Chapter 2 - LODD / SAFETY

 

RECENT CASES

Article 2-15 (April 14, 2017)

Link:  KA - Firefighter Rule Applies To Police Officers Injured

 

Article 2-14  (Feb. 9, 2017)

Link: WA - Two Fighters With Cancer - Statutory Presumption - Covered Under Workers Comp

 

Article 2-13  (Jan. 24, 2017)

Link: NY - Firefighter Complained Safety Concerns; Retaliation Lawsuit Reinstated

 

Article 2-22 (Dec. 7, 2016)

Link: OH - Firefighter Cancer Bill Passed - Statutory Presumption

 

Article 2-21 (Sept. 8, 2016)

Link:  IL:  Civilian Paramedic not eligible for State catastrophic injury fund - only full time firrfighters, police  [also filed, Chap. 6]

 

Article 2-20 (May 2, 2016)

Link: CO:  Firefighter cancer statute - employers can challenge statutory presumption that cancer was caused by job

 

Article 2-19 (Nov. 18, 2015) - also filed, Chap. 6

Link: TX:  San Antonio FD - mandatory annual physical & stress test - 30-yr. member sues, case dismissed

 

Article 2-18 (June 26, 2015)

Link:  OH - Firefighter Killed In Line Of Duty - Parents' Lawsuit Against Homeowners Growing Marijuana In Basement, And Against Motorola (Emergency Button) Reinstated

 

Article 2-17 (Feb. 24, 2015)

Link: NY - PASS Device Did Not Activate - FF Lost Right Arm & Ear - $11 Million Settlement

 

Article 2-16 (Sept. 26, 2014)

Link:  OH - TANKER LURCHED FORWARD - NO WHEEL CHOCKS - FF LEGS AMPUTATED - QUALIFIED IMMUNITY FOR OPERATOR  [case also filed, Chapter 5]

 

Article 2-15 (June 27, 2014)

Link:  NEBRASKA - Laser Pointed At Aircraft - Defendant Sentenced 24 Months Federal Prison

 

Article 2-14 (March 29, 2014)

Link:  NY - Fireman's Rule - Restaurant Owner Allowed Waiters To Smoke In Basement - FF Injured May Sue

 

Article 2-13 (Dec. 12, 2013)

Link: WA - Unguarded fire pole at Seattle FD - $12.75 million jury verdict upheld

 

Article 2-12 (Oct. 22, 2013)

Link:  MS - Captain with asbestos related respiratory disease - workers comp

 

Article 2-11 (Sept. 30, 2013)

Link:  OH - Workplace Horseplay - Cannot Sue Co-Worker For Injured Co-worker

 

Article 2-10 (July 17, 2013)

Link:  NY - Fireman's Rule - Police officer injured loading wooden barriers onto flatbed truck - New York statute allows lawsuit for damages

 

Article 2-9 (July 10, 2013)

Link:  NIST:  SAFETY RISKS OF PORTABLE GENERATORS

 

Article 2-8 (July 8, 2013)

Link:  OH:  EMPLOYEE DEATH FROM SCAFFOLDING - INTENTIONAL TORT

 

Article 2-7 (April 9, 2013)

Link: MONTANA:  TRUCK DRIVER CONVICTED KILLING FF WHEN TRUCK JACKKNIFED; PHOTOS OF FF PROPERLY SHOWN TO JURY

 

Article 2-6 (Dec. 18, 2012)

Link: IDAHO:  INJURED FIREFIGHTER - WYE VALUE FAILURE

 

Article 2-5  (Nov. 1, 2012)

Link: COLORADO:  BRAIN CANCER - STATUTORY PRESUMPTION

 

Article 2-4 (Sept. 28, 2012)

Link:  NEW YORK - FIREMAN'S RULE - FIREFIGHTER FELL OFF ROOF FIGHTING FIRE 

 

Article 2-3 (Feb. 23, 2012)

Link:  WASHINGTON - SEATTLE FIREFIGHTER FELL DOWN FIRE POLE - JURY VERDICT UPHELD

Article 2-2 (Sept. 23, 2011)

Link:  ILLINOIS - DIESEL EXHAUST - DISABELED FIREFIGHTER ENTITLED TO WORKERS COMP PENSION, AND PAYMENT OF MONTHLY MEDICAL COVERAGE FOR FAMILY

Article 2-1  (June, 2011)

Link:  OHIO FIREFIGHTER HEART ATTACK - REBUTTABLE PRESUMPTION - WIDOW'S WORKERS COMP CLAIM

Article 2-24 (July, 2009)

VIDEO – FIREFIGHTER CANCERS / WELNNESS

Now posted on UC Fire Science web page: http://aerospace.ceas.uc.edu/FireScience - CONTINUING EDUCATION.

Article 2-23 

CT: TWO LODDs - FD CITED BY STATE-OSHA - “MAYDAY” CALLS, HYDROSTATING TESTING OF SCBAs, FIT TESTING, MEDICAL EVALUATIONS, NOT WEARING SCBAs

On Jan. 24, 2011 the Connecticut OSHA issued citations to the Fire Chief of City of Bridgeport FD, arising out of two LODDs at a structure fire on July 24, 2010. State-OSHA is seeking $5000 in penalties, alleging 5 “serious” violations: http://www.firehouse.com/files/article_pdfs/OSHA+report.pdf

The citations have also led to numerous press articles, including Firehouse.com and CT Post:

http://www.firehouse.com/news/top-headlines/fallen-conn-firefighters-families-angry-over-findings
Feb. 13, 2011
Fallen Conn. Firefighters' Families Angry Over Findings
A recently completed OSHA report faulted the city of Bridgeport in the July 24 blaze killing two firefighters.

http://www.ctpost.com/news/article/Bridgeport-cited-for-serious-safety-violations-in-1009085.php
Feb. 11, 2011 Bridgeport cited for serious safety violations in death of two firefighters: city contesting

The citations are allegations, which the FD can contest or negotiate a settlement.

• “Citation 1, Item 1: Serious ($1000)

The employer did not follow existing Standard Operating Procedures regarding “Maydays” on July 24, 2010.

Feasible means of abatement:

(1) The employer should ensure that if “Mayday” calls on the fire ground are in question, clarification should be made onsite ICS and with offsite dispatch to ensure the safety of firefighters, including accounting for all firefighters on scene.
(2) Retrain all employees on existing “Mayday” Standard Operating Procedures.”

• Citation 1, Item 2: Serious ($1000)

Hydrostatic testing was not performed on all SCBA air cylinders that were worn by firefighters who performed interior structure firefighting.

• Citation 1, Item 3: Serious ($1000)

Employer did not ensure that medical evaluations were performed on employees who wear self contained breathing apparatus (SCBA).

• Citation 1, Item 4: Serious ($1000)

Annual fit testing was not performed on firefighters who wore self contained breathing apparatus while performing interior structure firefighting.

• Citation 1, Item 5: Serious ($1000)

The employer did not ensure that all firefighters wore self contained breathing apparatus while performing all aspects of interior structure firefighting on July 24, 2010.”

Legal Lessons Learned: These citations should be carefully reviewed by every FD. In Ohio, such violations can result in a VSSR claim (Violation of Specific Safety Regulations), under the state workers compensation program http://www.ohiobwc.com/downloads/blankpdf/sviu.pdf.

Article 2-22

LODD: LAWSUIT BY FAMILY OF BALTIMORE RECRUIT, KILLED IN LIVE BURN TRAINING FIRE, DISMISSED BY FEDERAL JUDGE – ALLEGED FD NEGLIGENCE DID NOT “SHOCK THE CONSCIOUS” OF COURT

On Dec. 3, 2010, in Virginia Dean Slaughter v. Mayor and City Council of Baltimore, Civil Case No. L-10-1157, 2010 U.S. Dist. LEXIS 127698, a U. S. District judge granted the city’s motion to dismiss this federal lawsuit brought by the family of recruit Racheal Wilson, who died in live burn training in a row house on Feb. 9, 2007. “[T]he Court cannot say that the actions of the Fire Department, however reckless they may have been, rise to the level of a constitutional violation.” Full decision can be read:

http://www.mdd.uscourts.gov/Opinions/Opinions/SlaughterMemoOrder.pdf.

[Note By Author Of This Newsletter: The NIOSH Firefighter Fatality Investigation report is a “must read” for all involved in live fire training. See report F2007-09, Dec. 8, 2008, http://www2a.cdc.gov/NIOSH-fire-fighter-face/state.asp?State=MD&Incident_Year=ALL&Submit=Submit.

The LODD has also resulted in adverse press and FD discipline. See for example: “Third Baltimore Fire Official Suspended Following Recruit's Death,” 6/14/2007, http://www.firehouse.com/news/news/third-baltimore-fire-official-suspended-following-recruits-death.]

ALLEGATIONS

The U.S. District Court judge described the allegations from plaintiff’s complaint. This lawsuit was dismissed without any pre-trial discovery (depositions, etc.):

“This case arises out of the tragic death of Racheal Wilson, a Baltimore City firefighter recruit in training, during a ‘live burn’ training exercise. Ms. Wilson’s family and personal representative (“Wilson’s Estate”) brought suit against the Mayor and City Council of the City of Baltimore, as well as three individual members of the Baltimore City Fire Department.

***

On February 9, 2007, Racheal Wilson participated in a ‘live burn’ training exercise, wherein recruits battle a live blaze purposely set by Fire Department instructors. Wilson was a member of the first team to enter 145 South Calverton, a three-story row house. Her assignment was to carry the hose nozzle for her team, though her hose was not ‘charged’ with water pressure. Despite the presence of fires on the first and second floors, Wilson’s team was instructed to bypass them and proceed directly to the third floor. On their way upstairs, the team encountered severe conditions that required them to stop and confine another fire before proceeding. Upon arriving on the third floor, the team was confronted with a conflagration so powerful that evacuation became the only option. The recruits began to escape through a small window in the back of the third floor that opened onto a section of the second-story roof.

Though Wilson’s teammates were able to make it out onto the roof, Wilson had trouble getting through the window. Three times a fellow recruit tried to pull her through, only to have her slip back into the house. Finally, a crew member still inside managed to lift Wilson by the legs and others pulled her, unconscious and unresponsive, onto the roof outside. Teammates administered CPR, but to no avail.”

NFPA

“The Amended Complaint alleges that conditions inside 145 South Calverton were wholly inappropriate for the exercise conducted there, and that the planning and execution of the exercise failed to conform to requirements promulgated by both the National Fire Prevention Association and the Baltimore City Fire Department. Defendants, the Complaint charges, recklessly created an inferno that quickly burned out of control. Among other conditions, the Plaintiffs cite that some walls and ceilings were torn down to expose the framing and allow the fire to spread more quickly, an accelerant (excelsior) was stuffed behind other walls, the building was not cleared of inflammable debris, and at least seven separate fires were set. Wilson’s Estate similarly takes issue with the recruits’ gear and training, claiming that many participants were not given a proper breathing apparatus or protective clothing, that the water pressure was inadequate to address the number and strength of the fires, that there was no evacuation plan, and that the recruits were never given a pre-burn walkthrough or even instructed as to the basic construction of the building.”

INSTRUCTORS ALLEGEDLY NOT PREPARED

“Finally, the Complaint alleges that the instructors in charge of the exercise were similarly unprepared: they were not equipped with radios to report developing problems, several had never been trained in live fire training exercises, they were unfamiliar with the recruits, they set the fires before confirming that the recruits were ready to begin, three instructors left their crews, and those with the authority to terminate the exercise failed to do so when it became clear that lives were in danger.”

[Footnote 1: Defendants deny that the training exercise was poorly planned. Because of the procedural posture of the case, a motion to dismiss, the Court must accept as true the allegations in the complaint. This means crediting the allegation that the exercise was recklessly conceived and carried out.]

“SHOCK THE CONSCIOUS”

Wilson’s Estate sues under 42 U.S.C. § 1983, claiming that the Defendants’ conduct violated Wilson’s Fourteenth Amendment right to life. Analogous State Constitutional claims are advanced under Article 24 of the Maryland Declaration of Rights. Finally, Wilson’s Estate brings wrongful death and survival actions under Maryland tort law. The Defendants have moved to dismiss all counts for failure to state a claim.”

“The Court notes initially that Wilson’s Estate applied for and received pension benefits from the Fire and Police Employees’ Retirement System as a result of her line-of-duty death. Where a state provides for such compensation, it will normally be the exclusive remedy for injury or death occurring on the job. Section 1983 was never intended as a federal means of redress for those injured by the negligence of so-called ‘state actors.’ Rather, it creates a federal cause of action in favor of individuals whose constitutional rights have been abridged by those acting under color of state law. Consequently, in order to prevail, Wilson’s Estate must demonstrate that the Defendants’ conduct rose to the level of a constitutional violation.

The Due Process Clause of the Fourteenth Amendment is violated by executive action only when it ‘can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 128 (1992). Section 1983, therefore, does not create a cause of action for negligent conduct. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Either an intent to harm or deliberate indifference is required. See Waybright v. Frederick Cnty., MD Dep’t of Fire and Rescue Servs., 528 F.3d 199, 206 (4th Cir. 2008). Wilson’s Estate does not allege that the City intended to harm Ms. Wilson. It does, however, contend that the fire exercise was shockingly ill-conceived and ill-executed. Plaintiffs maintain that the Defendants' deliberate indifference to the dangers posed to the recruits is actionable under § 1983 because it ‘shocks the conscience.’”

WASHINGTON, D.C. – TWO LODDs – FEDERAL LAWSUIT DISMISSED

“[T]he D.C. Circuit in a similar case persuasively rejected the idea that the state has a heightened obligation towards firefighters, even when local law restricted their ability to terminate their employment or to leave the District of Columbia. See Phillips v. D.C., 455 F.3d 397, 405 (D.C. Cir. 2006). In that case, two firefighters died while battling a multi-alarm blaze, allegedly due to the fire chief’s deliberate indifference to his duty to see that the department complied with its own standard operating procedures. The Phillips court ruled that the restrictions placed on firefighters, which distinguish them from at-will employees ‘are not imposed; rather, a firefighter agrees to them as conditions of employment.’ Id. at 405 n. 10. The Plaintiffs cannot, therefore, avail themselves of the ‘special relationship’ line of cases.”

***

“The D.C. Circuit also addressed the state-created danger exception in Phillips. Confronted with the plaintiffs’ argument that the D.C. fire department’s failure to follow standard procedure constituted ‘avoidable state-created additional risk,’ the court held that while the fire chief’s deliberate indifference may have increased the firefighters’ exposure to risk, ‘the risk itself—injury or death suffered in a fire—is inherent in their profession. . . . [T]he District is not constitutionally obligated by the Due Process Clause to protect public employees from inherent job-related risks.’ 455 F.3d at 407.”

[Note: The D.C. Circuit in Phillips case involved IC, ventilation, and radio issues. The Court in its 2006 decision wrote:

“Shortly after midnight on May 30, 1999, D.C. firefighters responded to a multi alarm townhouse fire at 3146 Cherry Road N.E. *** [T]he Incident Commander initially in charge of coordinating the Department's efforts at the site, relied on a portable radio device rather than the stronger-signal mobile radio mounted in his vehicle that he could have used had he established a fixed command post. [IC] radioed Redding twice to locate his position but Redding, inside the house, never received the transmission. Soon another fire truck arrived and began ventilating the townhouse's basement by breaking the rear basement sliding glass door. The truck improperly conducted the ventilation, resulting in a sudden temperature increase inside the structure. Superheated gases from the fire shot up the basement stairway to the first floor. Redding, still on the first floor and in the gases' path, ran out of the house, his face and back burning. He told [IC] that Matthews was still in the townhouse, unaware that Morgan and Phillips were still inside as well. [IC] did not order a rescue effort until 90 seconds later, when Morgan exited the house suffering from severe burns. Seven minutes after the rescue effort began firefighters found Phillips severely burned and unconscious. Four minutes later they found Matthews in a similar state. Phillips died of his injuries 23 minutes after his removal from the townhouse. Matthews died of his injuries the following day. Morgan and Redding survived but suffered severe injuries.”]

MARYLAND – LODD FROM HEAT STROKE DURING RECRUIT TRAINING RUN – FEDERAL LAWSUIT DISMISSED

“The Fourth Circuit has been careful, however, to limit the state-created danger exception to cases in which the state has compelled the injured person to encounter the danger. See Waybright v. Frederick Cnty., MD Dep’t of Fire and Rescue Servs., 475 F. Supp. 2d 542, 553(D. Md. 2007). This limiting principle operates in workplace safety cases. Section 1983 does not require the state to provide a workplace that is free from unreasonable risks of harm. Collins, 503 U.S. at 128 (‘We . . . are not persuaded that the city’s alleged failure to train its employees, or to warn them about known risks of harm, was an omission that can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.’). If the employee voluntarily encounters the risk, the exception does not apply.”

“In Waybright v. Frederick County, MD Department of Fire and Rescue Services, 528 F.3d 199 (4th 10 Cir. 2008), Andrew Waybright, a Frederick County firefighter recruit, died of heat stroke during a training session conducted in 84-degree weather without water. Waybright’s parents filed a § 1983 claim against the county, the fire department, the supervising firefighter, and others. After rejecting the opportunity-to-deliberate line of cases and finding that Waybright’s status as a firefighter trainee was insufficient to invoke the ‘special relationship’ exception, the Fourth Circuit considered whether the state-created danger theory might provide a path to recovery. Waybright’s parents argued that ‘the training session should qualify as a state-created danger because [the supervising firefighter] had used his authority to create an opportunity for danger that otherwise would not have existed and thereby knowingly put Waybright in harm’s way.’ Id.at 207 (internal quotations omitted). In denying the claim, Judge Wilkinson, writing for a unanimous panel, invoked the Supreme Court’s holding in Collins v. Harker Heights that due process does not impose a duty on municipalities to provide their employees with a safe workplace or warn them against risks of harm. Id.”

RACAEL WILSON LODD – THIS FEDERAL LAWSUIT MUST ALSO BE DISMISSED

“Because Ms. Wilson voluntarily participated in the exercise, the Plaintiffs cannot satisfy the ‘state-created danger’ test even if the City acted with deliberate indifference. The theory behind the state-created danger exception is that a state actor should be liable when that actor affirmatively puts a victim in harm’s way without giving the victim a choice about whether to face the peril or not. The Court recognizes that the training exercise was not optional. Had Wilson refused to participate, she would not have graduated. Nevertheless, in a § 1983 case Wilson’s option of declining to participate is sufficient to defeat the claim. In such a situation, the Court cannot say that the actions of the Fire Department, however reckless they may have been, rise to the level of a constitutional violation.”

***

“This ruling, it should be noted, does not leave the Plaintiffs without a remedy. As mentioned, they retain all rights afforded under the Workers’ Compensation system, the Fire and Police Employees’ Retirement System, state tort law, and Article 24 of the Maryland Declaration of Rights. The Court's ruling today concerns only whether Plaintiffs are entitled to take advantage of § 1983, which applies primarily to cases in which the harm was intended and only tangentially to cases in which the defendant acted recklessly but without the intent to injure.”

Legal Lessons Learned: More precedence for dismissal of LODDs filed in federal court, alleging FD violated constitution; “shock the conscious” very difficult burden to prove.

Article 2-21

FIREFIGHTER SAFETY - REAR INTAKE CAP ON ENGINE BLEW OFF STRIKING FF IN FACE - SUED ENGINE MANUFACTURE ALLEGING IMPROPER DESIGN – JURY FOUND PIERCE NOT AT FAULT - FD IS “SOPHISTICATED INTERMEDIARY” AND RESPONSIBLE TO TRAIN PERSONNEL ON SAFE OPERATION, INCLUDING THE QUICK-RELEASE STORZ CAP THE FD INSTALLED

On September 7, 2010, in David Hatter and Kristina Hatter v. Pierce Manufacturing, Inc., Court of Appeals of Indiana, 934 N.E.2d 1160; 2010 Ind. App. LEXIS 1625, the Court of Appeals refused to order a new trial. The jury returned a verdict finding Pierce "was not at fault” and the Court of Appeals affirmed.

Injury to face:

“While working as a Pike Township firefighter, David Hatter was injured when the cap on a fire truck's rear intake pipe was propelled off the pipe by pressurized air and the cap struck Hatter in the face. Hatter and his wife Kristina brought this products liability action against Pierce Manufacturing, Inc. ("Pierce"), the manufacturer of the fire truck. Following a jury trial and verdict in favor of Pierce, Hatter appeals.

The accident occurred on September 19, 2001.

“Hatter was on duty and responded to a fire call. Initially rookie firefighter Amanda Burt attempted to remove the quick-release cap in order to connect the rear intake port to a hydrant. Having difficulty doing so, Burt found Hatter, who also could not remove the cap through manual strength. Hatter then found firefighter Neil Dorbecker, who was the engineer operating Engine 113 that day. Dorbecker grabbed two spanner wrenches, which are designed to fit around and remove a quick-release cap, and went with Hatter to the back of the truck. As Dorbecker loosened the cap, Burt, who was standing next to Hatter, heard a "loud boom." Id. at 352. Hatter was struck in the face by the quick-release cap and "flew back about 10 feet and fell to the ground." Id. Hatter suffered fractured facial bones and was taken by ambulance to the hospital.

Alleged negligent design not proved:

“Engine 113 was a pumper truck with two large-diameter horizontal intake pipes, one opening at the front and one opening at the rear of the truck, with each opening connectable by a hose to a fire hydrant. The opening of the rear intake pipe, known as the rear intake port, was located about five feet above the ground, at head height. Inside the fire truck, the front and rear intake pipes were connected as a single, continuous, five- inch diameter pipe. A T-connection located near the middle of the piping brought water from either intake pipe into a vertical pipe leading to an interior reservoir; the reservoir would pump water at various pressures to outlets connected to fire hoses. The rate at which pressurized water entered the reservoir from either intake pipe was controlled by a butterfly valve inside the piping, located between the intake port and the reservoir, a few feet on either side of the T-connection. Each butterfly valve was adjusted by turning its own control wheel at the fire truck operator's station, ten complete turns between fully closed and fully open. When either the front or rear intake pipe was not in use, its corresponding butterfly valve typically remained closed and its intake port capped.

Hatter alleged the following aspects of the piping design rendered Engine 113 unreasonably dangerous. Because the front and rear intake pipes were connected, when a pressurized hydrant was connected to the front intake port, pressurized water would not only flow through the front intake pipe to the reservoir, it would also travel backwards through the rear intake pipe as far as it was able to go. With the front butterfly valve opened, pressurized water would flow past the T-connection and into the rear intake pipe until it reached the rear butterfly valve, where it would remain under pressure as long as the pressurized hydrant was connected to the front intake. So long as the rear butterfly valve remained closed, the fifteen feet of pipe between the rear butterfly valve and the rear intake port would be filled with air at atmospheric pressure. If, however, the rear butterfly valve were inadvertently opened, the laws of physics would require the pressure on either side of the valve to immediately equalize. As a result, the air in the rear intake pipe would be compressed to the same pressure as the water pressure from the hydrant connected to the front intake. If the rear butterfly valve were then closed, the pressurized air between the rear butterfly valve and the rear intake port would remain trapped under pressure, even after the fire truck was disconnected from the hydrant. After the incident, PTFD firefighter David Estes determined that this mechanism caused Engine 113's rear intake pipe to become, in effect, a pressurized air cannon.

The rear intake pipe could have been harmlessly depressurized in two ways: opening the rear butterfly valve, or opening an ‘air bleed’ valve located inside the rear intake pipe aft of the rear butterfly valve. Transcript at 298. The parties disputed at trial whether such a depressurization should have been accomplished during Engine 113's weekly inspection done two days before the incident. The protocol for such inspections called for operation of the rear air bleed, and the PTFD log book for Engine 113 showed no activity between the Monday inspection and the Wednesday incident that could have resulted in pressurization during that intervening time. Hatter argued, however, that because the activities routinely recorded in the log book did not include all instances of using an intake pipe to fill Engine 113's tank, the pressurization may well have occurred at some point following the Monday inspection. However, the parties agreed there was no protocol for an inspection aimed specifically at ascertaining the pressurization of the rear intake pipe. Rather, Pierce concedes "[d]eposition and trial testimony established that no one had ever heard of an inlet pipe becoming pressurized." Appellee's Brief at 10.

Engine with threaded cap as specified by FD; then FD changed it to Storz cap:

“It was also undisputed that the injury-causing potential of pressurization of the rear intake pipe would differ based on whether the cap on the rear intake port was a threaded cap or a quick-release cap. PTFD's specifications called for a threaded cap, and Engine 113 was delivered with a threaded cap. Like a cap on a two-liter soda bottle, a threaded cap detaches only after several turns. If a threaded cap is unscrewed from a pipe under pressure, the pressurized air or water will escape gradually as the cap is turned. After Engine 113 arrived in Pike Township, and without informing Pierce, PTFD replaced the threaded cap with a quick-release or "Storz" cap. Tr. at 125. A quick-release cap is removed by pushing two levers and turning the cap a quarter-turn to the left, which makes the cap come off as soon as it is loosened; thus, a quick-release cap is ‘either on or off.’ Id. at 191. Any pressure in the pipe will be released suddenly and may propel the quick-release cap away from the pipe with proportionate force.”

Jury properly instructed at the request of Pierce Manufacturing that FD was a “sophisticated intermediary.”

“The sophisticated intermediary doctrine provides a defense to a manufacturer's duty to warn and is applicable only if the intermediary -- in this case, PTFD as the intermediary between Pierce and Hatter -- knew or should have known of the product's dangers. See id. at 164 (‘[F]or the exception to apply, the intermediary must have knowledge or sophistication equal to that of the manufacturer or supplier, and the manufacturer must be able to rely reasonably on the intermediary to warn the ultimate consumer. Reliance is only reasonable if the intermediary knows or should know of the product's dangers.’).

However, evidence presented at trial established the following, from the totality of which the jury could reasonably have inferred PTFD should have known of the danger arising from the combination of Engine 113's plumbing design with a quick-release cap. First, even though Pierce did not provide any drawings of the interior plumbing configuration, which was not part of PTFD's specifications submitted to Pierce, firefighter Estes knew that configuration well enough to accurately hypothesize the cause of Hatter's injury immediately after it occurred. Second, PTFD's firefighters were aware that pipes on fire trucks can become pressurized. See tr. at 304 (Estes's testimony regarding his experience as a firefighter in removing caps that contain "pressurized air or water"). Third, PTFD unilaterally decided to install, and did itself install, the quick-release cap on Engine 113. Fourth, the firefighters' difficulty in removing the quick-release cap was a potential sign that the rear intake pipe had become pressurized.”

Therefore, the trial court did not abuse its discretion by giving the sophisticated intermediary instruction.

Legal Lessons Learned: Firefighters injured by an engine have a very difficult time proving product design defect when the engine is altered without knowledge of manufacturer.

Article 2-20

OSHA – SEEK AUTHORITY FROM CONGRESS TO INSPECT / FINE PUBLIC EMPLOYERS – INCLUDING FIRE DEPARTMENTS

On April 27, 2010, David Michaels, Assistant Secretary for OSHA, testified before the U.S. Senate, Committee on Health, Education, Labor and Pensions, in support of the proposed “Protecting America's Workers Act.” One of its provisions would amend the 1970 OSHA Act to give OSHA inspectors authority over public employees in all states; currently 26 states have voluntarily adopted state-OSHA plans. This law would give OSHA authority over the remaining 24 states. http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=TESTIMONIES&p_id=1122.

He testified:

“It is a fact little known among the American public that public employees in the United States - who respond in our emergencies, repair our highways, clean and treat our drinking and waste water, pick up our garbage, take care of our mentally ill, provide social services and staff our prisons - are not covered by OSHA unless the state in which they work chooses to do so. Today, almost 40 years after passage of the Occupational Safety and Health Act, half of the states still do not provide federally-approved coverage for public employees.

According to the Bureau of Labor Statistics, the total recordable case injury and illness incidence rate in 2008 for state government employees was 21 percent higher than the private sector rate. The rate for local government employees was 79 percent higher. Clearly, some public sector jobs are extremely dangerous. Public employees deserve to be safe on the job, just as private-sector employees do.

In testimony before this Subcommittee in May 2007, Jon Turnipseed, Safety Supervisor for the City of San Bernardino Municipal Water Department in California, said it most succinctly:

From my own view as a public sector employee, the simplest but most compelling reason is that saving lives and preventing injuries always tops the list of values that our government holds dear in every other responsibility it undertakes. State and local government workers are, in many instances, the "first responders" upon whom we all depend. Whether a terrorist attack or a natural disaster, these first responders are the first people who rush in to help save lives. We put a premium on that capability in our society. These same people who protect the public from hazards deserve no less of a commitment to occupational safety and health protections from their employers, the public, and all of us here today.

Twenty-six states and one territory now provide federally-approved OSHA coverage to their public employees and you will find that they consider it not a hardship, but a necessary provision for the safety of their employees and the provision of good government. Nonetheless, in 2008 there were more than 277,000 injuries and illnesses with days away from work among state and local governmental employees. In a state that has public employee coverage, a public employer can be held responsible for safety violations. A crane operator in New Jersey died from injuries after his head was crushed by a cargo spreader in 2008. New Jersey, which has an OSHA program for public employees, issued a citation for willful OSHA violations. However, if this tragedy had occurred in Pennsylvania or Delaware, which have no public employee safety and health programs, the employer could not have been held accountable.

Again, we support the Protecting America's Workers Act, which extends OSHA coverage to public sector employees. Because the extension of such coverage will have costs, it should occur over time, and we welcome further discussion of implementation issues. But there is simply no good argument in the 21st century for allowing public employees to be injured or killed under conditions that would be illegal and strictly punished if they were private sector employees. The days of treating public employee as second class citizens must come to an end.”

Legal Lessons Learned: We all want to reduce firefighter line-of-duty-deaths and injuries; this proposed statute would give OSHA authority over all public and private FDs.

Article 2-19

KANSAS: MEDICAL HELICOPTER CRASH KILLS THREE – LAWSUIT AGAINST MEDICAL CENTER FOR FAILURE TO SUPERVISE THE SUBCONTRACTED FLIGHT SERVICE IS DISMISSED

On Jan. 29, 2010, in Ethan Hauptman (surviving spouse of Jennifer Hauptman) and John F. and Wynema M. Dye (surviving parents of Jonathan Dye) versus WMC, Inc., d/b/a Wesley Medical Center), 224 P.3d 1175, 2010 Kan. App. LEXIS 11, the Court of Appeals of Kansas affirmed the grant of summary judgment in favor of the Medical Center.

On Feb. 17, 2004, a Beach B90 air ambulance crashed while returning to Dodge City Regional Airport after delivering a patient from Mercy Hospital of Independence, Kansas to Wesley Medical Center. The pilot and EMT Jonathan Dye, and RN Jennifer Hauptman died in the crash; both Dye and Hauptman were employees of Ballard Aviation, the operator of the air ambulance service under contract with Wesley Medical Center. The families sued the Wesley Medical Center, alleging that Wesley had failed to perform adequate oversight of Ballard’s operations.

The plaintiff claimed among other allegations:

"c. [Wesley] knew or should have known that the lack of experience, training and qualification of the [Ballard] dispatchers and [Ballard] dispatch department would result in the dispatch of aircraft with pilots who were fatigued and near the limit of their permissible legal duty time.

d. [Wesley] knew or should have known that the aircraft utilized by [Ballard], including EagleMed 4, on February 17, 2004, a Beech B90 registered as N777KU, did not utilize terrain avoidance system technology because their flight operations were a combination

of Part 91 and Part 135 medical service operations.

e. [Wesley] knew or should have known that fatigue and pilot duty hour considerations were so severe at [Ballard] that medical personnel onboard aircraft flights were known to handle aircraft flight duties and responsibilities in order to provide relief for fatigued pilots.”

The trial court granted summary judgment for Wesley Medical Center, since EMT Jonathan Dye and RN Jennifer Hauptman were employees of Ballard Aviation, not the Wesley Medical Center and the Medical Center did not owe them a specific duty of care. Plaintiffs argued on appeal that the Medical Center was negligent in its failure to supervise Ballard Aviation.

The Court of Appeals disagreed:

“Based on the plain language of the contract between Wesley and Ballard, the appellants cannot prove a vital element of their negligent supervision or control claim against Wesley: that Wesley retained control over Ballard's flight operations. Under the contract, it is clear that Ballard maintained control of its flight operations, its aircraft equipment, and its safety obligations. There is nothing to indicate that Wesley assumed a duty to furnish safe transportation of Ballard's employees, to ensure the hiring of competent pilots, or to supervise the pilots of the air ambulance. Further, Wesley neither agreed to maintain control over Ballard's flight operations nor to assume any of Ballard's obligations as an air ambulance provider. Thus, under the plain language of the contract,the appellants are unable to prove their negligent supervision claim.

Wesley's Conduct with Ballard

Moreover, there is no evidence that Wesley retained or exercised control over the details of the work Ballard (through its agents or employees) performed. Wesley did not control Ballard's use of its airplanes. Wesley did not direct Ballard's method of picking up and delivering patients to Wesley's facility. Wesley did not monitor Ballard's flight operations. Moreover, Wesley offered no specifications to Ballard on how to perform its work.

Instead, the undisputed evidence in this case was that Ballard's flight coordinators were responsible for determining the aircraft and the flight crew that would be used for a particular flight. Ballard employees determined the number of pilots and medical crew at each base and assigned the shifts for the pilots and medical crew. Further, Ballard was responsible for hiring, supervising, and providing training to pilots and crew members. In addition, as Wesley points out, there is no evidence that it was in control or directing the air ambulance when it crashed and killed the decedents. Wesley did not dispatch the air ambulance flight on which the decedents were flight crew members. There is no evidence that Wesley directed the return flight path of the air ambulance or dictated the base to which the air ambulance would return. As a result, Wesley was not in control of the air ambulance flight when the decedents were tragically killed, and the appellants cannot pursue a negligent supervision or control claim against Wesley.”

Legal Lessons Learned: In the fire service, fatigue can also be an issue that results in litigation, particularly for part-timers who are on multiple FDs. Consider an SOG that requires personnel coming on duty to advise their OIC if they have not had adequate sleep or are otherwise fatigued.

Article 2-18

OHIO: EMPLOYER INTENTIONAL TORT - OHIO SUPREME COURT UPHOLDS STATUTE MAKING IT MUCH HARDER FOR EMPLOYEES TO SUE FOR WORKPLACE INJURIES – GOOD NEWS FOR FIRE DEPARTMENTS AND INCIDENT COMMANDERS

On March 23, 2010, in Kaminski v. Metal & Wire Prods. Co., the Ohio Supreme Court held (6 to 1) that Ohio Revised Code 2745.01 is “constitutional on the grounds at issue in this case. We accordingly reinstate the trial court’s grant of summary judgment in favor of Metal & Wire.”

http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-ohio-1027.pdf. The Court also similarly decided two other companion cases.

In 2005 the Ohio General Assembly enacted a new statute, effective April 7, 2005, that made it much harder for employees to file lawsuits against their employers seeking damages from a jury for workplace injuries. The legislators wanted to keep most workplace injuries out of the Courts, since injured employees can always file workers comp claims (a no fault system of compensation; but no punitive damages). The 2005 statute has been the subject of intense public debate and litigation in the lower courts.

Ohio Rev. Code 2745.01 provides in part:

“(A) In an action brought against any employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortuous act with the intent to injure another or with belief that the injury was substantially certain to occur.”

(B) As used in this section, ‘substantially certain’ means than an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or both.

(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substances causes a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.”

Legal Lessons Learned: The fire service in Ohio will benefit from this statute; throughout the nation we are seeing increased litigation by injured firefighters against Incident Commanders, mutual aid fire departments and others.

Article 2-17

FED: SEATBELTS – OSHA - EMPLOYEE KILLED IN ROLL-OVER DEATH OPERATING BUSH HOG CLEARING UTILITY RIGHT-OF-WAY - COMPANY FINED $4000 - FOREMAN SUBMITTED FALSE SAFETY REPORTS EVEN THOUGH SEATBELT WAS INOPERABLE FOR PAST SIX MONTHS

On Jan. 18, 2010, in U.S. Secretary of Labor v. Burford’s Tree, OSHRC Docket No. 07-1899, http://www.oshrc.gov/decisions/html_2010/07-1899.htm, OSHA Review Commission held that the company had failed to enforce wearing of seat belts, and was properly cited and fined in the death of the employee. This case should “send a message” to all employers, including FDs that do not enforce their seat belt SOG (even if the FD is not in a state which enforces OSHA regulations).

Burford’s Tree, Inc. is an Alabama-based company which performs utility right-of-way clearing, including mowing using bush hogs for utility companies throughout the Southeast. After the deadly roll-over accident, OSHA issued a citation and proposed $7000 fine. The company requested a hearing and Administrative Law Judge Ken S. Welsh vacated the citation, finding that the company had appropriate policies in place requiring the wearing of seat belts, and should not be fined for “unpreventable employee misconduct.”

OSHA appealed to the Review Commission, which reversed and in rather strong language held company was properly cited and fined:

“On the day of the accident, BTI assigned a two-man crew to mow a utility right-of-way in a hilly off-road area near Wedowee, Alabama. To mow the area, the deceased employee operated a tractor with a mowing device, known as a ‘bush hog,’ attached. He was killed when the bush hog ran over him. His fellow crew member, foreman Michael Mitchell, was in a truck about a quarter mile away and did not observe the accident. Rodney Walker, a reserve deputy, arrived at the worksite within an hour of the accident. According to his undisputed testimony, the tractor had gone off a dirt road and rolled over, apparently ejecting the deceased employee from the tractor cab onto the ground. The record shows, as the judge found, that the seatbelt on the tractor had been inoperable for some time before the day of the accident. Both Walker and the OSHA compliance officer who inspected the worksite six days after the accident made this determination, which is corroborated by photographs of the seatbelt admitted into evidence.

BTI required foreman Mitchell to perform daily inspections of the tractor seatbelt to assess its operability and submit weekly Tractor Safety Inspection Reports (“Reports”) to BTI’s safety department documenting his daily inspections. Mitchell, however, did not inspect the tractor’s seatbelt on the day of the accident, nor had he inspected it during the preceding six-month period. Nonetheless, he submitted weekly Reports to the safety department over this six-month period indicating that he had inspected the seatbelt every day.

Monitoring compliance with BTI’s safety program, including ensuring that seatbelts are operable, is also the responsibility of the company’s safety department. BTI safety director Dennis Jones and his staff conduct field audits, which include determining whether personal protective equipment such as seatbelts are being worn. The safety department is also responsible for reviewing weekly Reports like those submitted by Mitchell. Monitoring to ensure that seatbelts are operable is also conducted by BTI’s general foremen, including James Varnon, who was responsible for supervising foreman Mitchell.

The OSHA Review Commission focused on lack of safety inspections:

ANALYSIS

“In finding that BTI established the affirmative defense of unpreventable employee misconduct and vacating the citation, the judge primarily relied on the field audits conducted by BTI’s safety department, general foreman Varnon’s worksite inspections, and BTI’s requirement that foreman Mitchell perform daily inspections of the tractor’s safety equipment and submit weekly Reports to BTI. Based on our review of this evidence and the remainder of the record, we discern no basis for such a finding. Instead, we find that BTI failed to exercise reasonable diligence in monitoring the operability of the tractor’s seatbelt during the six months prior to the accident, which established the company’s constructive knowledge of the seatbelt’s inoperability over a significant period of time and, therefore, its inability to be worn.

Although foreman Mitchell was required to inspect the operability of the tractor’s seatbelt on a daily basis, he admitted failing to do so for almost six months up to and including the day of the accident. He also admitted to filing weekly Reports that incorrectly indicated he had conducted these daily inspections. As the judge found, if Mitchell had inspected the seatbelt, he would have known that it was inoperable and could not have been worn by the deceased. Furthermore, neither general foreman Varnon nor safety director Jones made adequate efforts to monitor Mitchell’s compliance with this daily inspection requirement or otherwise monitor the operability of the seatbelt.

***

For these reasons, we conclude that the Secretary established that BTI had constructive knowledge of the cited condition.”

Legal Lessons Learned: FDs should enforce their seatbelt SOGs. Even if you are not in an OSHA state, failure to enforce can be very expensive. In Ohio, for example, if a FF is injured in a roll over accident, he can file a VSSR claim on line with the Ohio Bureau of Workers Compensation; if a violation of specific safety requirements is proved, it could cost the FD $728,000; see calculations provided to author of this newsletter by the manager of the Ohio VSSR Unit: www.uc.edu/cas/firescience - OFFICER DEVELOPMENT SEMINARS – SEATBELT. If the FF was killed, then the VSSR investigation file may lead the family of the deceased FF to the file an “intentional tort” lawsuit seeking $ millions in punitive damages from a jury: http://www.cccouncil.com/SVIU/Brochure.pdf.

Article 2-16

FED: BULLET PROOF VESTS – MANUFACTURER OF DEFECTIVE VESTS AGREES TO PAY $4 MILLLION TO SETTLE LAWSUIT FILED BY U.S. GOVERNMENT - $54 MILLION IN TOTAL SETTLEMENTS

On Feb. 12, 2010, the U.S. Department of Justice announced the settlement involving “Zylon bullet-proof vests” with Lincoln Fabrics, Inc., a Canadian weaver of ballistic fabrics, and their American subsidiary. http:///www.justice.gov/opa/pr/2010/February/10-civ-136.html.

These vests were purchased by the U.S. Government from several companies, including Second Chance Body Armor Inc., First Choice Armor Inc. and Point Blank Body Armor Inc. These vests lost their ballistic capacity quickly, especially when exposed to heat and humanity.

In Aug. 2005, the National Institute of Justice issued a report that Zylon degraded quickly. At that time, all American body armor manufacturers stopped using Zylon in body armor. The U.S. Government alleged in their False Claims Act suit that Lincoln Fabrics knew about this defect as early as Dec. 2001.

The U.S. Government has sued other Zylon manufactures, and has settled with six others for $54 million.

Legal Lessons Learned: FDs with Zylon bullet proof vests should replace them immediately.

Article 2-15

OHIO: INTENTIONAL TORT LAWSUITS – FOURTH COURT OF APPEALS TO DECLARE STATUTE REQUIRING PROOF THAT EMPLOYER “INTENDED TO CAUSE INJURY” VIOLATES OHIO CONSTITUTION - MORE INJURED EMPLOYEES WILL BE FILING LAWSUITS IF OHIO SUPREME COURT ALSO HOLDS STATUTE ILLEGAL

On Dec. 18, 2009 in Edward W. Warren v. Libby Glass, Inc., 2009-OH-6686 (Court of Appeals for Sixth District, Lucas County), held (3 to 0) that the Ohio intentional tort statute was unconstitutional. This is the fourth Ohio Court of Appeals to hold the statute is too restrictive. If the Ohio Supreme Court agrees, then Ohio employers (including fire departments) will undoubtedly see more lawsuits by injured employees who seek not only workers comp, but also punitive damages from a jury.

This holding does not, however, help the plaintiff, Edward W. Warren. He had been injured on a cardboard bailer machine, which he claimed had inadequate guarding. His employer proved, however, that (1) there had never been any injuries or even “near misses” with this machinery, and (2) Mr. Warren was never required to work on the machine or to even enter the area where he was injured. The Court of Appeals held that his lawsuit was therefore properly dismissed by the trial court.

In 1999, the prior version of the Ohio intentional tort statute was declared unconstitutional by the Ohio Supreme Court in Johnson v. BP Chems., Inc., 85 Ohio St.3d 298 (1999). On April 7, 2005, the Ohio General Assembly amended the statute in an effort to protect Ohio employers from frivolous lawsuits. The new statute requires injured employees to prove that injury was “substantially certain” to occur. Ohio Rev. Code 2745.01(A) and (B).

Three other Ohio Courts of Appeal have found the 2005 amended statute to be a violation of rights protected by the Ohio constitution. The issue has been certified to the Ohio Supreme Court in Kaminski v. Metal & Wire Prods. Co., 119 Ohio St. 3d 1407, 2008-Ohio-3880; but that court has not yet issued a decision. If the Ohio Supreme Court also declares the statute as unconstitutional, then employees may bring “common law” intentional tort claims seeking damages from a jury.

Legal Lessons Learned: The fire service is collecting “near miss” reports and this is commendable; FDs like other employers, however, must aggressively address safety issues to avoid jury trials.

Article 2-14

WA: GUARD YOUR FIRE POLE OPENINGS - SEATTLE FIREFIGHTER, SEVERELY INJURED WHEN HE FELL THROUGH UNGUARDED FIRE POLE HOLE - AWARDED $12.75 MILLION BY JURY

On October 23, 2009, the Seattle Times reported that the firefighter was on temporary assignment to Station 33 on Dec. 23, 2003, when he walked towards the second floor bathroom in the early morning hours from a dark bunk room, entered the wrong door, and fell through the pole hole to the concrete floor below. He fractured five vertebrae in his lower back, and had lung, bladder and liver injuries. This ended his career as a firefighter; his injuries prevented him from even doing light duty, clerical work. After a six-week trial, the jury awarded him $12.75 million. Lesson learned for all FDs – install metal guard that requires manual opening to the pole.

http://seattletimes.nwsource.com/html/localnews/2010120928_webfirefighter23m.html.

In many jurisdictions, however, workers compensation is your sole remedy against a public employer. Cities and other political subdivisions in many states enjoy governmental immunity. For example, in the civil litigation filed by the families of the nine firefighters who died in 2007 the Sofa Super Store fire in Charleston, SC, the trial judge in August, 2009 ruled that the plaintiffs may not add the City of Charleston as a defendant. This ruling came despite the fact that the FD was fined $42,100 by State OSHA officials for safety violations.

http://www.firerescue1.com/fire-products/incident-management/articles/311536-Charleston-Fire- Department-sofa-store-fined-for-deadly-June-fire/#.

http://www.postandcourier.com/news/2009/aug/18/judge-charleston-not-part-civil-lawsuit-sofa-store/.

In Ohio, for example, firefighters and other public employees have had little success in suing their public employers for damages arising out of workplace injuries. While employees working for a private employer may file "intentional tort"lawsuits seeking damages not reimbursed under workers comp., they face a very difficult burden of proof. The injured employee must prove not only that the employer knew of a dangerous workplace condition, but also that the employer knew that harm was substantially certain to occur.

For example, on May 23, 2009 in Helfinstine v. Plasticolors, 12 Ohio App.3d 430, 2009-Ohio-2442, the Court of Appeals for Ashtabula County upheld the dismissal of an "intentional tort"lawsuit filed by an employee who suffered severe chemical burns to his feat and ankles when the company failed to supply appropriate protective footwear. He was loading dangerous chemicals into a shipping container, wearing a Tyvek pair of coveralls from his neck to his ankles, two sets of gloves, and a respirator hood. The gloves were taped to his arms, and the Tyvek pants were taped to his ankles. He inadvertently kicked over a container which spilled onto his steel toed shoes and his socks. The lawsuit was dismissed because no other employees had ever suffered such injuries. The Court of Appeals quoted from a 2006 decision, "The absence of prior accidents strongly suggests a lack of knowledge by an employer that injury from a particular procedure or process was substantially certain to occur."


Legal Lessons Learned: Guard the poles to prevent inadvertent entry. Even if workers comp is the sole remedy, what a terrible way to end a career in the fire service.

Article 2-13

FIREFIGHTER CANCER - SOOT - IAFC TO PUBLISH ANOTHER ARTICLE

The IAFC (International Association of Fire Chiefs) has kindly agreed to publish a follow-up article by the author of this newsletter on new research being conducted by UC into the dangers of soot. This article will review the Firefighter Cancer / Wellness seminar we hosted at UC on July 12, 2009 (now posted at www.uc.edu/cas/firescience), and the on going research being conducted by UC Medical – Department of Environmental Health. On April 15, 2009, IAFC On Scene published our article, "Firefighter / EMT Safety, Health & Survival: Firefighter Cancers: Soot," http://www.iafc.org (search "Bennett").

SOOT: Fire Department should carefully review their practices on cleaning of turn out gear, and interior cabs of fire apparatus. See the presentation by District Chief Ron Texter, Cincinnati FD’s Health & Safety Officer, at the July 12, 2009 seminar: www.uc.edu/cas/firescience.

NEW RESEARCH: FDs are urged to watch the presentation by Dr. Erin N. Hayes, UC Medical at our July 12, 2009 seminar.

LEGAL ISSUES SEMINARS:

Contact us if your FD might be interested in seminar covering topics in my National Fire Academy course, "Political & Legal Foundations of Fire Protection." The host FD selects the topics to be covered – see 18 topics: www.uc.edu/cas/firescience (ON LINE BENNETT).

Feb. 2009 – Palm Beach, FL and area FDs;

Oct. 31, 2009 – Ohio Society of Fire Service Instructors, Columbus FD;

Oct. 1, 2, 3, 2009 – Rancho Santa Fe FD, San Diego;

Sept. 17, 2009 – Delhi FD and area FDs, Cincinnati;

July 30, 2009 – Mason FD, Warren County, OH.

Article 2-12

OHIO: FIREFIGHTER CANCER / WELLNESS

 On July 12, 2009, UC Fire Science & Emergency Management Department hosted an officer development seminar, which is now posted on our web page: www.uc.edu/cas/firescience. FDs need to focus on the dangers of soot, including safety precautions before removal of SCBAs during overhaul, washing of turn out gear in dedicated washing machines at the station, cleaning apparatus interiors, and taking of showers after structure fires.

 A special "thank you" to Jim Burneka, Regional Director – Ohio, www.FireghterCancerSupport.org, and a City of Dayton firefighter. Jim arranged for two members of their organization who are cancer survivors to speak at our seminar, and now the support organization is sharing the seminar video nationwide.


Legal Lessons Learned: Get an annual physical. If you would like to contact any of the speakers, please send me an e-mail at lawrence.bennett@uc.edu

Article 2-11

HIGH-VISIBILITY SAFETY VESTS – EFFECTIVE NOV. 24, 2008 – LAST MINUTE EXCEPTION FOR EMERGENCY RESPONDERS DIRECTLY EXPOSED TO FLAME, FIRE, HEAT OR HAZARDOUS MATERIALS

 On Nov. 24, 2008, public safety officers, including firefighters and EMS must wear high-visibility vests when responding to an incident on a federal aid highway. On November 21, the Federal Highway Administration revised its regulations in response to fire industry safety concerns; the amended rule provides:

 "§ 634.3 Rule. All workers within the right-of-way of a Federal-aid highway who are exposed either to traffic (vehicles using the highway for purposes of travel) or to construction equipment within the work area shall wear high-visibility safety apparel. Firefighters or other emergency responders working within the right-of-way of a Federal- aid highway and engaged in emergency operations that directly expose them to flame, fire, heat,and/or hazardous materials may wear retroreflective turn-out gear that is specified and regulated by other organizations, such as the National Fire Protection Association. Firefighters or other emergency responders working within the right-of-way of a Federal-aid highway and engaged in any other types of operations shall wear high- visibility safety apparel." [FR Doc. E8–27671 Filed 11–20–08.]

The Interim Final Rule can be read at http://edocket.access.gpo.gov/2008/pdf/E8-27671.pdf.

One of the fire industry comments was submitted by Fire Chief Phil Stittleburg, Chairman of National Volunteer Fire Council. See his July 31, 2008 letter to U.S. Department of Transportation; www.nvfc.org

The original safety vest regulations went into effect for highway workers in the Manual on Uniform Traffic Control on November 24, 2004. See 23 CFR Sec. 634.1: Sec. 634.1,
Purpose: "The purpose of the regulations in this part is to decrease the likelihood of worker fatalities or injuries caused by motor vehicles and construction vehicles and equipment while working within the right-of-way on Federal-aid highways."

See CFR at http://www.gpoaccess.gov/cfr/index.html.

 The former regulation provided:
Sec. 634.2, Definitions. "High-visibility safety apparel means personal protective safety clothing that is intended to provide conspicuity during both daytime and nighttime usage, and that meets the Performance Class 2 or 3 requirements of the ANSI/ISEA 107-2004 publication entitled "American National Standard for High-Visibility Safety Apparel and Headwear.""

        ***

"Workers means people on foot whose duties place them within the right-of-way of a Federal-aid highway, such as highway construction and maintenance forces, survey crews, utility crews, responders to incidents within the highway right-of-way, and law enforcement personnel when directing traffic, investigating crashes, and handling lane closures, obstructed roadways, and disasters within the right-of-way of a Federal- aid highway."

See CFR at http://www.gpoaccess.gov/cfr/index.html.

LEGAL LESSONS LEARNED: Fire & EMS departments must comply with these new regulations. Safety vests should be placed on all apparatus that respond to highways, and they should be worn at all highway scenes.

Article 2-10

NEW MEXICO: FIREMAN’S RULE – NATURAL GAS PIPELINE EXPLOSION – FAMILY OF 12 KILLED - FIREFIGHTERS / EMS MAY PURSUE LAWSUIT AGAINST GAS COMPANY FOR EMOTIONAL DISTRESS – MUST PROVE INTENTIONAL WRONGDOING

On January 23, 2008, in Christopher Lee Baldonado, et al. v. El Paso Natural Gas Company, 143 N.M. 299, 2007 N.M. Lexis 697, the New Mexico Supreme Court held (5 to 0) that while the Fireman’s Rule continues to bar most lawsuits by responding firefighters/EMS, in this case the firefighters and EMS, while not personally injured, had to attend to severely burned adults and children.  They may therefore proceed to a jury trial on their claim of "intentional infliction of emotional distress."

On August 19, 2000, a high-pressure natural gas pipeline (thirty inches in diameter) exploded in the early morning hours near the Pecos River, south of Carlsbad, New Mexico.  A family of twelve were camping nearby.  The escaping gas ignited, creating a fireball that lead to a horror scene.  All twelve members of the extended family, including young children, were either immediately killed during the fire or died later of severe burns.

The plaintiffs are FF and EMS, with both paid and volunteer members of local FDs, who responded to the explosion.  They did not assist in putting out the fire, nor did they suffer any physical injuries.  Rather, they claim they suffered extreme emotional distress in witnessing the severe injuries suffered by the victims when the FF assisted them after the explosion.

In the lawsuit filed by the FF/EMS, they allege that the gas company had negligently designed and maintained the pipeline.  The gas company had been cited for prior safety violations, and had experience at least two prior gas pipeline explosions, one of which involved severe burns.  The lawsuit alleges that this particular pipeline, 50 years old, had similar problems to those involved in the prior two explosions.

The lawsuit was dismissed by the trial court, citing the Fireman’s Rule, which has been the law in New Mexico for past 20 years.  The rule prohibits firefighters from suing for damages sustained while responding to a fire, except where the owner or occupier fails to warn of a known danger, or misrepresents the nature of the hazards being confronted.

The FF/EMS appealed to the New Mexico Court of Appeals reversed and decided that a potion of the lawsuit may proceed; only on the claim of alleged "intentional misconduct" of the gas company.  The gas company appealed, and the New Mexico Supreme Court agreed to hear this appeal.  

The New Mexico Supreme Court held that the Fireman’s Rule should generally remain in effect in New Mexico, but the Court would allow a narrow exception – intentional misconduct claims.  The New Mexico Supreme Court noted that the Fireman’s Rule is based on a public policy rationale.  The rule it encourages the public to dial 911 and summons assistance when they need help, without concern that they would be sued by the responding FF.   

The New Mexico Supreme Court held, "We agree … that there should be a fireman’s rule."  "We take this opportunity, however, to clarify the rule’s definition and scope.  In doing so, we hope to avoid the necessity for myriad exceptions that other states have face."

Plaintiffs must prove:  (1) Defendant’s conduct was intentional or  (2) in reckless disregard of safety.  Recklessness is the intentional doing of an act with utter indifference to the consequences. 

Apply this standard to this case, the FF and EMS personnel may proceed to a jury trial, because:  

·       The natural gas pipeline company has numerous safety regulations, and therefore has a special relationship with emergency responders;

·        The natural gas company can be held liable if the plaintiff’s can prove the company’s  conduct was intentional or in reckless disregard of safety; and

·        FFs must prove their mental distress was extreme and severe, and there is a causal connection between Defendant’s conduct and FFs mental distress.

The Court concluded, "Plaintiffs have thus alleged sufficient facts to support each element of a claim of intentional infliction of emotional distress."   The court cautioned that the Plaintiff FF / EMS have a difficult burden of proof:   "Firefighters will always be subject to some emotional distress when responding to an emergency call.  We must determine whether Plaintiffs have alleged facts sufficient to show their distress could have exceeded the normal scope of distress inherent in their profession; ultimately, it will be up to a jury to determine whether Plaintiff’s stress did in fact exceed that scope."

Legal Lessons Learned:  Several states have modified the Fireman’s Rule, and a few states have abolished it, either by statute or court decision;  check the law in your state.

Article 2-9

Public Safety Officer Death Benefits - U.S. Department Drafts New Rules

September 8, 2008 was the deadline to send comments to the U.S. Department of Justice, on the draft rules they posted in the Federal Register on July 10, 2008. See proposed new rules, http://www.nvfc.org/files/documents/2008-PSOB-Regulations.pdf.

The PSOB program is a one-time payment (currently $303,064) for the families of fire, EMS, police and other public safety officers who die as a result of injuries suffered in the line of duty, or die of heart attacks or strokes sustained within 24-hours of engaging in non-routine line-of-duty activities. The PSOB also covers public safety officers who are permanently disabled as a result of a line-of-duty injury.

The PSOB was established by Congress by the Public Safety Officers’ Benefit Act of 1976, and is administered by the U.S. Department of Justice, Office of Justice Programs. The program has been the focus of much criticism, because of delays and denials of applications for benefits. Lawsuits and appeals have been filed, leading two four opinions in 2006 and 2007 by the U.S. Courts of Appeals for the Federal Circuit, and four additional opinions in 2006 and 2007 by the Court of Federal Claims.

In 2003, The Hometown Heroes Survivors Benefits Act of 2003 was enacted. This caused the Department of Justice overhaul its rules, effective on an interesting memorial date in history: September 11, 2006.

The DOJ has now processed nearly 200 cases since 9/11/06. The DOJ advises that its proposed new rules will "make it somewhat easier for affected claimants to establish their claims."

Here are some of the proposed changes and reasons offered by the DOJ.

• Heart Attack: The current definition "is too narrow to capture some types of sudden cardiac-related deaths." Section 32.3 would be expanded to cover other cardiac arrests, not just two current listed events, myocardial infarctions and sudden cardiac arrests.
• Prior heart disease: The "mere presence of cardio-vascular diseases/risk factors is not dispositive in analysis of what is ‘competent medical evidence to the contrary."
• Non-routine activities: "The PSOB Office’s approach to the term ‘routine’ has been changed and it would be helpful to have the regulation reflect that. *** This proposed rule would treat [a response to an emergency call] as ‘prima facie evidence’ that the action was non-routine."
• Frequency of call: The proposed regulation has "language reflecting that the frequency with which the activity is performed shall not be the deciding factor in determining whether an activity is ‘routine’" [including frequent police responses to domestic violence calls].
• Travel for public safety activity: "Travel in response to a specific request by the employer to perform public safety activity would be treated the same as response to a fire -, rescue-, or police emergency currently is."
• Trainers: Coverage would be expanded to cover trainers in official training programs; "currently only participants who are trainees are covered."
• Intoxication: "The proposed rule would provide additional evidentiary mechanisms for evaluating potentially-disqualifying facts relating to whether or not a public safety officer was intoxicated at the time of death or injury."

Legal Lessons Learned: the PSOB program appears to be improving.

Article 2-8

Mother's tribute to Captain Robin Broxtermen

Article 2-7

TEXAS – Arsonist Started Fire In Back Of Nightclub - Guilty Of Felony Murder For Death of Houston Firefighter

On February 15, 2007, in Jeremy Steven Robinson v. The State of Texas, 236 S.W.3d 260; 2007 Texas App. LEXIS 1102, the Court of Appeals of Texas held that Robinson was properly convicted by a jury of felony murder, in the death of a Houston FF (unfortunately jury imposed life imprisonment, not death). See photo of scene, and read details of fire fighting efforts in NIOSH Firefighter Fatality Investigation Report No. 2004-14, http://www.cdc.gov/niosh/fire/reports/face200414.html

Robinson and two friends, including James Guervara, were involved in a fraudulent check-writing crime ring. Guervara was also in the middle of a nasty a divorce, and child-custody battle with his wife, Ruiz. She worked at the El Festival Ballroom, an after-hours club in Northwest Houston (club was open 4 pm – 7 am). On Sunday, April 4, 2004, Robinson and another bought gas cans and black T-shirts at a Wal-Mart. They met up with Guervara and others and went to a gas station where they were videotaped buying $60 worth of gas. At 5 am they drove to the El Festival Ballroom, saw cars parked in front. Guervara poured gas over the back of the building and Robinson lit the gasoline trail on fire.

Guervara’s wife went to the bathroom inside the El Festival Ballroom, and smelled the heavy odor of gasoline. She went outside, observed the fire in the rear of the building, called 9-1-1 on her cell phone, and ran back in to warn about 50 customers and staff.

The Court of Appeals described the tragic fire scene. “ In response to Ruiz's 9-1-1 call reporting a fire, firemen from Station 50 of the Houston Fire Department arrived and heard customers standing outside say that there were still people inside. Captain James Walterbach decided to do a ‘fast attack,’ in which he and two other firefighters would enter the building and attempt to extinguish the fire and to rescue people who might be trapped inside. Thus, Captain Walterbach, Larry Roberts, and Kevin Kulow entered the building. The interior was dark and smoky, and there was no visibility. The fire hose got tangled on something inside, and the firefighters had to exit. The three firemen entered the building a second time and shot water on different areas to cut down on the smoke and to cool off the building. Captain Walterbach heard on his radio that the fire had vented through the roof, and he considered this unusual. He ordered his men out, but his air regulator malfunctioned, and he passed out immediately afterward. Kulow got separated from the others and was left inside. Roberts made it out. Another firefighter, Abel Sarabia, rescued Captain Walterbach, but could not find Kulow. As soon as Sarabia got out, the building experienced a flashover, which is the point at which everything inside reaches ‘ignition point’ at the same time. At that point, it was impossible to rescue anyone inside. The firefighters could not re-enter the building, and Kulow remained missing. When the fire was under control, firefighters re-entered the building and found Kulow's body; he had died from burning and not from smoke inhalation. Arson investigators determined that 47 samples of debris taken from the scene of the fire all tested positive for gasoline, which indicated a case of arson.” [Footnotes omitted.]

The Texas Court of Appeals upheld Robinson’s conviction of felony murder even though the death was of someone not in the building at the time he set the fire. “ At the outset, it might be tempting to assume that, if one caused the death of someone by setting on fire an occupied building, the death would most likely have been caused to an occupant of the building. Nevertheless, in a case from this Court, a defendant's conviction for felony murder of non-occupants of a building was upheld based on the defendant having set fire to the building. Torres v. State, Nos. 01-01-00999-CR & 01-01-01000-CR, 2002 Tex. App. LEXIS 9114, 2002 WL 31838694, at *3-5 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd) (not designated for publication). The argument that we rejected in Torres was that starting a fire in an empty, freestanding building is not dangerous to human life. 2002 Tex. App. LEXIS 9114, [WL] at *3-5. In Torres, two firefighters lost their lives fighting a fire set by the defendant as he was leaving an unoccupied restaurant. 2002 Tex. App. LEXIS 9114, [WL] at *2.”

The court continued, “It has long been the law that one who commits arson may be found guilty of the murder of a person who died inside the house or by fighting the fire, even though the arsonist did not intend to cause any personal injury by his act. The basis for these decisions is that burning a building within a city often produces certain dangerous consequences, such as (1) firefighters' (or good Samaritans') responding to try to save any occupants and to extinguish the fire or (2) other nearby buildings catching on fire. In these situations, the burning of a building "thereby causes" the death of (1) firefighters (or good Samaritans) who respond to fight the fire, whether or not they actually enter the building and become occupants, or (2) occupants of nearby buildings that catch on fire due to their proximity to the targeted building.”

“Accordingly, we reject appellant's argument that the only deaths that can be ‘thereby caused’ by setting fire to an occupied building are those of the occupants of that building. Furthermore, appellant does not challenge the sufficiency of the evidence proving that he intended to burn an occupied building and that the fire that he started caused the death of Kulow. Thus, having rejected appellant's argument that Kulow had to have occupied the building at the time of appellant's conduct, we overrule appellant's first point of error.” [Footnotes; case citations omitted.]

Legal Lessons Learned: Those who commit arson may be convicted of felony murder for death of occupants, FF and others. FD safety officers / incident commanders should share lessons from this NIOSH report.

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“Larry’s Legal Lessons: Volunteer’s Family Awarded Money after 9/11 Death; Parents battered for justice for years.” Seymour Winuk v. United States, U.S. Court of Federal Claims, June 20, 2007. Article published 7-23-07, in www.firehouse.com; to read article go to this web site and Search, “Bennett.”

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PROPANE EXPLOSION KILLED TWO FF IN JAN. 2007, WEST VIRGINIA - U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD INVESTIGATION - INVITE LOCAL PROPANE COMPANY TO YOUR FD TO DISCUSS SAFETY HAZARDS OF PROPANE

The U.S. Chemical Safety and Hazard Investigation Board (CSB) is conducting an investigation into the January 30, 1997 explosion at the Little General Store in Ghent, WV, which killed four people (including a responding FF) and seriously injured five others, http://www.csb.gov. The CSB is an independent federal agency charged with investigating chemical accidents. This report should be a “must read” for every FF called to a leaking propane tank.

Their Press Statements of Jan. 30, February 1, and Feb. 15, 2007 give some insight into the risks of propane leaks. The store had decided to change gas suppliers, and on the morning of Jan. 30, a technician for Appalachian Heating was preparing to switch propane service from the old propane tank of Ferrellgas Company to the new tank of Thompson Gas Company. The old tank was located near the rear wall of the store, and the new tank was 10 feet away.

At some point in the gas transfer process, there was an uncontrolled leak of propane gas from the old tank. The technician could not stop it, so he called 911 at 10:40 a.m. Two EMTs arrived first by ambulance, soon joined by two volunteer FF from Ghent Volunteer FD who arrived in separate vehicles. Another Appalachian Heating technician showed up to try and stop the leak.

Firefighters observed a “billowing vapor” or mist near the old tank. The mist was traveling along the ground. They recognized the dangers, and warned store employees and others to get out immediately. Unfortunately, some took their time, with one employee hanging a sign on the front door, “Closed due to gas leak.”

At 10:53 a.m. there was a massive explosion, 13 minutes after the initial 911 call. It killed the two Appalachian technicians, and two emergency responders: Captain Frederick Burroughs, age 51, and FF / EMT Craig L. Dorsey, age 21 (to read their bios, see http://www.usfa.dhs.gov, search “Firefighter Fatalities” then go to Fatality Notices).

Legal Lessons Learned: Do not wait for the final report to issue; invite a local propane company to come to your FD and conduct training, and provide every FF with a copy of the fatality notice of Captain Burroughs and FF / EMT Dorsey.

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SAFETY - OHIO SUPREME COURT HOLDS THAT EMPLOYEE WHO WILLFULLY AND REPEATEDLY IGNORED SAFETY WARNING CAN LOSE WORKERS’ COMP TEMPORARY TOTAL BENEFITS

[UPDATE: On 9/27/07, the Ohio Supreme Court granted David Gross’ request that the case be reconsidered. Their Dec. 27, 2006 decision, summarized below, may be modified or even overturned.]

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

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OHIO – FIREFIGHTER WITH PRE-EMPLOYMENT RESPIRATORY AILMENT IS NOT ENTITLED TO PRESUMPTION THAT MEDICAL PROBLEMS OCCURRED ON DUTY

On Dec. 27, 2006, in State ex rel. Worrell v. Ohio Police & Fire Pension Fund, 112 Ohio St.3d 116, 2006-Ohio-6513, the Ohio Supreme Court (7 to 0) held that the statutory presumption in Ohio Rev. Code 742.38 (D) that respiratory ailments of firefighters are incurred while performing official duties did not apply in this case because a pre-employment physical revealed evidence of the ailment. The Ohio Police & Fire Pension Fund denied his application for a medical disability, and the Ohio Supreme Court concurred in lower court decisions refusing to overturn the Pension Fund.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

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PUBLIC SAFETY OFFICERS’ DEATH BENEFITS – REVISED DEPARTMENT OF JUSTICE REGULATIONS IMPLEMENT CONGRESSIONAL INTENT TO BROADEN COVERAGE

 Effective 9/11/06, the U.S. Department of Justice, Bureau of Justice Assistance regulations implement Congressional amendments to the 1976 Public Safety Officers’ Benefit Act, and broaden the definition of the term “firefighter” and “rescue squad or ambulance crews.” As of October 1, 2006, the PSOB payment has been increased to $295,194 for fiscal year 2007. These statutory amendments and new regulations can be read at http://www.ojp.usdoj.gov/BJA/grant/psob/psob_main.html.

The 2006 regulations list the following kinds of public safety officers:

Law enforcement officers;

Firefighters;

Chaplains;

Members of rescue squads or ambulance crews; and

Disaster relief workers.

“Firefighter” under the new regulations means an individual who “(1) Is trained in - (i) Suppression of fire; or (ii) Hazardous materials emergency response; and (2) Has the legal authority and responsibility to engage in the suppression of fire, as (i) An employee of the public agency he serves, which legally recognizes him to have such (or, at a minimum, does not deny (or has not denied) him to have such); or (ii) An individual otherwise included within the definition provided in the Act, 42 U.S.C. 3796b(4).” This U.S. Code provision defines “firefighter” as “includes an individual serving as an officially recognized or designated member of a legally organized volunteer fire department.”

“Rescue Squad or Ambulance Crew” is defined under the new regulations as “members who are rescue workers, ambulance drivers, paramedics, health-care responders, emergency medical technician, or similar workers, who – (1) Are trained in rescue activity or the provision of emergency medical services, and (2) As such members, have the legal authority and responsibility to (i) Engage in rescue activity; or (2) Provide emergency medical services.

“Disaster relief worker” is not further clarified in the regulations, other than to say it is any individual who meets the definition provided by Congress in 42 U.S.C. 3796b(9)(B) or (C). This statute states in 42 U.S.C. 3796b(9):

"public safety officer" means—

(A) an individual serving a public agency in an official capacity, with or without compensation, as a law enforcement officer, as a firefighter, as a chaplain, or as a member of a rescue squad or ambulance crew;

(B) an employee of the Federal Emergency Management Agency who is performing official duties of the Agency in an area, if those official duties—

(i) are related to a major disaster or emergency that has been, or is later, declared to exist with respect to the area under the Robert T. Stafford Disaster Relief and Emergency Assistance Act; and

(ii) are determined by the Director of the Federal Emergency Management Agency to be hazardous duties; or

(C) an employee of a State, local, or tribal emergency management or civil defense agency who is performing official duties in cooperation with the Federal Emergency Management Agency in an area, if those official duties—

(i) are related to a major disaster or emergency that has been, or is later, declared to exist with respect to the area under the Robert T. Stafford Disaster Relief and Emergency Assistance Act; and

(ii) are determined by the head of the agency to be hazardous duties.

Heart Attack / Strokes: The new regulations also implement the 2003 Congressional expansion of death benefits to public safety officers who die of a heart attack or stroke within 24 hours of engaging on duty in “nonroutine stressful or strenuous” activity, or while participating in a training exercise involving nonroutine stressful or strenuous activity. 42 U.S.C. 3796, Section 1201. The International Association of Fire Chiefs issued a press release in August, 2006 announcing they were pleased the regulations require a case-by-case review by the Department of Justice concerning prior medical condition of those who die heart attacks and strokes within 24 hours.

Legal Lesson Learned:Since the PSOB benefits extend only to those rendering services “in an official capacity,” fire & EMS departments should establish paperwork which “officially appoints” personnel, including volunteers. Heart attacks are a major cause of LODDs, and fire & EMS departments should consider implementing annual physicals.

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WORN TIRE ON LIFE SQUAD - DEATH OF FLORIDA EMT

On July 14, 2006, NIOSH issued its Fire Fighter Fatality Investigation Report (F2005-12) on the death of a 22-year-old EMT, www.cdc.gov/niosh/fire/reports/face200512.html . The report focused on the rear tires, which showed “excessive wear”, with “wear bars” and “tread indicators” visible (see photos of the tires in the report). This report and its dramatic photos of the Life Squad wrapped around a tree should be “mandatory reading” for all fire and EMS personnel who perform daily checks of fire and EMS vehicles.

NEWSLETTER IS NOT PROVIDING LEGAL ADVICE;

Posted by UC solely as information and for the benefit of students.

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