Philip Stittleburg shares his insights — as both an attorney and a chief — on what agencies should do in the event of a vehicle accident.
Philip Stittleburg entered the volunteer fire service in 1972 after working as a paid member of a combination fire department. He has been chief of the La Farge (Wis.) Fire Department since 1977. Stittleburg also is an attorney and has been FIRE CHIEF's legal columnist for more than 15 years.
Next month, Stittleburg will participate in a mock trial at the Fire Department Safety Officers Association's Apparatus Specification and Maintenance Symposium.
What should a chief do if a department vehicle is in an accident?
After the care of the patients, the first thing a chief wants to do is arrange an investigation by his own people. Obviously, law enforcement will do an investigation, but we want one also because we may be investigating things the police may not be looking at.
You want to appoint a competent lead for the investigation team. Not a lot of departments have that expertise. As an assistant district attorney, when a police vehicle is in an accident, the first thing that happens is we bring in a different law-enforcement agency to investigate that accident. A chief may need to go outside his department for that expertise.
You want your investigation team to take their own photos and measurements. If that's not possible, get the police reports. You also want your team to get witness statements. While these will be taken by law enforcement, they frequently are not as in depth as you'd like them to be.
In addition, you'll want to do drug and alcohol testing. The police may or may not have to be involved, depending on your state laws. In order to make sure you get drug and alcohol tests from your people, you're going to want to make sure you have a drug and alcohol policy in place [prior to an incident].
If your state does not require testing and there's no visible sign of impairment, and law enforcement can't require one because suspicion, you don't want your employee to refuse a test. The nice part of the testing is that it will show what you want it to show — no impairment — and that's exonerating and takes that off the table for you. So you aren't having this injured civilian saying that obviously your employees were impaired.
You want to make sure your vehicles have been inspected. Make sure you have good vehicle inspection records. If there is any question about a vehicle malfunction, impound the vehicle and get it inspected by either a mechanic or — if it's serious — it might be a reconstruction expert. You want to get that issue off the table, i.e., the brakes were inspected six months ago, and immediately after the accident it was inspected and the brake lines were still intact.
And get statements from your own people. If it's a serious injury or a death, it could be a crime. If it's a crime, the driver could refuse to speak to law enforcement. We need to make sure we have a policy that we can get statements from them.
Get ready to face the press, because they're going to be there. If you try and duck the press, it's going to make you look bad — like Tiger Woods. When you are facing the press, only give them the basics: the accident location, the vehicle, number of injured transported, discharged or still in hospital. Avoid giving any opinions or placing blame. Wait until the investigation is completed before any more comments. Assure the public that this incident will be completely investigated.
How can fire chiefs or officers best protect themselves if they think they might be in a position that could result in a lawsuit?
Make sure the municipality is going to provide an attorney. Occasionally, depending on whether they will or not, you may want to seek your own personal attorney. Most of these statutes are tied into scope of employment and scope of employment means you are acting within your assigned duties.
If you're sending an engine out to get a cat out of a tree and your governing body hasn't stipulated whether "good will" calls are something you are in a position to authorize, your municipality might say that it was not within your scope of employment to send that engine to get the cat out of the tree that resulted in the collision. Therefore, you weren't within your scope of employment, and the law states they have to provide defense and pay judgment for you doesn't apply.
How can a fire chief or officer best protect themselves if they think might be in a position which could result in a lawsuit?
There again, I think it's the scope of employment. I don't see people getting trouble with personal areas where they are working clearly within their scope of employment. It's when they are doing something else when it gets dicey. For instance, if you're pumping water out of people's basements or taking Santa down to town to hand out candy, those are things that are clearly not emergency responses. It can get very questionable if that is what the fire department is supposed to do. The problem is the governing body might not have authorized that service.
Where are fire chiefs most vulnerable? I think they are most vulnerable those areas where fire chiefs had the authority to order what they did. If they are authorizing good intent calls, they better have authority from their governing body to demonstrate that they have the authority to do that.
Some departments have the motto "Be nice" and have hauled boa constrictors to vets in their fire truck.
As long as they are authorized by their governing board to do that, that's great! I'm not suggesting people shouldn't do it, but they need to take that additional step to make sure their governing body authorizes it. I think it's an important thing for departments to be able to, for a matter of community pride, do those things.
Smoke detector campaigns — great example. It's not fighting fire and not an emergency. Is it important? I guess so. Go out on a campaign, locate a smoke detector badly and if there's a fire or a loss, if somebody says it wasn't installed properly, then the governing body states they didn't authorize the fire department to be putting out smoke detectors. It's easily handled to make sure they authorize these activities and it's important to do.
Chiefs don't usually are personally involved because that's what we're supposed to do. It's the "be nice" that get us into a spot.
What is the biggest legal challenge facing chiefs and/or officers today?
I think it's a more demanding public. We absolutely have a public that has become more litigious. They are expecting more and better service. They are expecting better outcomes than they have in the past. They now all have phone or video cameras and everything that goes on gets recorded, which frankly I think is better rather than worse. I'd rather defend something we screwed up on the facts, rather than have somebody give their version of the facts and why they think we screwed up. Show me the pictures. If we screwed, show me the pictures too because I don't want to rely on your rendition of whether you think we did it right or wrong.
I also think we're seeing less sympathetic juries than we have in the past, again relating to this more litigious society. More people are more willing to sue fire departments.
Is it a trend of a lottery mentality?
It's pulling the handle and coming up all sevens. It's like buying the winning ticket. Maybe it's the sign of my age, but it seems to be more and more of a society that has the philosophy that if something bad happens to me, it must be someone else's fault and someone else should make it right for me. That sentiment is becoming more prevalent. Based on the column I write for Fire Chief, it's getting easier and easier to find cases to write about because I see more of them out there.