Liability
Fire, Police, EMS departments, and other public service agencies
are liable for the actions of their employees. This includes
when there is negligence or history
of incompetence of their firefighters and officers. These
agencies and employees are paid by the public to perform to
established standards and meet certain expectations. When
they fail in their responsibilities then liability
becomes a factor for losses or injuries sustained by such
negligence.
No Fault is No More
The ancient concept of fire and police departments or firefighters
and police officers not being held accountable is still ingrained
in certain communities. Not only are the police and fire divisions
responsible but the individual is many times personally responsible
too.
Reasonable Expectations
All persons have the rights to expect a level of performance
and conduct from the community public service agencies. Such
levels of service are measured against several things. To
name but a few:
- Established written standards for
the industry (example: the National Fire Protection Association)
- Local standards and governed by department
policies and procedures
- do policies or regulations exist and if so are they properly
written
- did the individual perform to the agencies rules and regulations
- Industry standards - measured performance
using equivalent fire or police performance for similar
area, township, population, etc.
- Reasonable standards would an individual
in the same position with the same training make the same
decision or actions.
The Department, the Firefighter or Police
Officer (or employee of)?
In many cases liability can fall on both. The city, county,
or state itself must stand behind it's employees actions most
of the time. It cannot absolve itself of responsibility for
incompetent acts or negligence.
This is especially true when a history of such can be discovered.
Such history is there to be found in many cases.
The individual cannot hide behind the agency for all liability.
Firefighters, police officers, EMS workers, technicians, and
all employees of a public service agency have personal liability
for decisions they make or actions they take.
Crime scene technicians, evidence technicians, and all other
support staff are also expected to perform within department
regulations and industry standards. Such standards came to
light on a national level in the O. J. Simpson criminal trial
involving collected crime scene evidence procedures. Many
expert witnesses and consultants were important to the case
for both sides.
Determining which (or both) is legally responsible (liable)
for negligence or incompetence is a matter for the attorney
and ultimately the courts. The attorney will take steps to
uncover every possible location of evidence and documentation.
Once obtained the information must be able to be deciphered
properly and compared in a manner consistent with standards
in the industry (i.e. - firefighting, police procedures, evidence
collection, evidence comparisons, etc.).
Along with the obtained evidence from the department is that
which is not supplied by the agency itself. The fire or police
department may not interview or depose certain employees or
witnesses. The agency may not even be aware of certain evidence
initially unrelated to the case but later found to be crucial.
The investigator / consultant or legal support team
for the attorney will be valuable in determining possible
other sources of evidence to prove liability. Depending upon
the required evidence uncovered the consultant may also be
used as an expert witness for the defense.
Uncovering the evidence
Once litigation or liability claims are even hinted at the
agency will likely take an adversarial position with the person(s)
that were harmed or suffered loss. The fire and/or police
department will not usually be forthcoming with all documents
without attorney intervention to obtain what is needed. Even
if they do provide what is accessible by public records there
may very likely be evidence that
the department (or city,county,state,etc) will not want to
turn over. This is common. A trained expert consultant can
speed up the process by knowing what needs to be obtained
and how to interpret findings against profession standards.
Case example
A police officer is driving high speed to a call for assistance
(never mind the reason - it either warrants a 'code three'
emergency response or it doesn't). There are other officers
on the scene already, there is no immediate danger to the
public or the police officers. The officer in question is
not a supervisor.
Enroute the officer drives at speeds up to 80+ mph. Verifiable
to this range of speed by witnesses and accident evidence
(see below).
The officer misjudges a corner and crashes into a parked
car and ends up in the ditch. The officer has minor injuries,
the police car and the parked car are totaled. Skid marks
from measurements and photographs establishes speeds being
reasonably estimated at 80+ mph.
60 seconds prior to this there was an accident at the intersection
that the officer went through. There are injuries at that
accident.
Is the agency and/or police officer liable for the injuries
and losses at the intersection?
One would expect the police department to say no because
he was legally responding and using lights and siren.
However, once other evidence
is reviewed it can provide a different situation. Expert
consultants uncovered:
- The police department has a policy
of excessive speed but it was hidden in an unlikely location
(in a radio procedures policy). Under the department policy
the officer was violating department standards and practices.
- Given the traffic and intersection
layout the officer did not exercise 'due care' for the public
as governed by state law (determined
speed through intersection was estimated at over 50 mph).
- The police department personnel files
(once subpoenaed) showed some problems. In further examining
unofficial notes of the officer's previous supervisor, the
expert consultant found that the officer
had wrecked 3 cars in the last 12 months due to high speed
and losing control. He had also been reprimanded in front
of witnesses for his driving.
The outcome is now different due to the expert consultant's
findings because not only did the officer have a
history of poor or illegal performance of his job but the
department knew of them yet did nothing to correct it (such
as probation, driving school refresher, time off w/o pay,
etc.).
Without this
litigation and the circumstances coming to light in court
would this officer have continued to drive at unsafe speeds
and eventually causing even more harm or even death to an
innocent bystander?
The public is best served by
having such incompetence and negligence corrected. If the
agency did not correct actions or decisions when it became
reasonably evident then they should be held liable for all
harm and losses sustained by the officers actions. The officer
him/her self is also responsible for purposely violating policies
and standards that were made known to him/her.
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