The purpose of training in the fire service is to ensure preparedness for the difficult — and often dangerous — situations that arise on the job. Sufficient training and preparation can mean quicker and more effective responses to emergencies. When examined from a legal standpoint, more effective responses mean less exposure to liability for the fire department. The unfortunate reality of fire service training, however, is that training itself can expose the fire department to liability. While the potential does exist for lawsuits to arise out of training-related incidents, fire departments cannot afford to allow the potential for lawsuits to hamper their obligation to train their personnel.

Understanding the sources of training-related liability is the key to structuring fire service training in a way that maximizes effectiveness while minimizing risk exposure. Training officers and fire department administrators who are familiar with the basic concepts underlying federal and state law are better able to avoid liability. Additionally, past mistakes can serve as great examples of what not to do. With these ideas in mind, this article aims to provide an understanding of the laws affecting fire service training, and also offers some examples of training issues that have led to fire department liability. From a practical standpoint, knowing the legal rules and how to stay within those rules should help reduce the likelihood for training-related liability for your fire department.

Sources of liability

Every lawsuit involves an allegation that some actor violated some legal standard, whether set forth in a federal or state statute or in a common-law doctrine. Avoiding lawsuits seems simple enough — do not break the law and you will not give anyone a reason to sue you. It seems less likely that fire service personnel will violate the law, because their goals are to help prevent property damage, injury and loss of life. Unfortunately, given the complex and far-reaching nature of the sources of liability facing fire departments, good intentions do not always translate into good results. Fire service training, in particular, creates exposure to liability in many ways people often fail to understand until it is too late.

Although preparation for effective responses comes first, one goal in providing fire service training should be to avoid liability. Employment laws, copyright protections and common-law standards such as negligence are the most common sources of liability for training officers. Understanding the rights and liabilities established by each can go a long way toward avoiding training-related liability.

Training officers should be aware of potential liabilities created under federal statutes. Three federal laws, in particular, most commonly affect training officer liability: the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and the Copyright Act of 1976. Besides being aware of these federal statutes, training officers should be familiar with the basic common-law civil liabilities created by fire service training. Most commonly, some form of negligence creates the basis for civil lawsuits against fire departments regarding training issues.

Americans with Disabilities Act. The Americans with Disabilities Act of 1990 prohibits discrimination against individuals with disabilities. The ADA's provisions apply to fire departments in their roles as employers and must be followed when conducting training. It also applies to fire departments in their roles as public-service providers and must be followed when interacting with the public. Training officers, however, should concern themselves more with the ADA's application to employers, as their potential for encountering ADA issues is more likely to be limited to employment-related matters.

The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities. ADA major life activities include seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself and working. Given the legitimate physical requirements fire service personnel must meet, a fire department in its role as employer is not likely to encounter limitations in the major life activities that other employers must accommodate. Training officers should, however, be prepared to accommodate psychological disorders; certain physical disorders such as diabetes, respiratory issues and cardiac issues; and learning disabilities.

When an employee claims to have a disability, training officers or fire department administrators should follow a basic two-step approach. First, it should be determined whether the condition actually exists and constitutes a disability under the ADA. If the condition does exist and it is a disability, it should be determined whether the disability can be reasonably accommodated. A reasonable accommodation, under the ADA, involves making necessary changes to enable a qualified individual with a disability to perform the major life activity limited by the disability. An accommodation is reasonable, and therefore must be made, if it does not impose an undue hardship on the fire department.

Title VII of the Civil Rights Act of 1964. Title VII prohibits fire departments, as employers, from discriminating against employees on the basis of race, color, religion, gender or national origin. The most common employment practices that raise Title VII issues are hiring, firing, promotions and compensation. However, discrimination must be avoided in training, as well. Title VII issues that arise during training most likely will come in the form of harassment. Whether harassment is based on race, gender or any other protected trait, and whether it is done by the training officer or by students, it must be handled properly to avoid liability for the fire department.

Training officers should be prepared to recognize harassment when it occurs in the classroom or on the training ground. Upon witnessing harassment, the training officer should document the incident and initiate discipline. Different fire departments have different discipline procedures, and a given training officer's authority to discipline will vary depending on organizational structure. What is important, however, is that harassment not go unnoticed and unreported. The argument can be made that systemic and continued harassment that goes unpunished has, in fact, been condoned by the fire department, and can lead to liability.

Copyright Act of 1976. Written materials and photographs used by training officers may be protected by the Copyright Act. Violating a copyright can create liability for the training officer and the fire department; however, a proper understanding of how and when materials may be used can help to prevent liability. In general, copyrighted materials may be used for training under the "fair use" exception. Even for teaching purposes, however, the possibility does exist for violating copyrights. Whether the use of certain materials falls under the "fair use" exception differs depending on the material and the amount copied.

If the "fair use" exception does not apply, training officers still can obtain permission from the copyright holder to use materials for training. Permission should be in writing and obtained prior to using the materials.

Common-law civil liability. Civil lawsuits involving training issues that are not based on federal employment or copyright law most likely will involve negligence, gross negligence, or willful and wanton misconduct. These types of lawsuits involve conduct that unintentionally causes some type of damages. Each is based on the premise that individuals have a duty to prevent harm to others by exercising reasonable care. Whether conduct constitutes negligence, gross negligence, or willful and wanton misconduct depends on the amount of deviation from the standard of reasonable care.

Negligence involves conduct that does not comply with the "reasonable person standard." Negligence is proved by showing that the breach of a duty proximately caused damages. Gross misconduct is characterized by conduct that is reckless or shows a conscious disregard for the safety of others. This standard represents a greater deviation from reasonableness than negligence. Finally, willful and wanton misconduct involves an utter indifference or conscious disregard for the safety of others. This standard is an even greater deviation from reasonableness than gross negligence.

Most states protect public employees and units of government from these types of civil liability through immunity statutes. These immunities are designed to allow public employees, such as fire service personnel working under dangerous conditions, to do their jobs without worrying that any mistake will create liability. Some immunity statutes, however, limit protection from lawsuits to negligence, thereby preserving an individual's ability to recover damages for willful and wanton misconduct.

Practical considerations

Training officers can take measures to reduce the entire organization's exposure to liability. Naturally, operational training that produces a safer and more effective fire suppression and EMS force will, as a side effect, reduce the potential for lawsuits stemming from those activities. Additionally, fire service personnel should be trained and educated on sexual harassment and anti-discrimination laws, as previously discussed. Perhaps less obvious, although equally important, is the ability to use effective record-keeping as a part of the fire department's risk management plan.

Record-keeping is such a key element of any risk management plan that it deserves its own, more detailed discussion. Some of the many types of risk-management records kept by fire departments include incident reports, ambulance reports, accident reports, training records, on-scene photographs and personnel files. All records must be properly created, stored and protected to ensure their usefulness and to avoid potential liability stemming from the records themselves.

Training fire service personnel on how to properly document emergency responses can help ensure an accurate record exists in the event such information is necessary to defend against a lawsuit. Similarly, maintaining those response records helps to ensure the information is available when needed. Without proper and accurate documentation of emergency responses, as well as a system for maintaining that documentation, the fire department is greatly disadvantaged in its legal defense.

Training records also must be created accurately and stored safely. Sign-in sheets, identification of training topics, handouts and reports of any unusual occurrences during training should be kept for at least five years after each training session. Incomplete or missing training records can make defending lawsuits more difficult.

Injuries, both during training and in response to emergencies, always should be documented. Information about what occurred, who was present and what each person observed needs to be included in any injury report. Again, training officers should instruct employees on how to properly document injuries. For injuries that occur during training, the training officer should be responsible for proper documentation.

State and federal laws prohibit the disclosure of certain records kept by fire departments. Medical records should be disclosed only when pursuant to a valid authorization signed by the patient, or pursuant to a valid subpoena. Photographs and video footage of a scene, while useful for training purposes, must never be disseminated to the public. Failure to properly secure confidential information will expose the fire department to liability.

Precautions

By maintaining professionalism and demanding it of their students, training officers can reduce the risk of training-related liability. For example, condoning jokes about an individual's race, religion or gender can lead to harassment claims. Properly documenting and imposing discipline in such situations is necessary to avoid liability. Training officers should treat everyone with courtesy and respect and demand the same treatment by students of each other.

By always demanding full effort during operations-based training, training officers can help ensure personnel are prepared for effective emergency responses, thus reducing risk for the fire department. Personnel should be trained on all department policies and procedures, and everyone should be prepared to use equipment and vehicles when necessary.

Finally, when in doubt, training officers should seek guidance from a higher authority. The goal of reducing risk is one shared by the entire organization. As a function of their responsibilities, training officers happen to be in a front-line position when it comes to risk reduction. However, this should not mean that the training officer is the only one responsible for reducing exposure to liability. Risk reduction is a team effort that is best performed by communicating concerns and addressing issues as they arise. By dealing proactively with potential sources of liability, rather than waiting until being served with a lawsuit to make necessary changes, fire departments can reduce their exposure to liability greatly.

Stephen H. DiNolfo is an attorney with Ottosen Britz Kelly Cooper & Gilbert, where he focuses on local government litigation and client counseling. A significant portion of his practice is dedicated to defending fire service employees and EMS providers. DiNolfo has defended clients in professional misconduct matters, federal civil rights claims and wrongful-death claims. In addition, DiNolfo devotes much of his time to counseling and advising the fire service on liability issues.

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