Increasingly throughout the nation, lawsuits are being filed against fire departments and against incident commanders personally, alleging violation of federal constitutional rights (42 U.S.C. 1983) for failure to follow safety policies.

For example, in 2003 a federal judge in the District of Columbia ordered an incident commander and other officers to stand jury trial in a lawsuit filed by the estates of two D.C. firefighters killed fighting a townhouse fire, as well as two firefighters injured in that fire, Estate of Anthony Phillips, et al v. District of Columbia, Civil Action No. 00-1113. The lawsuit alleges that even though the incident commander lost radio contact with the firefighters, who were conducting a primary search of the first floor of the townhouse (fire was in the basement), the incident commander authorized the aerial truck company to ventilate the roof.

The federal judge refused to dismiss the case on the basis of governmental immunity: “According to the plaintiffs, whose statements the court must accept as true for purposes of the present motion, the named defendants ‘either committed, or by virtue of the policy of the D.C. Fire Department allowed, or established an operational environment that enabled, numerous violations of the mandatory Standard Operating Procedures to occur at the Cherry Road Fire …’ ” (See page 23 of the Court order of March 31, 2003, www.dcd.uscourts.gov/00-1113.pdf; see also the NIOSH Firefighter Fatality Investigation Report 99F-21, www.cdc.gov/niosh/firehome.html).

From a legal prospective, a countywide Rapid Intervention Team training program, such as that implemented recently in Warren County, Ohio, supported by experienced incident commanders, helps reduce the risk of LODDs as well as the risk of litigation.

I want to close with two recommendations on reducing firefighter LODDs:

• Fire chiefs should specifically assign an officer on their department (such as the training officer) to read every NIOSH Firefighter Fatality Report, and to prepare a one-page summary of “lessons learned” that can be distributed, and if relevant, incorporated into your department’s training and SOGs.
• NIOSH should establish a “Rapid Response Team” (similar to FAA aircraft crash team, it would include fire industry representatives with incident command experience) that can quickly respond to firefighter LODDs and rapidly put on the Internet a videotape of the scene, with preliminary comments about the lessons learned. Fire & EMS nationwide could quickly pick up lessons learned from these “reality” videos.
  

Larry Bennett, Esquire, is general counsel for the Warren County Fire Chiefs. He has served 22 years as a part-time firefighter and EMT, is an active member of the Southwest Ohio Critical Incident Stress Management Team and frequently writes about legal issues for Fire Chief magazine.

Related:
Countywide RIT Training Puts LODD Initiative Into Action
National Fallen Firefighter Foundation, Life Safety Initiative
Free Slides Offered as Safety Reminders