Anthony Mots, a firefighter with the Kansas City (Kan.) Fire Department responded to a Sept. 30, 2000, house fire in a fire engine as its driver/operator. He activated the emergency lights and sirens on the rig as he left the fire station. He proceeded westbound on Central Avenue, a major thoroughfare, passing the intersections of 14th, 15th, 16th and 17th streets.

The Central Avenue — 18th Street five-way intersection has a building on the northeast corner that blankets the noise of sirens and horns and blocks the line of sight to the north. Mots sounded the airhorn as he approached the 18th Street traffic signal. Because other vehicles headed westbound were stopped at the intersection, Mots moved the fire truck from the westbound lane of traffic into the oncoming traffic lane and subsequently entered the intersection in that lane.

There was a dispute regarding the color of the traffic signal at the time Mots drove through the intersection. Mots maintained that the light was red as he traveled westbound on Central but that the 18th Street light turned green at some point during the time Mots traveled from 17th to 18th Street. Others alleged that the traffic light was red as Mots approached and drove through the intersection.

Neither Mots nor the captain riding in the officer's seat knew the rate of speed at which the fire truck was traveling between 14th and 18th streets. An accident reconstruction expert later calculated the speed of the fire engine at 24mph.

As Mots proceeded through the intersection, the fire engine struck a southbound vehicle driven by Aaron Becerra, who died from the injuries he sustained in the crash. Mots did not see the Becerra vehicle until a split second before the collision.

As a result of Becerra's death, his estate and heirs brought a 42 U.S.C. Section 1983 action against Mots and his employer, alleging substantive due process violations and state tort law claims, in Becerra v. Unified Government of Wyandotte County/Kansas City, 342 F.Supp.2d 974 (D.Ks, 2004). Mots moved to have the federal due process claims against him dismissed as a matter of law. In opposing his motion, lawyers for the estate focused on the fire department's written training materials and its policies and practices with respect to emergency vehicle operations.

The Kansas City Fire Department uses the International Fire Service Training Association's drivers training manuals to train its emergency vehicle operators. To seek a promotion to the position of driver, employees are required to pass a test consisting of questions derived from the IFSTA materials. The court assumed, therefore, that Kansas City Fire Department drivers should know the basic concepts of emergency driving as outlined in the training materials.

The training materials available to Mots addressed issues of travel route, travel speed and stopping before traveling through negative right-of-way intersections. The manuals instructed that the most direct route to an emergency scene may not be appropriate; and that traffic, population and the hazardousness of an intersection are factors to be considered. With respect to speed, the training material stressed that safely arriving at the destination of a fire is more important than speedily arriving there. The written materials also instructed that a driver/operator should stop before entering a negative right-of-way intersection, even if local policies or state statutes permit proceeding against a red light or stop sign.

After the lawsuit was filed, Mots was questioned at length regarding his choice of travel routes that led to the fatal accident. Mots testified that he always traveled the most direct route when responding to an emergency call. However, he acknowledged that buildings at an intersection could blanket or redirect siren noise, thereby increasing the potential for a collision. He also said that a busy and congested intersection is more prone to collisions involving emergency vehicles, and that the more roadways there are at an intersection, the higher the risk for collision.

Nevertheless, even assuming that the features of an intersection make it more dangerous than other intersections, Mots testified that he always travels the most direct route when responding to an emergency call and would not change his chosen route to avoid an intersection he believed to be more dangerous. His captain testified that he would not avoid an intersection because it's more risky. This position was supported by the fire chief, who testified that he deemed the speed of response as a paramount consideration in selecting the travel route to an emergency.

With respect to speed, Mots testified that he determines what speed is appropriate given the road conditions, the traffic and traffic signals. At the time of the accident, the department's written policy prohibited driving too fast for existing conditions and specifically prohibited drivers from exceeding the posted speed limit at any intersection. Nonetheless, during the litigation, the fire chief was unwilling to embrace the suggestion that a speed of 50mph in this situation would have been inappropriate.

The fire department also had a general order for emergency vehicles approaching a negative right-of-way intersection to slow down and prepare to stop. The order stated that the emergency vehicle may proceed only when the driver can account for all oncoming traffic and lanes and can verify that such oncoming traffic is yielding the right of way. During the course of litigation, Mots testified that he usually doesn't stop before entering a negative right-of-way intersection, and he didn't bring the fire truck to a stop before entering the intersection at issue.

In contrast to his prior testimony relating to speed, the fire chief testified that all drivers should follow the department's official policy requiring a driver to slow down, stop and proceed only when all traffic has yielded. However, the chief also testified that he never communicated this position to the drivers, and he wasn't aware of anyone else ever having made that communication.

In fact, a Kansas Highway Patrol officer who provided the driver training to the fire department, including Mots, did not recommend that emergency vehicles be brought to a stop before entering a negative right-of-way intersection. Instead, he instructed drivers to duly regard the safety of others by scanning the intersection upon approach and proceeding through the intersection only after verifying that it's clear. The highway patrol officer testified that Mots' driving on the day in question was reasonable under the circumstances.

In bringing the lawsuit against the government, the Becerra estate claimed that the deceased was denied due process. The due process clause of the U.S. Constitution provides that the government may not “deprive any person of life, liberty or property without due process of law.” Not every right or interest is entitled to protection under the substance of the due process clause. Rather, a substantive claim is “founded upon deeply rooted notions of a fundamental personal interest derived from the Constitution,” according to Tonkovich v. Kansas Bd. of Regents, 159 F3d. 504, 528 (10th Cir. 1998). The standard for judging a substantive due process claim is whether the challenged government action “shocks the conscience.” To satisfy this standard, a plaintiff “must demonstrate a degree of outrageousness and magnitude of potential or actual harm that is truly conscience-shocking.” The level of fault necessary to do so must be determined on a case-by-case basis.

In Becerra, the trial court noted that where there's time for deliberation prior to acting, the level of fault for liability is “reckless or deliberate indifference.” Where circumstances necessitate split-second judgments, the standard of fault for liability is higher: an “actual purpose to cause harm,” as is County of Sacramento v. Lewis, 523 U.S. 833, 848 118 S. Ct. 1708, 140 L.Ed.2d 1043 (1998).

In the case before the court, Mots and the fire department alleged that the estate failed to present sufficient facts to support a finding that Mots had time to deliberate prior to the accident. They contended that without facts to demonstrate time for deliberation before the collision, the estate was required to establish that Mots had a “purpose to cause harm” — as opposed to engaging in conduct that was “deliberately indifferent” — in order to prevail upon their theory that the driver's conduct shocked the conscience. Based on this rationale, and the fact that the plaintiffs never alleged Mots had a purpose to cause harm, the defendants argued that they were entitled to judgment as a matter of law. The estate disagreed with this contention, arguing that the evidence presented established Mots had time to deliberate prior to the accident.

The trial court then viewed the evidence in a light most favorable to the estate, as required by federal law, to determine whether the court should grant the defendant's motion to dismiss the case. The trial court noted that:

• Mots may have been able to see the 18th Street — Central Avenue traffic light governing his travel as early as 14th Street.
• Neither Mots nor his captain knew the rate of speed at which the fire truck was traveling between 14th Street and 18th Street.
• Mots entered the intersection in the lane for oncoming traffic.
• Mots did not stop the fire truck and actually accelerated as he entered the intersection.
• Mots did not see Becerra's vehicle until a split second before the collision.
• A witness stopped in the westbound lane on Central Avenue was able to see Becerra's vehicle as the decedent approached.
• The building located on the northeast corner of the intersection obstructed and/or interfered with Mots view of the decedent's vehicle and potentially blanketed and/or redirected siren noise from the fire truck.
• Mots acknowledged that the more roadways that intersect, the more prone the intersection is to collisions.
• Notwithstanding prior knowledge of these circumstances, Mots would not change his chosen route to avoid such an intersection.

Based on these factors, the trial court was persuaded that the evidence presented created a material issue of fact with respect to whether Mots had time for deliberation prior to the accident. The court was further persuaded that an issue of fact existed regarding how much time Mots had to deliberate before the collision. The court focused on several questions:

• How far away was Mots from the intersection and traffic signal before seeing and/or appraising the traffic?
• At what speed was he traveling?
• How much time did he have to deliberate?

The court ruled that given the number of critical facts that either were unknown or in dispute, a jury should be used to resolve the factual dispute regarding whether Mots had an opportunity to deliberate, which would determine whether the level of fault necessary to shock the conscience was “deliberate indifference” or “purpose to cause harm.”

Mots also sought dismissal on the basis of qualified immunity, which is available to those governmental employees who perform discretionary functions if their actions don't violate clearly established law. Once a defendant pleads qualified immunity, the plaintiff bears the burden of establishing facts that would show the defendant's actions violated a clearly established federal, constitutional or statutory right. The trial court, relying upon the U.S. Supreme Court decision in County of Sacramento v. Lewis, denied Mots' immunity request.

The estate also sued the fire department based on its established policies and customs. In denying the municipality's motion to dismiss, the trial court pointed out that the government may be held liable only for violations of civil rights under Section 1983 if the violations result from the execution of a government policy or custom. Again, viewing the evidence most favorably toward the plaintiffs, the court was persuaded that a question of fact existed as to whether it was the practice or custom of the fire department to operate emergency response vehicles at unnecessary and excessive speeds under less than optimal traffic conditions. Likewise, the court held that sufficient facts were presented to permit a jury to determine whether the department's policy that an emergency response vehicle approaching negative right-of-way intersections need only slow down and prepare to stop was a constitutional violation. The court also found that issues existed with respect to the department's policies relating to the choice of route when responding to an emergency call, and whether those constituted official practice and custom that would rise to the level of a constitutional violation. The trial court then pointed out that the fire chief, acting on behalf of the government, had notice of the alleged deficiencies in training and supervision of fire department employees and, despite the notice, chose to disregard the risk or harm that could be caused by these potential defects in training and supervision.

The court wasn't willing to rule out the possibility that a reasonable jury might find from the evidence that the government consciously and deliberately excluded information in the course of training and supervising its employees that it knew could safeguard the citizens driving on its roads and protect them from danger.

Mots appealed the denial of his claim of qualified immunity to the U.S. Court of Appeals. The appellate court first reviewed the Supreme Court's decision and its clearly established rule: “when government officials face a situation ‘calling for fast action,’ only official conduct done with an intent to harm violates the 14th Amendment.” (Emphasis added.) The U.S. Supreme Court acknowledged, however, that some action, even if performed in a time-sensitive, high-pressure situation, may still shock the conscience if the official has time to deliberate before acting. However, “actual deliberation” means more than having a few seconds to think.

The appellate court in Becerra noted that it had not previously applied Lewis to a situation where a firefighter or police officer was involved in an automobile accident while responding to an emergency call. However, the court held that the intent to harm standard was applicable:

“A firefighter responding to a house fire has no time to pause. He has no time to engage in calm, reflective deliberation in deciding how to respond to an emergency call. Doing so would risk lives. This case presents a paradigmatic example of a decision that must be made in haste and under pressure.”

As a result, the appellate court held that the trial judge committed a mistake of law by applying the deliberate indifference standard. Instead, the trial court should have applied the intent to harm standard. The appellate court noted that the estate conceded that there were no allegations nor facts in the case that supported a claim that Mots had an intent to harm the decedent. Because there was no such allegation, the court did not address the question of the evidence necessary to prove an intent to harm. Instead, the appellate court simply held that: “A bystander hit by an emergency response vehicle in the process of responding to an emergency call cannot sustain a claim under the substantive due process claim without alleging an intent to harm.” As a result, the court dismissed the claim against Mots. On April 26, 2006, the estate asked the U.S. Supreme Court to review this decision.

Annually, 25% of firefighter deaths are attributable to motor vehicle accidents. Many more civilians are injured or killed as a result of the same fire department operation. Whenever a significant injury or death occurs, litigation is likely to ensue. Therefore, fire department administrators and chiefs must be vigilant to fixing the holes in the armor that may give rise to successful litigation by plaintiffs.

As with fires, the best way to minimize potential liability is through proper prevention. Although the appellate court decision was favorable to Mots and the fire department, fire officials must be familiar with the training materials available to the fire service. Whether they are applicable to the fireground or emergency vehicle operations, these texts and manuals will be used in court by plaintiff's lawyers as a basis for establishing a deviation from accepted industry practices.

Supervisors within a fire department also must be intimately familiar with their own rules and regulations, and must make sure that the rules and regulations conform with national or state practices. If deviations occur — and they will — the department must be prepared to logically explain the differences that exist. For example, archaic fire officials insist on bucking the national trend by having employees respond to non-symptomatic carbon monoxide calls or transport a patient with a stubbed toe to the hospital in an emergency mode. Chiefs who are out of step with current standards and trends eventually will have to explain their deficiencies to plaintiff's counsel, who will be more informed regarding fire service standards.

There also may be instances where the fire department has rules that are no longer applicable to current operations. In that case, fire officials must ensure that the rules are revised to fit current practice. Where the rules comply with national or state standards but the execution by firefighters does not, remedial measures must be implemented. Training must take place on a regular basis, and lessons previously learned must be reemphasized. This is especially true where the activity involves high-risk behavior.

Anthony Mots was protected by an appellate court that recognized his decisions were made without time to deliberate, and therefore did not trigger the substantive due process clause of the U.S. Constitution. Nonetheless, many states permit claims to be made against firefighters and fire chiefs that do not require an intent to harm or deliberate indifferent standard. Many causes of action may be brought against fire officials using negligence or reckless standards. Plaintiff lawyers are becoming increasingly more savvy and will be prepared to use fire service texts and standards against us unless we remain educated and proactive in the implementation, execution and review of our policies and actions.

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David C. Comstock Jr., CFOD, is an attorney specializing in fire litigation and the defense of government entities, including fire departments. He's also chief of the Western Reserve Joint Fire District, Poland, Ohio.