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$3.2 million death settlement in Chicago

The City of Chicago just settled a wrongful death case for $3.2 million. The suit resulted from a defibrillator failure that was attributed to the fact that the batteries were not replaced every 2 years as recommended by the manufacturer. The patient died despite CPR being initiated almost immediately by his son, an off-duty firefighter.

The case raises a number of interesting issues:

1. Could the City have been found liable at trial in the absence of proof that "but for" the dated batteries, the decedent would have survived?
2. Does the City have immunity?
3. Did the City owe the decedent a duty to act, and if so was it a public duty or a special duty?

The settlement means none of these issues will be explored, but the case raises another important issue: What is the duty of other fire apparatus that do not even have defibrillators?

West Virginia State Fire Marshal Orders FD Closed

The State Fire Marshall for West Virginia issued an order shutting down the operations of the Coal City Volunteer Fire Department on September 2, 2009 for 90 days. Citing financial irregularities that led to the lack of workers compensation insurance, the SFM said if the problems are not rectified, he will permanently close the department.

An interesting consideration: does the state fire marshal in your state have the authority to shut down a fire department? In most states, the legal authority is not all that clear. Take a look at Chapter 3 in FOLH.

Baltimore Police Demands End to Firefighter Parity Clause

The Baltimore police union has filed suit to have the parity provision in the firefighters contract declared illegal. An interesting labor law issue, many states consider partity provisions to be illegal because it infringes on the rights of unions to bargain collectively. Other states permit parity provisions. Chapter 11 in FOLH addresses this issue.

Montana Supreme Court Overturns Age Limit for Recruit Firefighters

The Montana Supreme Court struck down a state law requiring firefighters to be 34 or younger when hired, finding it to be in violation of the state's constitution. The decision was issued Tuesday, August 11, 2009.

LA Settlements total $8 million

The City of Los Angeles recently settled discrimination cases with two firefighters, totaling $8 million.

Long Awaited New Haven Decision Issued by USSC

The long awaited decision in the New Haven promotion discrimination case was issued yesterday, June 29, 2009, and ruled that the fire department was not justified in throwing out the results of an otherwise valid examination process simply because the results did not provide the racial make-up hoped for. No doubt there will be a number of opinions on this decision. Here is one from the NY Times.

Liability for Ignoring ICS????

My friend and colleague, Brad Pinsky, wrote this article about a NY law suit that raises the question of whether the failure to utilize ICS, and in particular comply with NIMS, could be the basis for liability against the fire chief and fir department. Certainly a good read and food for thought.

US Supreme Court to Hear Fire Service Reverse Discimination Case

Soon after I began studying law, it became apparent to me that there was a special connection between law and the fire service. The connection was (and is) evident on so many levels and in so many ways. Once again that connection is re-emphasized in the reverse discrimination law suit from New Haven, Connecticut, that is now pending before the US Supreme Court. Once again, it appears that a fire service based case will be setting new precident. Here is an interesting news article on the case.

http://www.latimes.com/news/nationworld/nation/wire/sns-ap-scotus-firefighters-lawsuit,1,6226259.story?page=1

BETHESDA FIRE DEPARTMENT PAYS OVER $250,000

Former Chief And Board President Held To Have Imposed UnconstitutionalRestrictions On Former Deputy Chief’s Speech After His Critical CommentsAbout Chem/Bio Preparedness

BETHESDA, MARYLAND –Former Bethesda Fire Department Deputy Chief Lewis German, who had beenterminated from his position in February 2002, announced today he hadsettled his First Amendment termination lawsuit against the Bethesda FireDepartment, former Chief Dennis Urban and former Board President (andcurrent board member) Virginia Miller for $259,000.00. The case was pendingbefore the U.S. District Court for the District of Maryland and wasscheduled to go to trial on June 16, 2009. German was terminated followinghis public whistleblowing comments in the aftermath of 9/11 that MontgomeryCounty was ill-prepared to counter a chem/bio attack.

The parties issued a joint statement that “[i]t is regrettable that thissituation occurred. Mr. German has been a valued member of the MontgomeryCounty Fire and Rescue Service for more than 35 years and is to be commendedfor his dedication to the fire service.” “This sizable settlement sends themessage that fire departments can not legally silence volunteers who darepublicly speak out about legitimate safety concerns,” stated German, whosesalary for his service as Deputy Chief was $0 annually.

In or around 1999, Montgomery County purchased approximately $500,000 worthof protective suits which were never distributed to the various fire/rescuestations. None of the protective suits were appropriately or continually“fit tested” to ensure maintenance, nor did Fire/Rescue personnel receivethe necessary training to utilize the suits. This, according to German andseveral other volunteer fire officers, had rendered the suits unavailablefor service and was a waste of government funds. The public criticismprompted an October 9, 2001, press conference by then County ExecutiveDouglas Duncan, who was initially a defendant in the lawsuit and testifiedby deposition, to counter the media reports generated by German and his fireservice colleagues.

On January 22, 2002, Chief Urban, with the formal backing of PresidentMiller, notified German that he could not remain in the Department unless hesubmitted a letter of apology to Duncan, served a six month suspension fromBFD activities and agreed to “never again contact the media in any way(individually, anonymously, third party, etc.) while a member of the BFD.”Urban noted that there is “no negotiation or compromise on theseconditions”. After German refused to accept the conditions and specificallypointed out that Chief Urban and President Miller were violating his FirstAmendment rights, he was terminated on February 20, 2002.

The Honorable Peter J. Messitte, the presiding Judge in the case, afterevaluating the media restriction, wrote “The Court has no difficultyconcluding, however, that the condition that the [plaintiff] would have toforego every kind of speech as long as he was a member of the department isfacially unconstitutional. There's no question about that in the Court’smind, that it would represent a prior restraint that would be inappropriate,and I think the defendants would have to concede that.” Additional defenseclaims that German’s comments had jeopardized the Fire Department’s fundingwere characterized by Judge Messitte as “almost ridiculous in and of itself”and “speculative.”

“This case is a significant First Amendment victory for firefighters, themedia and the Montgomery County community, especially in light of theimportance of the issues that Lewis German risked his career to ensure werepublicly debated,” said Mark S. Zaid, the Washington, D.C. nationalsecurity/constitutional attorney who represented German. Chief Urban andPresident Miller bear predominant responsibility for the unlawful andreprehensible actions that ruined the career of a dedicated volunteerservant, and it cost the Fire Department more than a quarter million dollarsas a result. That says it all, added Zaid.

The case was German v. Bethesda Fire Department et al., Civil Action No.PJM05-494 (D.Md), and was filed on February 18, 2005. Prior to joining theBethesda Fire Department, German served as a volunteer member of theBethesda Chevy Chase Rescue Squad from 1966-2001, and its’ Chief fromJanuary 1999 - January 2001. He was appointed Deputy Fire Chief for BethesdaFire Department in February 2001. Following his unlawful termination Germanno longer participated in the fire rescue service and moved out-of-state.Chief Urban left the Bethesda Fire Department not long after and relocatedto Tennessee. Ms. Miller is no longer President but continues to serve on the Bethesda Fire Department board.

Can City get out of CBA through Bankruptcy?

Can a City file bankruptcy to get out of collective bargaining agreements that exist with municipal employees? That is what one California city is trying to do. Municipal bankruptcy is an interesting tactic that has never been completely successful to date - but in light of the recent financial crisis may be looked to by public officials. More on the California case here.

Firefighter case Headed to US Supreme Court

I have always been amazed by the connection between fire and law - and that connection continues to be proven time and time again. A reverse discrimination case involving the New Haven Fire Department is now before the US Supreme Court and may establish groundbreaking precident when it is decided. Here is a story about the case, and the arguments that each side is presenting.

Boston Firefighter in trouble for Email

A Boston firefighter is facing disciplinary action for using the department email system to encourage other personnel to cast votes against the mayor in an online poll. The firefighter also happens to be a union official. The case raises some interesting 1st amendment/privacy issues, along with the spector of electronic eavesdropping in the workplace, collective bargaining, and governmental ethics (yes ethics.... as in misuse of public property for political purposes).

Fire Officers Legal Handbook addresses some of these thorny issues in Chapter 6, not the least of which is that employers must obtain the employees CONSENT before being able to electronically eavesdrop or record their email conversations!!!!! Its not hard to obtain that consent - but it must none-the-less be done BEFORE the employer may being recording or viewing an employee's emails.

Medic Accused of Adandonment

Cases involving patient abandonment are a relatively rare occurrence, and in the few cases where abandonment has led to legal action, it has primarily involved civil suits. Thus the case of a medic in New York city who was charged with the criminal offense of endangering the welfare of a child is highly unusual. The medic transported a 5 year old boy who was injured in a vehicle accident to a Bronx hospital, but apparently did not want to wait for nurses who were too busy to sign the paperwork and accept the patient. He apparently left the boy, forging the nurses signature on his report.

Abandonment is discussed in Chapters 7 and 8 in Fire Officers Legal Handbook.

Click here for the newspaper report.

Firefighters Charged in Training Fire

In a strange case, two Pennsylvania firefighters have been charged with several criminal offenses including conspiracy, tampering with public records, and arson in regards to a training fire that was set in an acquired structure for training purposes, due to the fact that the building contained asbestos. According to a news report, the pair knew the building contained asbestos, but never the less obtained permits to allow the burn by indicating the building contained no hazardous materials. Additional details are available here.

Black Sunday Verdict: Guilty

The owner and the manager of the building that burned in the Bronx in 2005 resulting the in the deaths of two FDNY firefighters in the Black Sunday fire, were found guilty of criminally negligent homicide and reckless endangerment by a jury today. Prosecutors alleged that the pair failed to prevent tenants from illegally sub dividing their apartments. They were originally charged with manslaughter, but were convicted of the lesser charge of criminally negligent homicide. In a separate trial, the tenants were acquitted of the same charges.

Links to news article here:

Tenants Acquitted in Black Sunday Trial

The two tenants charged with manslaughter in the January 23, 2005 Bronx fire, often referred to as Black Sunday, have been acquitted. A separate trial against the former and current building owners continues. Two FDNY firefighters were killed and several others injured in the fire.

Click here for a news article on the acquittal.

Salute or Wave - Leads to Suspension

A Cleveland firefighter was given a six-month suspension from the Cleveland Firefighters Memorial Pipes and Drum Corp for giving President Barack Obama a nod and wave during last week's inaugural parade in Washington, D.C. The case raises some interesting questions about the rights of public organizations to enforce reasonable uniform and decorum requirements versus the first amendment rights of public employees. Click here for more.


Chapter 14 in FOLH addresses this thorny issue.

1/28/09 - here's a followup story from CNN

Manslaughter Trial for FDNY Black Sunday Deaths

The deaths of two FDNY firefighters and severe injuries to seveal others on January 23, 2005 is the subject of a crimical trail against two tenants and the owners of the apartment building where the fire occurred. The prosecution alleged that the defendants illegally subdividing apartments in the building, and thereby contributed to the deaths and injuries through their reckless and/or criminally negligent behavior. The defendants are chanrged with two counts of second degree manslaughter, two counts of criminally negligent homicide and one count of reckless endangerment.

Key to the case will be the mental states of the defenmdants. Did their conduct constitute reckless behavior? Was it criminally negligent behavior? Chapter 5 of FOLH and Legal Considerations addresses this difficult area of the law.



http://www.nytimes.com/2009/01/06/nyregion/06fire.html?_r=1&ref=nyregion


Update: http://www.newsday.com/news/local/newyork/ny-nyfire0130%2C0%2C6424922.story

Can City Use Retirees?

The Omaha Firefighter's Union recently dropped a law suit against the cityof Omaha, challenging the city's use of retired firefighters as part-time fire investigators. The union alleged that the practice violated the collective bargaining agreement, and deprived union members of work and pay.

http://www.omaha.com/index.php?u_page=2798&u_sid=10530798