On Saturday morning, March 9, 2002, I was in my law office as a rainstorm blew through with very high winds. My fire pager went off for an alarm drop, again for yet another, and then for a third. It was time to get to the station to help out, when I heard a chilling call on Hamilton County, Ohio, channel one: “Emergency traffic: This unit involved in head-on crash.”

A captain from another fire department was on his way to an alarm drop at a local college when he was struck by another vehicle. An air bag in the captain's fire department vehicle saved his life, although the force of the bag bent his nameplate and badge and bruised his chest. His vehicle was almost forced into a ditch, but it was saved by a guide wire on a telephone pole.

The young man who struck the captain's vehicle was not so fortunate. While he claimed to have been wearing a seat belt, his head went partially through the windshield. He suffered numerous facial injuries that required extensive reconstructive surgery. At the time of the crash he was driving down a wet hill, and his vehicle appeared to have skidded into the approaching captain's car because it had four bald tires.

Following the crash, the captain couldn't open the driver's side door, so he rolled down the window and crawled out. He ran over to assist the young driver. An engine company was not far behind. The lieutenant on the engine wisely told the captain that he was a victim, not a rescuer, and instructed him to sit down on the engine's front bumper and wait for the medics. The young driver was quickly extricated, and an ALS unit transported him to the University of Cincinnati Hospital emergency room. A second ALS unit transported the captain, who was treated and released.

He called me the following day for legal advice about the steps that he and his department should take to reduce the risk of litigation. The captain has kindly authorized me to discuss what his department learned. While some of the lessons from this crash are specific to it, many of them can be applied to any incident involving fire department vehicles.

Secure your radio, laptop, flashlight and every other potential missile. The captain was traveling about 20mph, having come to almost a complete stop at a controlled intersection just before the accident. The young driver was doing about 45 in the 35mph zone, which means the vehicle came to an abrupt stop equivalent to hitting a wall at 65mph. Your radio and all other items must be stored in such a way that they will not decapitate you. Velcro straps will not do the job.

Bolt the command box directly to frame. The command box in this vehicle had been wired to four eye bolts in the floor of the rear compartment. The force of the crash straightened out the four eye bolts, and the box came loose. Luckily, the rear portion of the box wedged itself into the ceiling of the vehicle.

Require a post-accident drug test. The fire department should have a written policy or SOP that requires a driver to take a test, at department expense, for illegal drugs and alcohol promptly after an on-duty crash where medical attention is required for anyone involved in the crash, sworn or civilian, or when there's property damage in excess of a prescribed amount, such as $1,000. You need to capture the negative evidence. In this case, the captain passed his test at the hospital.

Secure the entire scene until a police accident reconstruction expert arrives. In the event your local police department's expert isn't on duty, preserve the accident scene until he or she arrives. This expert should record detailed measurements, take photographs and prepare a diagram showing the travel of the vehicles to the point of the collision.

Request that the striking vehicle and any other evidence be seized. Generally, the police department will impound the striking vehicle if there's an ongoing criminal investigation for negligent homicide or similar offense. Ask the police to do the same for any serious vehicle accident that involves a fire department vehicle. Prior to release of the vehicle back to the owner or insurance company, ensure that any evidence, such as the four bald tires in this case, remain in police or fire department custody. Some jurisdictions may require a court order if there is no pending criminal prosecution.

Obtain statements from fire department personnel. Anticipating the possibility of litigation, your fire department SOPs should require the department driver and other personnel who were on scene to prepare individual statements. In this incident, the captain's statement included that he was operating with red lights and siren activated, and that he had come to an almost-complete stop at the controlled intersection 500 yards before the accident. The EMS personnel who transported the young driver to the hospital also would have prepared statements if he had said anything to them about the bald tires. Copies should be sent to the department's attorney.

Obtain dispatcher audiotape and transcript. Promptly ask the dispatcher to provide an audiotape of all fire, EMS and police communications about the accident, as well as an official transcript.

Carry tape recorders in command vehicles. In this particular case, the fire chief came to the hospital to check up on his captain and the young driver and his family. It would have been extremely helpful if the chief had had a tape recorder with him. In the event the family had information to offer about the bald tires, the chief could have asked for their permission to tape-record their brief statements, starting the tape by confirming their permission.

Remind department driver of right to file suit. Often forgotten is the fact that the department driver has a right in most states to not only file a worker's compensation claim with his or her employer, but also to file a law suit against driver who caused the accident for pain and suffering not covered by the state's worker's compensation program. The department driver should consult with private counsel on such a lawsuit. Most attorneys will represent a personal injury client on a contingent fee basis.

The next lesson is specific to this case, but it can be adapted for other fire departments and their particular situations.

Invite young driver's family to scene. The risk of litigation may be greatly reduced if the parents of the young driver visit the scene with a fire or police official who wasn't an eyewitness. The young driver's insurance company could be influenced by the parents' personal understanding that the captain was not speeding, and both the captain and their son were very fortunate to have survived the crash. A followup visit to the hospital by the fire chief also would be appreciated. These earnest expressions of concern help reduce the risk of litigation from the young driver, his family and their insurance carrier. The chief also can advise the captain and the department's attorney about the young driver's condition and the family's mood.

In many states, including Ohio, legislation provides sovereign immunity for municipalities and other political subdivisions when a fire, EMS or police vehicle is involved in an accident on an emergency call. For example, Ohio Revised Code 2744.01, Political Subdivision Tort Liability, provides sovereign immunity for “governmental functions” including police, fire, emergency medical, ambulance and rescue services if the vehicle accident occurs on an emergency call. An emergency call is defined as “a call to duty, including, but not limited to, communications from citizens, police dispatchers, and personal observations by peace officers of inherently dangerous situations that demand an immediate response on the part of the peace officer.”

Likewise, there is “qualified immunity” protection for fire, EMS and police personnel so long as they were not driving in a wanton or reckless manner. Ohio Rev. Code 2744.03(A)(6)(b) provides immunity from liability unless “the employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.”

In Colbert v. Cleveland, 99 Ohio St.3d 215, the Ohio Supreme Court issued a very helpful opinion, granting sovereign immunity even when no red lights or siren are used by police who are responding to a “call to duty.”

Cleveland Officer Daniel Connors and his partner was on patrol at 3:30 am on Dec. 6, 1998, when they observed two white males in a car making an apparent exchange for money with another white male on foot on 114th St. Because the area had a reputation as a “high-drug” area, the officers believed that they had witnessed a drug buy.

The officers drove their patrol car on a route parallel to 114th St., without red lights or siren. When they arrived at 114th and Harvard, they pulled into the intersection without red lights and siren to look for the two white males in the car. Just as they pulled into the intersection, the patrol car was hit broadside by a vehicle driven by James Colbert, who was injured. He was not involved in the drug buy.

Colbert sued the City of Cleveland for his personal injuries and damage to his vehicle. The city filed a motion for summary judgment based on sovereign immunity, and the trial judge dismissed the lawsuit. The Court of Appeals upheld the dismissal of the lawsuit, finding that “emergency call” does not require an actual dispatcher call, but simply a “call to duty.”

Colbert appealed to the Ohio Supreme Court, which upheld the dismissal of the lawsuit, stating “we hold that the officers' investigation of the men suspected of dealing drugs was an ‘emergency call’ as that term is defined in Ohio R.C. 2744.01(A).… The need to investigate the possible criminal act was a call to duty. Thus, the officers were responding to an emergency call when their patrol car collided with Colbert's car.”

As you can see from this Ohio captain's experience, fire departments should adopt a policy that outlines the steps to be taken when involved in an on-duty vehicle accident.

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A former part-time firefighter and EMT, Lawrence Bennett is a partner in Katzman, Logan, Halper & Bennett, a Cincinnati law firm He is an instructor at the National Fire Academy and the Ohio Fire Academy, and he can be reached at lbennett@katzmanlaw.com.