-service division of the Legal & Liability Risk Management Institute. He is also practicing attorney licensed in both Rhode Island and Maine. Varone retired from the Providence (R.I.) Fire Department in 2008 as a deputy assistant chief and served as the director of public fire protection at the National Fire Protection Association. In 1997, Varone completed the Executive Fire Officer Program at the National Fire Academy, becoming the first person to receive four Outstanding Applied Research Awards. In 1998 he was awarded an Executive Fire Officer Fellowship to study advanced issues in state and local government at Harvard University's John F. Kennedy School of Government. He also has taught in the Executive Development program at the National Fire Academy.

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