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Should Firefighters Be Able To Sue?

“We live in a culture of litigation now, and I suppose the fire service isn’t any different from any others in that sense.” Interesting quote … from a former firefighter … and South Ayrshire Councillor John Allan about the settlement of a lawsuit in Scotland brought by a senior fire commander who was injured 2006.

Commander Paul Tanzilli was injured in a strange boating accident on August 9, 2006. He and a crew were evaluating the operation of a pioneer rescue boat when it hit a “freak wave” created by a nearby tug boat. Tanzilli was thrown from his seat and injured his back fracturing his L1 vertebrae.

The commander filed suit against his superiors for negligence, “claiming there was no consideration taken for ‘untrained personnel’ on board”. The £50,000 case was settled for an undisclosed amount in part because of a concern over setting a precedent that could lead to more suits if the case went to trial…. Seriously??? And exactly what message does settling the case send…

Anyway – here is a good link to the story. It is interesting to see that the US does not have a monopoly on lawsuits. While I do not know enough about the case to be able to comment in detail – one point that struck me as odd is the commentary by several people quoted in the article that suggests that because someone is a firefighter, they have accepted a level of risk and should therefore be prohibited from suing. For example:

  • “However, when I joined I knew I was putting myself at risk. You go to work every day and you don’t know how that day will end. If you are going to have to save someone or a bit of property then you will always be putting yourself at risk, and you just have to accept that.”
  • “These things happen in these services, and they happen in everyday life. It is about what is appropriate.”

I am not buying into the assumption of risk argument. As firefighters we no doubt accept a certain level of risk – but not all risk. An astronaut accepts risk. But if he is injured through the negligence of someone while he is being driven to the launch pad – he should not be prohibited from suing simply because he accepted a greater risk by agreeing to go into outer space. Again, I don’t know the specifics of the Scottish case – but accepting the risks of being a firefighter does not excuse all acts of negligence.

If the same case occurred in the US, there would be some level of liability protection offered through the workers compensation exclusivity principle. Essentially, in the US – workers compensation is considered to be the exclusive remedy for someone injured at work. An injured worker cannot sue his employer or co-workers for work related injuries except in limited circumstances. But it has nothing to do with the acceptance of a certain level of risk… If that were the case we would have librarians and accountants able to sue for injuries that firefighters could not! Interesting discussion though!!!!

 

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Comments - Add Yours

  • http://emergencylaw.wordpress.com/ Michael Eburn

    It’s an interesting question but why, in principal, should fire fighters not be allowed to sue if they have been injured due to negligence? Now we don’t know if there was negligence here nor why the fire service’s insurers chose to settle but lawyers know that decisions about settling a case depend on much more than the ‘black letter law’ and we don’t know enough about the facts to be able to comment on their assessment of its strengths and weaknesses; so we are left with the in principal question ‘should firefighters be able to sue?’ not ‘should Commander Tanzilli have received compensation in this case?’

    It has to be remembered, too, that suing for compensation doesn’t just give a windfall; it’s designed to recompense for the losses suffered. I don’t know the Scottish Workers Compensation scheme but in Australia his medical and other expenses would have been met from a compulsory, no fault, insurance scheme with no right to sue except in the most exceptional circumstances.

    But if that’s not the case in Scotland then why should he not have his losses covered and if the system in that country is a tort case then so be it.

    Australia has no application of the US firefighters rule, that is a firefighter accepts the risks of the job and can’t sue; in Australia firefighters injured by the negligence of others (for example the person who negligently causes the fire) can sue but they don’t again, it appears, because we have a no fault compensation scheme for both paid and volunteer firefighters.

    To return to the ‘in principal’ question, ‘should firefighters be able to sue?’; not for all injuries incurred in the course of their duties which are part of the unavoidable and inherent risk, but for injuries that are caused because someone, whether their fire agency or someone else, was negligent; then why not? Why should putting on a uniform mean that the law that applies to everyone else, that the system adopted in whatever country you live in to compensate people injured at work, no longer applies to you?

  • http://firelawblog.com Curt Varone

    Thanks Michael

    The debate in the US continues in some states where the fireman’s rule is expanded and others where it is eliminated.

  • http://emergencylaw.wordpress.com/ Michael Eburn

    And yes it should read ‘in principle’ not ‘in principal’ – sorry about that.

  • Underwhelmed

    There is risk inherent in the job and I rail against the trend to not put firefighters “in harm’s way” given forseeable risks. I just think the service has become too risk averse and errs on the side of not deploying assets if there is a conceivable risk to safety. However, that does not, and should not, let a department “off the hook” regarding training and equipping to a reasonable standard (What is reasonable?) and then accepting the risks left over.

    • http://firelawblog.com Curt Varone

      Thanks Underwhelmed

      The inherent risk argument cuts both ways. A firefighter no doubt accepts the risks inherent in his/her duties. But that should not excuse someone’s wrongful behavior. Think of the implications to society if there was a rule that prohibited people from suing simply because there was an “inherent risk” in what they were doing.

      Take driving a car for example. There is an inherent risk that someone may run a stop sign, run a red light, speed, drive drunk, or come across the center line and crash into your car head on. Do we excuse the wrongdoer simply because the risk is inherent in the activity?

  • RJ

    Curt: 2 questions, could you say how many states have a firemans rule? and would you agree that firefighters should be able to sue if the fire was the result of a crime?

    • http://firelawblog.com Curt Varone

      RJ

      I do not know how many states recognize the Fireman’s Rule. Getting the list would not be the hard part. It is one of those legal issues that would be a great deal of work to maintain and update once you had the list because states change – legislatures change the rule, courts change the rule, there are exceptions after exceptions after exceptions that must be considered. I go into it in detail in Fire Officer’s Legal Handbook – but most states that recognize the Fireman’s Rule, recognize an exception for behavior that is beyond negligence (gross negligence, recklessness, or intentional/criminal behavior). NY State allows suits if a law is violated, but does not require it to be a criminal law. Some states limit the Fireman’s Rule to property owners – so a firefighter could sue certain parties who cause an emergency so long as they are not the property owners at which the incident occurs – other states extend it to anyone who’s negligence causes an incident to which the firefighter responds.

      I would agree that a great many states would allow firefighters to sue for injuries that occur at an intentionally set/arson fire – under one or more of the exceptions. I would definitely agree that firefighters should be able to sue in such a case.

      You use the phrase “if the fire was the result of a crime”… is there another scenario you are thinking about – or just the arson situation? Are you thinking like … say … a drunk driving accident where a car strikes a building and starts a fire?

  • ukfbbuff

    1st. The Laws related to Fire Service Workers Injury /Compensation in Scotland, seem to have “Devolved” over the past 10 years or so since I began reading the “Fire Brigades Union” website. While England and Scotland are different Countries, there are some common laws that affect Firefighters equally.

    2nd.California, I believe still has the “Fireman’s Rule” in effect. No thanks in part to former “G-A-S”.

    3rd. If something occurs and their is some liability involved the fire fighter should be able to go to Court and seek redress.

    4th. “Inherent Dangers’ of the Job.

    It’s 2011 and the I-Chief’s;

    “Rules of Engagement for Structural Firefighters” Should be used as a Guideline
    in every day operations.

    “Common Sense” at a minimum demands its
    reference before committing personnel to dangerous situations as well as allow a denial to enter the situation as it appears to the fire attack crew away from the ICP, who have a better view of the position if it’s a “No Win” situation.