The legal definition of fire department malpractice is “the standard by which the performance of a fire command officer will be judged by the standard of ordinary care used by a reasonable person possessing the skills used by a person in the fire service profession.” Fortunately many chief officers and young line officers take their profession seriously, taking a lot of time and effort to perfect the many facets of being a command officer. As the years go by, however, some of these once self-motivated command officers become complacent. They do not keep up with practicing the necessary command skill sets required of them.

Many of these officers are protected by workers' compensation immunities from firefighter civil action against them. In other words, firefighters can't sue each other when accidents or events occur within the course and scope of employment. Third parties can bring civil action, but usually with state law limitations. Many states have some type of state governmental immunity statutes that provide protection to command officers from civil suit as long as they are giving their commands within the course and scope of their employment.

One exception to this rule is a command malpractice claim based on Federal Civil Action 1983, in which a pattern of extreme indifference that violates the citizens' rights through practices that are grossly negligent and shocking to a juror's conscience can be shown. Another exception is criminal charges against a command officer, where a prosecutor can show a command officer acted with extreme indifference or depravity of concern for another person's life, whether intentionally or recklessly.

Recently a number of cases have been in the news about command officers being criminally charged for failure to oversee, supervise and/or control high-risk training activities of the fire personnel under their direct supervision. Criminal homicide and manslaughter charges are becoming more noticeable. Personal costs to defend against these actions are significant and, regardless of the outcome, such charges are detrimental to the officer's career. Obviously, if the officer is found guilty, he or she could receive jail time, receive fines, incur costs and expenses, and possibly lose his or her pension and career.

The most recurring breaches of the standards of care required of a professional fire officer include:

1. Failure to use or to delegate to competent people specific high-risk tasks.

2. Failure to ensure specific risks for any tasks are properly mitigated, managed or eliminated.

3. Failure to properly supervise and/or train personnel under an officer's command.

4. Negligent hiring and/or retention of persons who aren't properly suited for the jobs assigned to them.

5. Failure to use the due care expected of a fire command officer of equal years of experience, training and education who would have acted prudently under similar circumstances.

Lawyers on the other side of the case will hire experts of similar background who will identify each “safety precaution” or “best practice” that wasn't followed, such as referencing various professionally recognized standards, as well as common-sense violations. These cases usually are fought to a draw, one side's expert versus the other's.

Where the boat takes on water is when the target chief officer's own words and explanations are used against him or her. A good trial lawyer will seek facts that hurt the chief officer. Many times, the command officer's incident reports, public explanations, radio communications (or mostly lack of them), and lengthy depositions are the first places attorneys look. Write-ups on trip sheets and reports are set. It's at the deposition that the command officer relies on training, education and experience to explain what happened and the process of how it happened. The ability of the chief officer to place the entire circumstance in context will win or lose the case.

I've seen many tough cases turn positive when the chief officer was able to explain in a professional voice not only what and how the incident happened but also why certain better practices couldn't have been used or weren't applicable. If the chief officer projects honesty and understanding of the circumstances, he or she usually will be vindicated.

Lawyers also will seek evidence of any differences in the description of events. Do the chief officer's incident reports and deposition statements match firefighters' accounts? Many times the troops have vivid, less-than-flattering recollections of events and are quick to point out inconsistent and non-standard-compliant actions that placed their safety at risk. They also are quick to point out the number of attempted discussions or notices that they gave to people in the chain of command about certain specific patterns of action or command officers' shortcomings. This would include any informal discussions between firefighters and those anywhere in the chain of command.

These types of notices of performance deficiencies are considered legal notice to the organization. It would be no different than someone complaining about sexual harassment to any command officer. Notice to the command structure is notice to the corporation and notice to the municipal agency is considered notice to the fire company/department. (This does not apply to volunteer/incorporated fire companies.)

These reports also are fertile ground in determining what a chief officer's major deficiencies are in legal and leadership practices. Does the leader adequately address inappropriate actions or behavior appropriately to change a similar future outcome? For example, does a chief officer consistently order an aerial water stream to be placed in a multi-story building's window of a fully involved room-and-contents fire when:

• There were interior mask operations occurring on that same floor, or
• There was a reasonable likelihood of live civilians being found on the floor?

Even if the direction was caused by other firefighters, did the command officer take appropriate action to change that behavior? Possible actions could include everything from personal counseling to mandatory fire behavior tactics training, to mandatory time off to possible termination. In other words, lawyers will look for a pattern of blind spots that chief officers have for similar types of behaviors and actions by firefighters under their control or even by the chief officers themselves.

The next big area that lawyers like to explore is the chief officer's training and educational blind spots. Does the command officer spend most of his or her time teaching or instructing and little time in the field? Does the chief officer — and the fire department for that matter — require continuing education and time for pertinent, professional and tactical advanced tabletop exercises? While seminars can be interesting and thought-provoking, the lack of table-top exercises and actual time-compressed simulated drills lessens the professional values of seminars and lectures. Command officers' continuing education needs to articulate operational benchmarks that are relevant not only to the circumstances in the case but also to other instances.

Lastly, lawyers will look to see if a chief officer recognizes or has an understanding of various authoritative texts. This usually is a tell-tell sign of whether the chief officer is keeping his intellectual fire operation understandings sharp and focused.

Much is expected of command officers. That is why command officers accept the job and the good ones step forward. Chief officers must be vigilant to surround themselves with dynamic, vigilant and honest officers who share their vision. Each officer should add value to the organization and to the job functions which they are assigned. As my chief, Ed Hutchinson, always tells me: “If you are not moving, you're rusting.” If you as a chief officer aren't engaged and moving through the professional waters looking for a better understanding of the fire service, the heads-up display on your figurative SCBA will soon change from blinking yellow to red. Your fire troops deserve better and you deserve better.

Remember, it is never too late until after bad things happen.

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Kim Ross Houser is the assistant chief of the Greensburg (Pa.) Fire Department and a partner in the firm of Mears, Smith, Houser & Boyle, P.C. An attorney with experience in special fire investigations, insurance issues and litigation, he has defended, represented and consulted for emergency response organizations on operational, employment and malpractice issues. Houser is an instructor with the National Fire Academy and the Pennsylvania State Fire Academy, and he has written numerous articles for emergency service publications.