Fire & EMS Liability in Ohio What Every Firefighter and … & EMS Liability in Ohio – What Every Firefighter and ... and image are on the line ... • Question: Is a business

Fire & EMS Liability in Ohio –

What Every Firefighter and

EMT Need To Know To Stay Out

of Trouble

Presenters

Greg Laux, Esq.

Sunny Wang, M.D.

Greg Laux

Attorney at Law

Greg Laux

Professional Firefighter/EMT-B

Henrico County Division of Fire – Engine 3, A Shift

Quick Introduction

• Greg Laux, Esq. – Associate Attorney, Wood & Lamping LLP

– J.D. from University of Cincinnati College of Law

– Former volunteer firefighter with the Arlington County Fire

Department in Northern Virginia, where I met my wife Sunny

– Former professional firefighter/EMT-B with 5 years of

experience with two different fire departments in the central

Virginia area – Chesterfield County Fire & EMS and Henrico

County Division of Fire

Sunny Wang

Emergency Medicine Physician

Sunny Wang

Emergency Medicine Physician

Quick Introduction

• Sunny Wang

– Emergency room doctor at Mercy Anderson

Hospital

– First got involved in EMS in undergrad at Duke

University in North Carolina

– Volunteer firefighter/EMT-B with the Arlington

County Fire Department where I met my husband

Greg

Arlington County Volunteer Fire Department

The Road to Cincinnati

• Sunny got accepted to medical school in North Carolina

in May 2003

• I became a full-time paid firefighter in Richmond,

Virginia in December 2003

• We moved to Cincinnati in 2007 for Sunny’s residency

training in emergency medicine at University Hospital

• I started law school at NKU Chase, and then transferred

to UC Law and graduated from there in 2012

Fire & EMS Liability in Ohio –

Outline of Topics • Duty to Rescue

• Ohio Political Subdivision Tort Liability Act –

R.C. 2744

• The Firefighter’s Rule

• Ohio Good Samaritan Act – R.C. 2305.23

• The Fundamental Importance of

Documentation

The Bottom Line on Fire & EMS

Lawsuits in Ohio

• Successful lawsuits against firefighters, EMTs, and

paramedics are VERY uncommon

– Many suits get dismissed or are settled before trial

– The rest are thrown out by the judge before trial on

motions to dismiss or motions for summary judgment

• BUT, we do live in a very litigious society. While the

amount of payouts per lawsuit is decreasing, the total

number of aggregate lawsuits is increasing

Comprehensive National Study

• Total of 76 cases filed against firefighters and

EMTs over the past 5 years*

– Just over 40% of the cases were dismissed

– 5 cases with plaintiffs’ awards or settlements

greater than $1 million

*Source: Prehospital Disaster Med. 1994 Oct-Dec; 9(4):214-20; discussion 221

Major Areas of Fire Department

Liability

• Emergency vehicle accidents

• Insufficient patient refusals and failure to obtain adequate informed

consent

• Abandonment of patients

• Improper restraint of patients

– Kowalski v. St. Francis Hospital and Medical Centers, No. 2013-

04756 (N.Y. 2013).

– “We hold that…a hospital and an emergency room doctor did not

owe an intoxicated patient a duty to prevent him from leaving

the hospital.”

Other Areas of Fire Department

Liability

• Inadequate spinal immobilization

• Failure of equipment

• Failure to check equipment

• Getting lost or delayed during response

• Poor airway management

• Dropping patients

Why are there so few successful lawsuits

against firefighters and EMTs?

• Public Perception of Firefighters and EMS Providers

– still considered a “noble profession” by the public

• Immunity Statutes – provide substantial protection for

emergency services workers

• Plaintiffs’ financial challenges – many would-be

plaintiffs cannot afford the up-front expenses of

hiring an attorney (i.e., retainer fee, hiring expert

witnesses, costs of litigation)

So why are we even having this

presentation?

• We live in a very litigious society

• Lawsuits are expensive and emotionally draining on

everyone involved

• Your job, professional reputation, and image are on the line

• Creative plaintiffs’ attorneys are finding ways around

immunity statutes

• A sense of apathy and indifference inevitably leads to an

increase in the number of successful lawsuits

Key Cause of Lawsuits

• The root cause of most lawsuits against firefighters and

EMTs is a BAD ATTITUDE on the part of the provider.

• Rudeness, laziness, and a failure to communicate

effectively are major contributors to customer

dissatisfaction and lawsuits.

– Example: treating “frequent flyers” like “the boy who

cried wolf”

– Example: developing a sense of complacency and

indifference to “repeat customers”

The Legal System and How Civil

Liability is Established

The Legal System

• Regulation of EMS and Paramedic Practice

• Three Different Levels

– Federal (National Highway Traffic Safety Administration)

– State (Ohio Department of Emergency Medical Services)

– Local (Internal Fire Department-Specific Protocols, SOPs, and SOGs)

The Legal System

• Types of Law

– Constitutional

• U.S. Supreme Court

– Civil

• Statutes

• Case Law

– Criminal

• Statutes

– Administrative

• Rules and Regulations

• Tort Law – “A Civil Wrong”

Unintentional Torts

• Negligence (auto

accidents, personal injury,

dog bites)

• Professional Malpractice

(medical, legal,

accountant)

– Intentional Torts

• Assault, Battery

• Trespass, Defamation

The Legal Definition of Negligence

• Negligence – the act or failure to act as a

reasonably prudent firefighter, EMT, or

paramedic would act under the same or similar

circumstances

• Professional Negligence – Malpractice

– Applies to the “skilled” professions – doctors,

engineers, accountants, architects, lawyers

Elements of a Prima Facie Case of

Negligence

• Four Elements of Negligence

1. Duty of Care

2. Breach of Duty

• Standard of Care

3. Causation

• Actual “But-For” – first domino

• Proximate – second-to last domino

4. Damages

• Money

Duty to Rescue • Is there a general duty to help another person in danger?

• General Rule – “There is no general duty to go to the rescue of a person

who is in peril.”

– L.S. Ayres & Co. v. Hicks, 40 N.E.2d 334 (Ind. 1942).

• Ohio Law – “there is no duty to take affirmative action to aid or protect

another from harm.”

– Estates of Morgan v. Fairfield Family Counseling Center, Inc., 77 Ohio

St.2d 1311, 673 N.E.2d 1311, 1997-Ohio-194, at fn. 2 (Ohio 1997).

• Legal duty?

– No

• Moral duty?

– Yes (at least let’s hope so).

Duty to Rescue

• Do any states impose a duty to help another person in

danger?

– Yes, three of them, but only if it is safe and reasonable

to do so.

• Minnesota – MINN. STAT. ANN. § 604A.01 (2000).

• Rhode Island – R.I. GEN. LAWS § 11-56-1 (2002).

• Vermont – VT. STAT. ANN. tit. 12, § 519(a) (2002).

• But not Ohio.

Duty to Rescue • What about off-duty professional firefighters and EMTs? Do they

have a legal duty to help others in danger?

– No.

• What about off-duty volunteer firefighters and EMTs? Do they

have a legal duty to help others in danger?

– No.

• Does it make a difference if an off-duty firefighter/EMT is wearing

her uniform in a public place when an emergency occurs? (i.e.,

inside a Kroger, McDonald’s, Graeter’s Ice Cream)

– No, but it’s best practice not to wear your official uniform when

you are off-duty.

Exceptions to the No-Duty to Rescue

Rule 1. Existence of a Special Relationship Between Victim and Rescuer

Imposes Duty on Rescuer to Take Reasonable Affirmative Action

to Aid Victim

Common Carrier – Passenger (airlines, trains, buses,

subways)

Innkeeper – Guest (hotel, motel)

Babysitter – Child (contract)

Lifeguard – Swimmer in Distress (contract)

Employer – Employee (contract)

Shopowner – Customer (invitee)


Rule 2. Where the Rescuer is the Cause of the Victim’s Peril

“Danger invites rescue.” Wagner v. International Ry. Co.,

232 N.Y. 176, 133 N.E. 437 (N.Y. 1921).

3. Where There is a Voluntary Undertaking by the Rescuer to

Help Victim and Detrimental Reliance by Victim (or other

available rescuers) on Rescuer’s Promise to Render Aid

A voluntary act, gratuitously undertaken, must be

performed with the exercise of due care under the

circumstances. Briere v. Lathrop Co., 22 Ohio St.2d 166,

258 N.E.2d 597 (Ohio 1970).


Rule Drowning Hypo – A rescuer cannot swim all the way out into the

middle of the ocean to rescue a struggling victim in peril, and

then change his/her mind and decide to swim back to shore

without helping the victim. The rescuer has engaged in a

voluntary undertaking, and a duty of care is triggered.

Estoppel – If a third party actively prevents other potential

rescuers from helping a victim in need of assistance, the third

party cannot take shelter in the “no duty to rescue” rule if the

victim suffers injury as a result.

Example – “No, don’t go for help. I’ll go for help.” You go

for help, then change your mind.


Rule – California • Soldano v. O’Daniels , 141 Cal.App.3d 443, 190 Cal.Rptr. 310 (Cal.

1983).

• Facts: Bar #1 is located across the street from Bar #2. Patron #1 is shot

at Bar #1. Patron #2 witnesses the shooting and comes into Bar #2 and

asks the bartender to call or the police or allow Patron #2 to call the

police to report the shooting. Bartender refuses to call the police and

refuses to allow Patron #2 to call the police. Patron #1 subsequently

dies. Patron #1’s father brings lawsuit against owner of Bar #2.

• Question: Is a business establishment liable for wrongful death if it

denies use of its telephone to a Good Samaritan who explains an

emergency situation is occurring outside and wants to call the police


Rule – California • Court Ruling: Yes. The California appellate court concluded that the

bartender owed a duty to Patron #1 to permit Patron #2 to place a telephone

call to the police or to call the police himself.

• Reasoning: “It is time to re-examine the common law rule of nonliability

for nonfeasance in the special circumstances of this case.” The harm to

Patron #1 was imminent and clearly foreseeable, the certainty of Patron

#1’s injury was undisputed, there was a close connection between the

bartender’s conduct and the injury, and the bartender’s conduct

demonstrated a callous disregard for human life. “Under the circumstances

before us, the bartender’s burden was minimal and exposed him to no

risk: all he had to do was allow the use of the telephone. It would have

cost him or his employer nothing. It could have saved a life.”


Rule – Maryland • Griffith v. Southland Corporation, 94 Md. App. 242, 617 A.2d 598 (Md. Ct.

Sp. App. 1992).

• Facts: Off-duty police officer stops in a 7-11 convenience store with his son

and several of his son’s friends in a pickup truck. Three thugs pull up in

another car, start yelling obscenities at a female member of officer’s son’s

group of friends, and one throws a beer can at officer’s son as truck pulls

away. Officer stops, gets out, and starts walking toward thugs, who throw

another beer can that hits officer in the face. A fracas breaks out between

the three thugs and the officer, and the officer yells “Call the police.”

Officer’s son goes inside 7-11 and yells at store clerk to call the police and

tell them that an officer is down and needs help. Female store clerk refuses

to call police and laughs at officer’s son. Officer’s son watches as the three

thugs take turns beating up his father with a tire iron.


Rule – Maryland • Question: When a police officer is in danger in the course of performing his

duties and asks an employee of a business to call for help by calling 9-1-1,

does the employee have a duty to call for help if he can do so without

danger?

• Court Ruling: Yes. There is a duty to call 9-1-1 when there is no imminent

risk of danger to the caller. A police officer has a reasonable expectation that

people on the scene of an emergency will assist him, and a store clerk’s

refusal to call 9-1-1 is outside the scope of risk inherent in police work.

• Reasoning: “There is no break from precedent because there is no precedent

which permits a bystander to refuse to call 9-1-1 when not exposed to

imminent danger. Even if there were such an uncivilized and shocking

principle, blind allegiance would invite disdain and disrespect for the

courts.”

Breach of Duty

• First responder’s conduct fails to meet the standard of

care

• Standard of Care – what a reasonably prudent first

responder would have done under the same or similar

circumstances

– Scope of practice

– National standard curriculum (NHTSA)

– Local or regional protocols or standing orders

Breach of Duty

• Malfeasance

– Performing a wrongful act

• Misfeasance

– Performing a legal act in a harmful way

• Nonfeasance

– Failing to perform a required act or duty; an

omission

Causation

• Actual Causation (“But-For Test”)

– First domino that falls

– But for the negligent driver running a red light, the

collision would not have occurred.

• Proximate Causation (“Foreseeability Test”)

– Second-to-last domino that falls

– It was foreseeable that the negligent driver’s running a red

light would cause a collision and the subsequent injury to

the other driver

Damages = $$$ • Compensatory Damages (economic and non-economic)

– Economic Damages

• Medical bills and expenses

• Lost wages

• Funeral expenses

– Non-Economic Damages

• Pain and suffering

• Loss of consortium

• Punitive Damages

– Imposed to set an example of the defendant and deter reprehensible conduct

– Generally unavailable unless the conduct was malicious, intentional, reckless,

wanton, willful and gross act of negligence

So, who ultimately decides if you

were negligent?

A jury of your peers.

Why?

“It is assumed that twelve men know more of the

common affairs of life than does one man, that

they can draw wiser and safer conclusions from

admitted facts thus occurring than can a single

judge.” – Justice Joseph Story, U.S. Supreme

Court (1873)

Immunity Laws • Generally, an immunity law does not stop a prospective plaintiff

from filing a lawsuit – but it does make it more difficult for a

plaintiff to recover.

• Provides the first responder with a “get-out-of-jail-free” pass

regardless of how bad the plaintiff’s injuries are.

• Generally, if an immunity statute is in place, a plaintiff must prove

the conduct was more extreme in order to recover.

– Gross or intentional misconduct

– Willful, wanton, reckless misconduct

• State laws differ greatly! Call me if you have specific questions

about firefighter or EMT immunity laws.

Immunity Laws

• How does immunity work?

– Individual firefighter/EMT is sued (and usually the city, village,

township, or county is sued, too, because it is the “deeper

pocket”)

– Defense counsel will review the complaint to see if an immunity

defense can be raised and file a motion to dismiss

– Judge will make an immunity determination first – either

immunity applies or it doesn’t

– If the case proceeds to trial, the plaintiff will then have to prove

that the firefighter/EMT acted willfully, wantonly, or recklessly

Ohio Political Subdivision Tort

Liability Act


Liability Act – R.C. 2744

• Chapter 2744 of the Ohio Revised Code

• “Political Subdivision” – defined as “any body corporate and

politic” responsible for governmental activities in a geographic

area smaller than the state. Includes cities, villages, and

townships.

• Provides a complicated three-tiered analysis for determining

when political subdivisions and their employees are immune

from liability.


Liability Act – R.C. 2744

• Sovereign Immunity Doctrine – “associated with the English

common-law concept that the King can do no wrong.” Butler

v. Jordan, 92 Ohio St.2d 354 (Ohio 2001).

• Haverlack v. Portage Homes, Inc., 2 Ohio St.3d 26 (Ohio

1982) – Ohio Supreme Court abolishes the sovereign

immunity doctrine

• 1985 – Ohio General Assembly enacts Political Subdivision

Tort Liability Act and reestablishes a limited version of

sovereign immunity in Ohio

Ohio Political Subdivision Tort Liability Act –

First Tier of Analysis

• First Tier of Analysis – provides a general grant of

immunity to political subdivisions and their employees

when acting within the scope of their employment.

• R.C. 2744.02(A)(1) – “a political subdivision is not liable

in damages in a civil action for injury, death, or loss to

person or property allegedly caused by an act or omission

of the political subdivision or an employee of the political

subdivision in connection with a governmental or

proprietary function.”

Governmental v. Proprietary Functions

• Governmental Function – includes services that only the government

performs for the purpose of maintaining the public health, safety, and

welfare. Examples of governmental functions include the provision of

police, fire, highway, and public health services.

• Proprietary Function – includes services that a private entity can

perform and that are not uniquely for the benefit of the general public.

A proprietary function is one in which the municipality is acting in a

private capacity for the benefit of the citizens of the city as opposed to

acting in the interest of the general public. Examples of proprietary

functions include operating hospitals, swimming pools, parking

garages, and public utilities.


Second Tier of Analysis • Second Tier of Analysis – provides five exceptions to the general rule that

political subdivisions are immune from liability in tort. R.C. 2744.02(B).

• One Exception Applicable to Fire Departments

1. Negligent operation of a motor vehicle within the scope of employment and

authority, BUT you have these defenses available to you…

– Member of a fire department or fire agency operating a motor vehicle

while engaged in duty at a fire, proceeding towards a fire believed to be in

progress, or answering an emergency alarm and the operation does not

constitute willful or wanton misconduct.

– Member of an emergency medical service owned or operated by a

political subdivision operating a motor vehicle responding to a call for

emergency care, with a valid commercial or driver’s license, and the

operation does not constitute willful or wanton misconduct.


Second Tier of Analysis • Second Tier of Analysis – provides five exceptions to the general rule that

political subdivisions are immune from liability in tort. R.C. 2744.02(B).

2. Negligent performance of acts by their employees with respect to proprietary

functions.

3. Negligent failure to keep public roads in repair and negligent failure to

remove obstructions from public roads (except with respect to bridges over

which the subdivision is not responsible for maintenance and/or inspection)

4. Negligence of employees that occurs within and is due to physical defects

within buildings used in connection with the performance of a governmental

function, including office buildings and courthouses, but not including jails

or other detention facilities.

5. Where liability is expressly imposed by a section of the Ohio Revised Code,

including Sections 2743.02 and 5591.37.


Third Tier of Analysis • Third Tier of Analysis – If one or more of the exceptions to immunity applies,

immunity can be reinstated if a political subdivision can successfully demonstrate

that one of the defenses listed in R.C. 2744.03 applies.

• The following defenses or immunities establish non-liability with respect to

governmental or proprietary functions:

– ….R.C. 2744.03(A)(6)(b) – an employee of a political subdivision is immune

under all circumstances unless one of the following applies…

• The employee’s acts or omissions are manifestly outside the scope of

employment or responsibilities;

• The employee’s acts or omissions were undertaken with malicious

purpose, in bad faith, or in a wanton and reckless manner;

• Liability is expressly imposed by another section of the Ohio Revised

Code.

Different Standards of Immunity

Political Subdivision Immunity vs. Employee Immunity

• Political Subdivision Immunity – a political subdivision is

immune if a fire engine, ladder truck, or heavy rescue vehicle

negligently causes an accident while en route to place where a

fire is in progress unless the operation of the vehicle

constitutes willful or wanton misconduct. R.C.

2744.02(B)(1)(b).

• Individual Employee of a Political Subdivision – an employee

of a political subdivision is immune from personal injury or

wrongful death unless the operation of the emergency vehicle

was performed with malicious purpose, in bad faith, or in a

wanton or reckless manner. R.C. 2744.03(A)(6)(b).


Liability Act – Huh? • Three-Tiered Analysis – Short Version

– First Tier – “You’re not liable.”

– Second Tier – “You are liable.”

– Third Tier – “You’re not liable.”

• “What are governmental agencies, the general public, and now

the courts to make of a section of the Ohio Revised Code that

first says ‘you’re not liable,’ then says ‘you are liable,’ and

then says ‘you’re not’?” Stuckey v. Lawrence Twp. Bd. of

Trustees, 1992 Ohio App. LEXIS 4307, at *10 (5th Dist. 1992)

(Milligan, J., dissenting).

Volunteer Firefighters

• Are volunteer firefighters considered “employees” of political subdivisions

and protected by the immunity provisions of the Act?

– Yes. “A volunteer firefighter who is a member of the fire department

of a municipal corporation is a “fireman” within the meaning of R.C.

2744.01(B) and shall not be held personally liable for damages for

injury or loss to persons or property while engaged in the operation of a

motor vehicle in the performance of a governmental function.”

• Dougherty v. Torrence, 2 Ohio St.3d 69, 442 N.E.2d 1295, syllabus

(Ohio 1982).

• Erie Insurance Group v. Baum, 83 Ohio Misc.2d 1, 677 N.E.2d

1266 (Mun. Ct. 1993)

• Reyes v. Lochotzki, 2006-Ohio-1404, at ¶ 9 (6th Dist. 2006).

Traffic Laws

• In Ohio, are the drivers of emergency response vehicles

subject to normal traffic laws while responding to an

emergency? Can they be criminally prosecuted for violating

traffic laws?

• No. R.C. 4511.041 provides that Ohio’s traffic laws do not

apply to the driver of an emergency vehicle while responding

to an emergency and grants such drivers immunity from

criminal prosecution for violating traffic laws.

• But, the statute does not grant immunity from civil liability for

torts.

Red Lights and Stop Signs • In Ohio, are the drivers of emergency response vehicles

required to slow down and stop (if necessary) at red lights,

stop signs, and other negative right-of-way intersections?

• Yes. R.C. 4511.03(A) – “The driver of any emergency

vehicle or public safety vehicle, when responding to an

emergency call, upon approaching a red or stop signal or

any stop sign shall slow down as necessary for safety to

traffic, but may proceed cautiously past such red or stop

sign or signal with due regard for the safety of all persons

using the street or highway.”

Ohio Case Law

Case Illustrations

Reynolds v. City of Oakwood

• Reynolds v. City of Oakwood, 38 Ohio App.3d 125, 528

N.E.2d 578 (2nd Dist. 1987).

• Facts: Police officer responded to a radio call about a

domestic problem with his siren on full blast and his

lights flashing. He accelerated through a red light and

struck another vehicle broadside with his cruiser. The

vehicle’s occupant sustained significant injuries and sued

the individual officer and his police department.

Case Illustrations

Reynolds v. City of Oakwood • Question: Did the police officer’s driving constitute willful,

wanton, or reckless conduct?

• Court Ruling: Maybe. It was a “real possibility,” and enough

to let the question go to a jury to decide. Although the use of

lights and a siren by a police officer on an emergency call is a

significant factor on the issue of whether the police officer

acted in a willful or wanton manner in responding to the

emergency, it is but one factor and is to be considered in

conjunction with all the other circumstances, e.g., his

proceeding in excess of 75 mph in a 25 mph zone.

Case Illustrations

Reynolds v. City of Oakwood • Reasoning:

– Police officer was inexperienced and untrained in emergency driving

procedures.

– At the time of the crash, the officer was 22 years old, had been on the force

for about two months, and had received about two weeks of training for the

position.

– Officer determined that the radio message about the domestic problem

created an emergency, and he then proceeded at speeds in excess of 75 mph

in a 25 mph zone.

– Residential street was lined with trees which limited both visibility of

approaching vehicles and the audibility of a siren.

– Although the police officer saw the traffic light at the intersection from two

blocks away, by his own admission, he made no effort to slow down.

Case Illustrations

Hunter v. City of Columbus • Hunter v. City of Columbus, 139 Ohio App. 962, 746 N.E.2d

246 (10th Dist. 2000).

• Facts: Firefighter responding to a 911 emergency call in an

engine entered an intersection in the opposing lane of

traffic at 61 mph in a 35 mph zone and collided with

another vehicle. Driver of other vehicle suffered injuries

and brought a lawsuit. Columbus Fire Department had an

internal SOG providing that a vehicle operator should not

travel more than 20 mph over the speed limit when in the

opposing lane of traffic.

Case Illustrations

Hunter v. City of Columbus • Question: Did the firefighter’s driving constitute willful,

wanton, or reckless conduct?

• Court Ruling: Maybe. This is a question for a jury to decide.

• Reasoning: Each case has to be evaluated on its own unique

facts. The court acknowledged the emergency vehicle

operator’s humanitarian motive in trying to arrive at the

location of the emergency quickly, but decided that he did

not necessarily qualify for immunity because whether his

driving was willful, wanton, or reckless was a question for

the jury to decide.

Case Illustrations

Hunter v. City of Columbus • Reasoning: Violation of an internal fire department

driving policy is not considered willful and wanton

misconduct per se, but it can be taken into consideration

by a jury in determining what is a reasonable speed to

protect the safety of all concerned. The (1) use of a siren,

(2) the use of flashing lights, (3) the speed at which the

emergency vehicle is traveling, and (4) whether the

emergency vehicle has crossed left of center are factors for

a jury to consider in deciding whether the driver’s

conduct is willful, wanton, or reckless.

Case Illustrations

Musser v. Pemberville-Freedom Fire Department

• Musser v. Pemberville-Freedom Fire Department, et al., 2007-Ohio-6001,

2007 Ohio App. LEXIS 5245 (6th Dist. 2007).

• Facts: Musser was driving his pickup truck eastbound on State Route 582

in Troy Township approaching the intersection of Route 582 and Bradner

Road. Firefighter Hass was driving a fire engine north on Bradner Road

toward the same intersection. Firefighter Hass was responding to an

emergency call, slowed down as he approached the intersection, but did not

come to a full stop. As Firefighter Hass turned right on Route 582, he

collided with Musser’s truck, causing injuries to Musser and damage to his

pickup truck. Musser filed a lawsuit for his personal injuries and property

damage.

Case Illustrations

Musser v. Pemberville-Freedom Fire Department • Question: Did Firefighter Hass’s operation of the fire engine constitute

“willful and wanton misconduct or reckless disregard for the safety of

others”?

• Court Ruling: No.

• Reasoning:

– Musser (Plaintiff) testified in his deposition that the trees in the woods to

his right as he approached the intersection blocked his view of traffic

traveling north on Bradner Road. He also testified that he did not know

whether the engine’s emergency lights were operating and that he did not

hear a siren, but that he would not dispute the testimony of other witnesses

who said they had heard a siren. Musser also did not dispute Firefighter

Hass’s statement that the fire engine was going 10-15 mph when it entered

the intersection.

Case Illustrations

Musser v. Pemberville-Freedom Fire Department • Reasoning:

– Firefighter Hass testified in his deposition that he had his lights and siren

on and used the air horn before he approached the intersection. He testified

that he did not stop but slowed down as he made the turn, and that he

checked the intersection but did not see the plaintiff’s truck.

– Joseph Ballard, a witness who was driving behind the plaintiff’s truck and

witnessed the accident first-hand, testified in a deposition that he saw the

fire engine before it entered the intersection, that he remembered seeing the

flashing lights on the vehicle but could not recall hearing the siren.

However, the witness confirmed that in the accident report taken at the

scene he stated that he had heard the engine’s siren that day.

– All three firefighters who were riding in the engine with Firefighter Hass

submitted affidavits corroborating his testimony.

Case Illustrations

Anderson v. City of Massillon • Anderson v. Massillon, 134 Ohio St.3d 380, 983 N.E.2d 266

(Ohio 2012).

• Facts: 9-1-1 call received reporting a car fire at 1272 Huron

Road in Massillon, Ohio. Dispatcher initially sends one unit to

respond – Engine 214. Caller indicates car fire located near a

house, so dispatcher sends another unit – Truck 211. Engine

214 leaves station first followed closely by Truck 211. Engine

214 approaches intersection of Walnut Road and Johnson

Street, which has a tree, a utility pole, a fence, bushes, cars,

and a house close to street partially obstructing view of traffic.

Case Illustrations

Anderson v. City of Massillon • Facts: Engine 214 slows down as it approaches the intersection

to ensure that there was no traffic in the intersection before

proceeding through it. Around the same time, Ronald

Anderson, who was taking his grandson – Javarre Tate – to

preschool in a minivan, approaches the intersection, stops at

the stop sign, waits for Engine 214 to proceed. Seconds later,

Truck 211 approaches the intersection going somewhere

between 44-50 mph. The speed limit on Walnut Road was 25

mph. The driver of Truck 211 slows down as she approaches

the intersection but does not see the minivan stopped on the

cross street.

Case Illustrations

Anderson v. City of Massillon • Facts: Ronald Anderson enters the intersection, and Truck 211

broadsides his minivan, crushing Mr. Anderson, ejecting his

grandson, and pushing the van more than 360 feet before it

finally came to rest. Tragically, both Anderson and Tate died

from the impact. Mr. Anderson’s wife – Cynthia – files a

wrongful-death action against the City of Massillon and

firefighters Susan Toles (driver) and Richard Annen

(commanding officer).

Case Illustrations

Anderson v. City of Massillon • Questions:

1. Are the legal standards for “willful, wanton, and reckless” conduct

interchangeable, or are do they describe different and distinct degrees of

care?

2. Does the violation of a statute, ordinance, or departmental driving policy

by a firefighter constitute willful, wanton, or reckless conduct per se?

• Court Ruling: “Willful,” “wanton,” and “reckless” conduct describe

different and distinct degrees of care and are not interchangeable. And the

violation of a statute, ordinance, or departmental policy enacted for the

safety of the public is not per se willful, wanton, or reckless conduct, but it

may be some relevant evidence that may be taken into consideration by a

jury in determining the culpability of a course of conduct.

Case Illustrations

Anderson v. City of Massillon • Rules of Law:

– Willful Misconduct – implies an intentional deviation from a clear duty or from a definite rule

of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposefully

doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury. Tighe

v. Diamond, 149 Ohio St. 520, 80 N.E.2d 122 (Ohio 1948). Willful misconduct is the voluntary

or intentional violation or disregard of a known legal duty.

– Wanton Misconduct – the failure to exercise any care toward those to whom a duty of care is

owed in circumstances in which there is a great probability that harm will result. Hawkins v.

Ivy, 50 Ohio St.2d 114, 363 N.E.2d 367 (Ohio 1977). A person acting in a wanton manner is

fully aware of the risk of the conduct, but is not trying to avoid it and is indifferent to whether

harm results.

– Reckless Conduct – the conscious disregard of or indifference to a known or obvious risk of

harm to another that is unreasonable under the circumstances and is substantially greater than

negligent conduct. Thompson v. McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705 (Ohio 1990).

Reckless conduct is characterized by a substantial and unjustifiable risk of harm to others and a

conscious disregard of or indifference to the risk, but the actor does not desire harm.

The Negligence Continuum

Negligence (inadvertence)

Reckless Misconduct

Wanton Misconduct

Willful Misconduct (intentional)

Bad Really Bad

Case Illustrations

Estate of Burlingame v. Coombs • Burlingame v. Estate of Burlingame and James R. Coombs (“Burlingame

I”), 2011-Ohio-1325 (5th Dist. 2011).

• Facts: On July 4th, 2007, Grace and Dale Burlingame were heading home

from a holiday family picnic at their granddaughter’s house in Canton.

They came to a stoplight that was red and stopped. When the light turned

green, Mr. Burlingame slowly pulled his vehicle into the intersection to

make a left turn. Almost immediately, the Burlingames’ vehicle was struck

by a 20-ton City of Canton fire engine traveling at 40 mph from a

perpendicular direction. The fire engine was driven by Firefighter James

Coombs and Captain Rick Sacco was the officer-in-charge of the engine.

Dale Burlingame was killed instantly, and Grace Burlingame suffered

serious personal injuries and later died from her injuries.

Case Illustrations

Estate of Burlingame v. Coombs • Facts: The traffic signals in Canton had an Opticom Infrared Traffic

Preemption System installed in most of the traffic lights throughout the City.

The Opticom device overrides the usual traffic light pattern and gives

emergency responsive vehicles the right-of-way in the form of a green light.

The siren initiates the preemption system, not the air horn or emergency lights.

Firefighter Coombs immediately activated the fire engine’s lights and siren

after pulling out of the station, but the siren stopped working en route to the

call. When Coombs could not reactivate the siren, Captain Sacco instructed

him to slow down and use the engine’s air horn to alert motorists. Firefighter

Coombs continued to proceed in an emergency response mode in spite of the

malfunctioning siren, and in spite of the fact that the City of Canton trained its

firefighters to convert an emergency response to a non-emergency response if

the siren malfunctioned during a run.

Case Illustrations

Estate of Burlingame v. Coombs • Facts: As Firefighter Coombs approached the intersection on a red light, he

could see the cross-traffic stopped. An ambulance driving with its siren

activated first passed through the intersection while the Burlingames’ vehicle

was stopped at the red light. The traffic light turned from red to green after the

ambulance passed through the intersection, and the Burlingames had the right

of way. As he approached the intersection, Firefighter Coombs sounded the

engine’s air horn and was traveling at a speed between 35 to 40 mph. Coombs

thought he saw his traffic light turn green, but he was wrong. Coombs saw the

Burlingames’ van pull into the intersection and attempted to avoid hitting it by

swerving left of center.

• Expert Witnesses: Two experts testified that Firefighter Coombs and Captain

Sacco either know or should have known that continuing an emergency

response without their siren caused a substantial risk of harm to the public.

Case Illustrations

Estate of Burlingame v. Coombs • Questions: Did Firefighter Coombs’s operation of the fire engine constitute

willful or wanton misconduct, and was his operation of the emergency

vehicle performed with malicious purpose, in bad faith, or in a wanton or

reckless manner?

• Court Ruling (“Burlingame I”): Maybe.

• Reasoning: Violations of a traffic statutes and internal fire departmental

driving policies are factors for the jury to consider in determining whether

Firefighter Coombs’s actions were reckless. “In this case, the

circumstances are extreme enough that evaluation of whether the

recklessness of was great enough to be reckless or wanton misconduct is a

matter of the trier of fact.” Plaintiffs should be allowed to present their case

to a jury who will decide whether Firefighter Coombs was reckless.

Case Illustrations

Aftermath of Estate of Burlingame v. Coombs

• City of Canton and Firefighter Coombs appeal to the

Ohio Supreme Court, which agreed to hear the case.

• While the appeal was pending, Anderson v. Massillon is

decided, where the Ohio Supreme Court provides distinct

definitions of “willful,” “wanton,” and “reckless”

conduct.

• Ohio Supreme Court sends the case back down to the 5th

Appellate District with instructions to decide it again

under these new definitions outlined in Massillon.

Case Illustrations

Aftermath of Estate of Burlingame v. Coombs • Burlingame v. Estate of Burlingame and James Coombs (Burlingame II),

2013-Ohio-3447 (5th Dist.).

• Court Ruling: Reversed and remanded. Court sends case back to trial court

with instructions to apply the new definitions of “willful,” “wanton,” and

“reckless” conduct as defined by the Ohio Supreme Court in Massillon.

• Reasoning: Trial judge erred by finding that violations of internal

departmental driving procedures of the City of Canton Fire Department

were not relevant to a finding of malice, bad faith, or wanton or reckless

manner. Although the violation of a statute, ordinance, or departmental

policy enacted for the safety of the public is not per se willful, wanton, or

reckless conduct, it may be relevant to determining the culpability of a

course of conduct.

Case Illustrations

Mashburn v. Dutcher • Case: Mashburn v. Dutcher, 2012-Ohio-6283 (5th Dist. 2012).

• Facts: Volunteer firefighter responded to the fire station from

his home in his personal vehicle to respond to a 911

emergency call. Firefighter drove in opposing lane of traffic to

pass two vehicles in front of him in a legal passing zone and

struck a vehicle turning left in front of him. The vehicle

flipped onto its side and driver died two days later from

injuries sustained in collision.

Case Illustrations

Mashburn v. Dutcher • Questions: Was the firefighter responding to an “emergency

call”? Was the firefighter’s driving of his personal vehicle

done “with malicious purpose, in bad faith, or in a wanton or

reckless manner”?

• Court Ruling: Yes, and no.

Case Illustrations

Mashburn v. Dutcher • Reasoning:

– "Emergency call" means “a call to duty, including, but not limited

to, communications from citizens, police dispatches, and personal

observations by peace officers of inherently dangerous situations

that demand an immediate response on the part of a peace officer.”

R.C. 2744.01(A).

– No evidence that the volunteer firefighter operated his vehicle in a

manner which was with a malicious purpose, in bad faith, or in a

wanton or reckless manner, and no evidence in the record that the

firefighter operated his vehicle in violation of his fire department’s

internal policies and guidelines or in violation of any traffic laws.

Case Illustrations

Campbell v. Massucci • Case: Campbell v. Massucci, 190 Ohio App.3d 718, 944

N.E.2d 245 (11th Dist. 2010).

• Facts: Assistant Fire Chief for the City of Geneva crashed into

a pedestrian at an intersection while responding to a 911

emergency call. The injured pedestrian suffered significant

injuries as a result of the accident and sued the Assistant Fire

Chief and the City of Geneva Fire Department.

• Question: Did the Assistant Fire Chief’s operation of the

vehicle constitute willful, wanton, or reckless conduct?

• Court Ruling: Maybe. This is a question for a jury to decide.

Case Illustrations

Campbell v. Massucci • Reasoning:

– Assistant Fire Chief’s vehicle was not equipped with overhead

lights or a siren.

– Fire department’s own policy manual required vehicles without

lights or sirens to comply with all state and local laws, including

coming to a full stop at all stoplights and stop signs.

– Assistant Chief was traveling 51 mph in a 35 mph zone and in

the opposing lane of traffic when the collision occurred.

– Bottom Line – too many disputed issues of material fact in play

for a judge to decide that the Assistant Chief and fire department

were entitled to immunity.

The Firefighter’s Rule

The Firefighter’s Rule • Firefighter’s Rule – an injured firefighter may not

recover from one whose only connection to the injury is

that his or her negligence caused the fire. Because fires

cannot be reasonably anticipated, the owner of private

property is generally not liable to firefighters who enter

the premises and are injured while performing their

official duties.

– Hack v. Gillespie, 74 Ohio St.3d 362, 658 N.E.2d 1046

(Ohio 1996); Held v. City of Rocky River, 34 Ohio

App.3d 35, 516 N.E.2d 1272 (8th Dist. 1986).

The Firefighter’s Rule • Rationales

1. Assumption of Risk – recovery in tort is barred when the

firefighter voluntarily encounters particular hazard (“inherent risk

of the job”)

2. Voluntary Assumption of Duties and Foreseeable Risks of

Employment – by accepting employment, it is a firefighter’s duty

to confront hazardous situations, and he cannot complain of

negligence in the creation of the very hazard he is employed to

mitigate

3. Cost-Spreading – firefighters are already provided with tax-

supported salaries, workers’ compensation, and special public

servant benefits. Allowing recovery in tort would be duplicative.

Exceptions to the Firefighter’s Rule

• Exceptions – An owner or occupier of private property can be held liable to

a firefighter who enters premises and is injured in the performance of his or

her job duties if…

– The injury was caused by the owner’s or occupier’s willful or wanton

misconduct or affirmative act of negligence.

– The injury was a result of a hidden trap on the premises.

– The injury was caused by the owner or occupier’s violation of a duty

imposed by statute or ordinance enacted for the benefit of firefighters.

– The owner or occupier was aware of the firefighters’ presence on the

premises , but failed to warn them of any known and hidden danger.

• Scheurer v. Trustees of Open Bible Church, 175 Ohio St. 163, 192

N.E.2d 38, paragraph two of the syllabus (Ohio 1963).

The Good Samaritan Act


• Ohio Good Samaritan Act – R.C. 2305.23

The Good Samaritan Act • What does the Act say?

– “No person shall be liable in civil damages for

administering emergency care or treatment at the scene

of an emergency outside of a hospital, doctor’s office, or

other place having proper medical equipment, for acts

performed at the scene of such emergency, unless such

acts constitute willful or wanton misconduct.” R.C.

2305.23.

– Bottom Line – don’t leave an injured person worse off

than you found him or her, and you’ll be fine

The Good Samaritan Act • What does the Act say?

– “Nothing in this section applies to the administering of such care or

treatment where the same is rendered for remuneration, or with the

expectation of remuneration, from the recipient of such care or

treatment or someone on his behalf. The administering of such care

or treatment by one as a part of his duties as a paid member of any

organization of law enforcement officers or fire fighters does not

cause such to be a rendering for remuneration or expectation of

remuneration.”

– The Bottom Line – health care providers who render gratuitous

emergency care to an injured person with the expectation of being

compensated for it do not get the benefit of the Act’s protection


• General Rule #1 – if you decide to help out an injured

person in need during an emergency, that same person

cannot turn around and sue you for money damages unless

they can prove that you left him worse off than you found

him.

• General Rule #2 – the protections of the Good Samaritan

Act do not apply to off-duty health care providers who

decide to stop and render aid to an injured person with the

expectation of being paid for the care they provide. This

violates the spirit of the Good Samaritan Act.

Case Illustration – Exception

Van Horn v. Watson • Case – Van Horn v. Watson, 45 Cal. 4th 322 (Cal. 2008).

• Facts: Plaintiff, a passenger in a car involved in a traffic accident,

sued a friend who removed her from the car, alleging that the

friend’s actions caused the plaintiff permanent injury and rendered

her a paraplegic.

• Trial Court: Ruled in favor of defendant on the ground of statutory

immunity under California Good Samaritan Act.

• California Supreme Court – Ruled that the California Good

Samaritan Act, which immunizes from liability a person who

renders emergency care at the scene of an emergency, does not

apply to persons rendering non-medical assistance.

The #1 EMS Liability Risk

Ambulance Accidents

• Tens of thousands every year

• Speeding through negative right-of-way intersections (i.e.,

stoplights, stop signs, etc.)

• Failure to use lights and sirens

• Inappropriate or overuse of lights and sirens

• Held to standard of a reasonably prudent driver in an

emergency situation under the same or similar circumstances

$117 Million Lawsuit

November 6, 2008

FDNY

January 14, 2010

White Township, New Jersey

Emergency Vehicle Accident

Prevention • Refocus “attitudes” about driving

• EVOC and simulation training

• Use of Vehicle and Traffic Monitoring Systems

– DriveCam

– OptiCom

– Road Safety

• Obey vehicle and traffic laws

Safety, Safety, Safety!!!

• If you arrive at the scene 30 seconds

late, no one will remember. But if

you arrive 30 seconds early and kill

someone on the way, no one will

forget. REMEMBER, IT’S NOT

YOUR EMERGENCY!

Informed Consent & Patient

Refusals

Informed Consent and Patient Refusals

• Patients must have the mental capacity to

consent to and refuse medical treatment.

• EMS providers have a duty to fully disclose

the material risks to patients so that they are

fully aware of, appreciate, and understand the

benefits and risks of choosing to refuse

medical treatment.

Informed Consent

• Legal Definition:

– Informed authorization given by a patient,

who is both mentally and legally

competent, to emergency medical

services personnel for the provision of

medical care and/or transportation.

Informed Consent

• Elements of Consent

–Legal capacity (of age)

–Mental capacity (alert & oriented)

–Knowledge (appreciation of risks and

benefits of decision)

• Together, the elements of INFORMED

CONSENT must be present and documented

Legal Capacity

• Minors

–Generally, persons under the age of 18

–State laws typically contain some

exceptions

• Adjudication of Incapacity – typically done

by local probate court

Mental Capacity • Intoxication

• Organic brain disease

– Alzheimers’ disease

– Senile dementia

• Situational medical crises

– Hypoxia

– Hypoglycemia

– Head trauma

• Absent intoxication or drug overdose, a finding of mental incapacity

requires a relatively high threshold of proof

Knowledge

• Information that a reasonable person under

the same or similar circumstances would

find objectively necessary, important, and

material to his or her medical decision-

making

• Measured by an objective standard, not a

subjective standard

Patient’s Refusal of Emergency Care

• Basic Rule:

–A properly informed patient who is both

legally and mentally competent has a

right to refuse any and all medical care,

even if that medical care would save his

or her life

Case Illustration

Browning v. West Calcasieu Cameron Hospital

• Case: Browning v. West Calcasieu Cameron

Hospital, 865 So.2d 795 (La. Ct. App. 2003).

• Facts: Jewell and her husband Billy were visiting

their daughter when Jewell became ill. Jewell

refused to go to the hospital and daughter called

an ambulance. Ambulance from West Calcasieu

Cameron Hospital (WCCH) arrived with 2

paramedics.

Case Illustration


• Facts Cont’d: Paramedics assessed Jewell’s condition, and she

refused to be transported to the hospital. Paramedics asked

Jewell about her medical history and told her she was probably

suffering from a “heat-related illness.” Paramedics had Jewell

sign a form stating she refused to be transported to the

hospital. A few hours later, Jewell’s daughter again called for

an ambulance. When the paramedics arrived, Jewell did not

have a pulse and was in ventricular fibrillation. Paramedics

started CPR and shocked Jewell once, which started her heart

back on a regular rhythm. Jewell was taken to the hospital

where she died the next day.

Case Illustration


• Lawsuit: Jewell’s husband Billy and the children

(plaintiffs) filed suit alleging the hospital was liable

for the paramedics’ negligence in their treatment of

Jewell.

• Trial Outcome: The hospital moved for summary

judgment, which the trial court denied. Case went to

the jury, which returned a verdict for the plaintiffs.

• Hospital appealed.

Case Illustration


• Hospital’s Argument: The hospital argued it was entitled to

immunity under LA. REV. STAT. ANN. § 40:1233, which states

that immunity can apply “if the care was provided while the

paramedic was performing his duties and the paramedic was

following the instructions of a physician.”

• Court Ruling: Lousiana Court of Appeals disagreed and ruled that

a “factual dispute” existed about whether the paramedics adhered

to WCCH’s protocols because one paramedic testified that he did

not even read the form about refusing transport to the hospital to

Jewell and failed to inform her that she might have a heart

problem.

Case Illustration


• Court Ruling Cont’d: Jewell’s signing of the

refusal form DID NOT waive her right to sue

the hospital (as the hospital argued) because

the paramedics failed to include the required

information in the refusal form about possible

risks, dangers, and potential bad outcomes of

refusing to go to the hospital.

Lessons Learned

• EMTs and paramedics must ensure that the patient is FULLY

INFORMED of all the risks and consequences of refusing medical

care before obtaining a refusal.

• Follow ALL applicable protocols when dealing with patient refusals.

• DO NOT HESITATE to consult on-line medical control in difficult

cases or grey areas that just “don’t feel right.”

• Make sure refusal form is completely filled out and fully explained, and

leave a signed copy with the patient.

– Get an impartial witness to sign the refusal, if one is available.

• Consider placing patient in police custody or possible mental health

commitment in serious cases.

The Fundamental Importance of Proper

Documentation • “If you don’t write it down, it didn’t happen.”

• “If you do write it down, that is what happened…unless the

other party can prove with absolute certainty that it didn’t.”

• Try to get an impartial and disinterested witness to sign your

patient refusals.

• If you are involved in an accident while operating an

emergency vehicle, gather eyewitnesses and take statements

from them. Write down everything you remember as soon as

you get back to the fire station while the details are still fresh

in your mind.

The Fundamental Importance of Proper

Documentation • Date and time-stamp your notes. Keep them in a safe

place. Your notes will serve to refresh your recollection

later if you are deposed or subpoenad to testify at trial.

• Your notes can also serve as exhibits that may be read

into court record later on if the matter proceeds to trial.

• Talk to your fellow co-workers and try to put together a

consistent sequence of events of what occurred.

• If you feel it is necessary, contact an attorney for advice

and counsel. We are here to help you.

Thanks for your attention!

Good luck and be safe out there!

Documents

Fire & EMS Liability in Ohio What Every Firefighter and … & EMS Liability in Ohio – What Every Firefighter and ... and image are on the line ... • Question: Is a business