Today’s burning question: If a department decides to eliminate any type of technical rescue service (i.e., high-angle, confined space, etc.) due to liability concerns and a technical rescue incident occurs, could those responders be accused of nonfeasance? For example, let’s say a worker goes down in a hole that is considered a confined space by definition. First responders arrive on scene and have the means and equipment to intervene. Due to the nature of the call and the department’s current position, no intervention occurs and the worker succumbs to their injuries.
Answer: The simple answer is yes, the responders could be accused of nonfeasance. I think your real question is whether they could be liable for nonfeasance. The analysis of that is much more complicated.
First, as I have said here repeatedly, we should not be using liability concerns to drive public-policy decisionmaking. That is the tail wagging the proverbial dog. The reason for that is we often find that governmental entities have defenses that make it unlikely they will be held liable. That being the case, this lack of liability could be misused by some to rationalize the elimination of emergency services. Our focus should be on providing a level of services for our community that will save savable lives and prevent preventable injuries in a manner that is within our financial means.
Now to get into the weeds: Most people assume that a fire department has a legal duty to rescue anyone who needs rescuing. That is a reasonable assumption give that city charters, fire department rules and regulations, and even the fire department’s motto may specifically say that it is the department’s duty to rescue anyone who needs rescuing.
However, most states recognize a legal principle known as the public duty doctrine. Under the public duty doctrine, fire departments (and government in general) may have a duty to the public in general to provide a service, but do not have a legally enforceable duty to any specific person, absent a special relationship. Explaining the ins and outs of the public duty doctrine and the special relationship exception would require an article of its own. Here are two posts about the elimination of a technical rescue discipline (water rescue) that explain the application of the public duty doctrine in real life:
Suffice it to say, a fire department that opted to eliminate a given technical rescue service would have a number of available defenses to a lawsuit filed on behalf of a person who is killed or injured. Whether the public duty doctrine, sovereign immunity, statutory immunity or lack of proximate cause, it would be difficult to hold a fire department liable to a member of the public for not providing, or eliminating, a service.
That is not to say it is wise, smart or ethical to indiscriminately stop providing such a service, but merely that the law would likely not put the community in jeopardy liability-wise for such a decision.
One final point: as was evident in the Alameda case, while eliminating a service may not turn into a liability problem, it will more than likely turn into a public-relations disaster.