Liability and Bail-Out Systems

Today’s burning question: We have recently purchased harnesses and bailout kits for all of our members. We drafted an SOG that addresses the upkeep, training, and inspections for the equipment, but we are curious about to best way to word the SOG to protect the department liability-wise. We are also unsure about whether to mandate wearing of the kit. We expect members will not like the added weight and may refuse (or conveniently “forget”) to wear it. Should the SOG read that the member must always wear the kit or else assume personal liability if they do not? Is there any type of legal statement we should include?

Answer: Great questions that are similar to ones I get asked regularly. First of all, you really have two separate questions and despite your concerns about liability, neither of them are liability questions. It is unfortunate that so often we find it necessary to ask questions like these out of a concern for liability when fundamentally the issues are really about firefighter safety.

Issue 1 – Should your department mandate the wearing of the bail-out system? That is fundamentally a leadership question. It is one that should have been decided before the bail-out systems were purchased. It should be based upon a risk-benefit analysis related to firefighter safety, not liability. Remember – if we can prevent a firefighter from being killed or injured, we avoid the liability creating event. Let’s focus on preventing a firefighter from being killed or injured, not on whether we can avoid being held liable after the fact. To the extent we allow liability concerns to influence a safety decision, we potentially put firefighter safety at risk.

Bail-out systems are not a risk-free proposition as firefighters can be killed or injured in training with the devices and/or in their actual use/misuse. If you determined that the risks of a firefighter being trapped on an upper floor warranted the purchase of a bail-out system, that decision (to me) suggests that the department has determined there is a need for all members to wear the system. A lawyer should not make that decision for you – it is a leadership decision – but to the extent it matters it is more defensible to make the wearing of the system mandatory. That is not to say you have to make it mandatory, nor that you should make it mandatory… only that it is legally easier to defend that position. The department’s leadership needs to take into account everything that bears on the decision.

Issue 2 – Is there language we should include in the SOG to help protect the department liability-wise? No, there is no magic language that you can put in the policy that will reduce the department’s liability profile – and once again the question leads us in the wrong direction.

The focus should not be upon fancy wording in a policy. In the event of the death or serious injury to a firefighter the issue will likely come down to whether or not the department properly trained the firefighter, and whether the firefighter was proficient in the use of the bail-out system. To repeat the theme I mentioned above – let’s focus on avoiding a firefighter death or serious injury as opposed to finding weasel words to give us “cover” so we can blame the firefighter for not following the policy.

Training/education is much more important in preventing a liability-creating event from occurring, than fancy words in a policy. Focus less on weasel words and more on concrete training/education (including training on the risks of not wearing/using the system) along with documentation of the training/education so that if need be you can walk into court with a clear conscience and a boat-load of documentation that a firefighter’s death or injury – whether due to his/her non-wearing, non-use, or mis-use of the bail-out system, was not the fault of the department.

Trying to do that simply by a fancily worded sentence in a policy… (even one I wrote for you using my best weasel words) probably won’t get you too far.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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