Burning Questions: NFPA Standards and Liability

Today’s burning question: I have a couple questions about NFPA 1710 that I’m sure you have answered numerous times.  I know 1710 is a “recommendation” of how fire departments should staff and has measurable objectives.  However, it was my understanding that it cannot mandate all fire departments in the country to “comply” with the standard as written as most fire departments do not have the staffing nor the funding to reach those objectives listed in 1710, specifically as it relates to residential or commercial structure fires.  Every department cannot have 4 personnel on every engine or ladder or have 15-17 personnel on scene of a structure fire.  So, in summary is it safe to say it is a recommendation but not law unless adopted?

Answer: I recall Ann Landers got herself in some hot water after being accused of recycling questions/answers. I too am sure I have answered that question previously… but I will give it another shot and hopefully my response is consistent with what I have said previously. Perhaps I may even offer a more insightful answer… LOL.

Despite the simplicity of your question, it defies a simple yes or no answer. The answer will also vary from state to state, so to get a more definitive answer you need to ask your local legal counsel to know if it applies in your state as a “law” or is simply a “recommendation.”

There are two big “legal” concerns associated with NFPA standards. They are:

1. NFPA standards are evidence of the standard of care for fire departments, fire chiefs, fire officers, and firefighters. NFPA standards are not per se the standard of care but a jury could conclude that the failure to comply with an NFPA standard that results in an injury could be actionable as negligence. Said another way, the reasonably prudent fire department would not ignore an NFPA standard.  You should ask your attorney to explain this in more detail, as well as any defenses you may (or may not) have such as sovereign immunity, statutory immunity, workers comp exclusivity, and the public duty doctrine.

2. OSHA (for public sector fire department’s – state OSHA) may choose to cite employers who violate an industry-wide safety standard under the “general duty” requirement. The general duty clause in the OSH Act requires employers to provide a workplace that is free from recognized hazards. This is in addition to the obligation of an employer to comply with all applicable OSHA standards. Industry-wide safety standards are presumed to be based upon the existence of a “recognized hazard.” In the case of NFPA 1710, understaffing is recognized as a hazard to firefighters. Not every state enforces OSHA against public sector entities. Where they do, state OSHA could consider the failure to comply with an NFPA standard such as NFPA 1710 to be a violation of the general duty requirement.

So, is it possible to ignore an NFPA recommendation “legally”? Not in states that enforce OSHA against public agencies. In jurisdictions that do not have public sector OSHA requirements and that have not adopted NFPA 1710, yes – to the extent you cannot be cited by the state for ignoring it. However, in such a state doing so is not without its own legal risks. Should someone be killed or injured as a result of the failure to comply with NFPA 1710, the standard will serve as evidence of what the reasonably prudent fire department would have done. That in turn could lead to liability exposure for negligence. Of course other considerations may come into play, including the financial circumstances in the community, etc. The standard of care will be evaluated based on what would the reasonable prudent fire department have done under the circumstances. Those circumstances rarely include a situation in which money is unlimited. In addition, the fire department may benefit from an assortment of defenses ranging from sovereign immunity, statutory immunity, the public duty doctrine and workers comp exclusivity.

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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