Fire Chiefs and the Law: What You Don't Know Will Hurt You

Ronald O'Keefe

There are many liability challenges facing today's fire service and fire chiefs. Constantly changing civil rights laws and technology have brought issues forth never conceived of before that are now an everyday occurrence.

Ever think you would have to worry about one of your staff immediately videotaping an emergency and, within a minute or two, uploading it to the Internet for broadcast around the world? What is social media and why do you need a policy on it? Welcome to fire service concerns of the 21st century.

Liability Training
Many years ago, after I had become a chief fire officer, I read the book Fire Service and the Law by Timothy Callahan. In one way, I wished I had it prior to taking the job; I might have passed on the job as the book scared me to death about my liability! In another way, it put me on course to make sure I knew and understood laws affecting fire service and my authority as a fire chief to limit risk—thus protecting my department and community.

Often, individuals accept promotions to the position of fire chief, yet have little knowledge of the legal authority or implications that may come from one's actions in that capacity. It is with this in mind that New Hampshire Local Government Center (LGC) has offered related programs at its fall Annual Conference and will provide a training titled Fire Service Law: What Every Fire Chief Should Know September 16 and 17 at the LGC in Concord. The all-day training features Attorney Curt Varone, a retired Deputy Assistant Fire Chief for Providence, Rhode Island and Director with the Legal Liability & Risk Management Institute. Curt has over 37 years of experience in fire service, 24 as a practicing attorney, and is the author of Legal Considerations for Fire and Emergency Services and the Fire Officer's Legal Handbook. He is also writes the "Fire Law" column in Firehouse Magazine.

The training will focus on litigation risks to fire service. It covers a fire chief's legal authority and responsibilities with regard to emergency response, personnel, discipline and finances. Specific topics Curt will cover include an overview of law and legal issues; fire service litigation; the Occupational Safety and Health Administration and fire service; negligence, gross negligence and recklessness; immunity and Good Samaritan protection; personal liability of firefighters and officers; respondeat superior and criminal liability concerns.

Emergency Vehicles
One of the more requested LGC Driver Training programs from fire departments is Emergency Vehicle Liability. At the start of each training session, I ask participants to raise their hands if they currently drive and operate an emergency vehicle (which may include their personal vehicle) equipped with audible and visual warning devices. The vast majority of those participating raise their hands. I then ask those with their hands raised to keep them up if they have read and understood New Hampshire RSA 265:8, Emergency Vehicles. It astounds me when I then see the vast majority lower their hands. Typically, only one or two individuals in the audience have actually read the laws governing how to respond to emergency incidents.

We have a failure here in communicating and educating our fire chiefs and their staff on the legal obligations they have in fulfilling their duties and responsibilities. Whether paid or volunteer, fire chiefs must understand the founding laws that provide their department authority during an emergency. No one is above the law. In fact, across the country, public employees and entities are being brought through the legal system for everything from poor driving to sexual harassment.

There is quite a bit of misunderstanding regarding RSA 265:8, Emergency Vehicles, and what an emergency responder can and cannot do with the vehicle they are operating. It is recommended that every emergency response agency review this law with all of their staff. It may just keep you out of trouble in the future.

Wake-Up Call
A Michigan case (Matthew Garrisi v. Grand Traverse Metro Fire Department) heard in 2006 regarding a firefighter indicted for vehicular homicide should send a serious wake-up call to all emergency response agencies. The firefighter, who sped through a stoplight in an emergency vehicle, killed a woman and her 11-month-old child. The firefighter was using lights and sirens as he went through the intersection. The case resulted in a $3 million settlement and agreement by Grand Traverse Metro Fire Department to adopt National Fire Protection Association standards requiring a stop at controlled intersections, even when operating under emergency conditions, and to mandate driver re-training every two years.

Most responders would say that, in this case, everything possible was done to warn the motoring public. But was it? In New Hampshire, RSA 265:8 states that an individual, "when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated." The law goes on to note the following:

II. (a) The driver of an emergency vehicle may:

(1) Park or stand notwithstanding the provisions of Title XXI.

(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation.

(3) Exceed the maximum speed limits so long as he does not endanger life or property.

(4) Disregard rules governing direction of movement or turning in specified directions.

Some words have been bolded in this article—like the word "privileges"—to emphasize the law's point: to mandate drivers to slow down and drive defensively. A privilege is defined by Merriam-Webster's Collegiate Dictionary (Tenth Edition) as "a right or immunity granted as a particular benefit, or advantage, or favor … to a position or an office." Emergency responders are offered these "benefits" in order to do their jobs more effectively. But closely consider this language in sections (2) and (3): "necessary for safe operation" and "does not endanger life or property." This is powerful and significant wording.

By driving too fast or recklessly, not only do you jeopardize the safety of the public but the safety of you. Just think of what may happen if you cannot make it to the emergency and become one yourself? Have you accomplished the mission of your organization? Certainly not! You have exacerbated the problem.

When you read RSA 265:8 further, section III (a) and (b) delineate emergency response even more. III (a) states:

The exemptions granted to an emergency vehicle in sub paragraphs II (a)(1) and (3) shall apply only when such vehicle is making use of audible or visual emergency signals.

So, if you are parking or standing in a manner that's against the provisions of the law cited above or are exceeding the maximum posted speed limits safely, you must use either emergency lights or a siren/warning system whether you are in a department or privately-owned vehicle.

Further, sub paragraphs II (a)(2) and (4) require the use of both audible and visual emergency signals when an emergency responder proceeds past a red stop signal (only after slowing for safe operations) or when disregarding the rules of direction, movement or turning (against traffic on one-way roads or in the wrong lane) whether you are in a department or privately-owned vehicle.

Section V of RSA 265:8 is the most important with respect to protecting yourself against liability. It states:

The provisions of RSA 265:8, II and III shall not relieve a driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from consequences of his reckless disregard for the safety of others.

Let's reconsider the Michigan case. The prosecution's statement for probable cause claimed the firefighter drove "without due regard" for the safety of others and at an "immoderate" rate of speed. Thus, two lives were lost and others damaged forever by someone whose professional creed contains "save lives."

For the safety of all, have all of your personnel read RSA 265:8, slow down and buckle up. Ask yourself: Do we have policies governing emergency response? And do they include the use of privately-owned vehicles? If not, changes are needed now to make that happen.

Ron O'Keefe is an LGC Health and Safety Advisor and a nationally designated Chief Fire Officer by the Center for Public Safety Excellence. The 27-year veteran of New Hampshire Fire Service formerly served as fire chief for the Town of Durham and University of New Hampshire and can be reached by calling 800.852.3358, ext. 289, or by email.