Fire Service Law Consensus Standards

Fire Service Law

Consensus standards are developed by specific industries in order to set forth broadly accepted standards of care and operations for certain practices. Standards are an effort by the industry or profession to self-regulate by setting up minimal operating, performance, or safety standards, and they institute a recognized standard of care. They are written by consensus committees made up of industry representatives and other affected parties. The NFPA has a lot of standards which affect fire departments. The standards should be followed in order to protect fire and rescue personnel from needless workplace hazards and for the reason that they create the standard of care that may be used in civil lawsuits against fire and rescue departments (NFPA Standards, n.d.).

In most instances, observance of NFPA standards is voluntary. Yet, in some cases, Federal or state OSHA agencies have included phrasing from NFPA standards into regulations. In these cases, the observance of the standards is obligatory. Despite whether compliance with an NFPA standard is voluntary or obligatory, fire and rescue departments must think about the impact of voluntary standards on private litigation. In some states, a department may be responsible for the careless performance of their duties. Even in states that guard rescue workers under an immunity statute, most state laws do not guard fire or rescue departments for grossly careless acts. In essence, negligence involves the violation of a standard of care that results in injury or loss to a person or organization. In establishing the standard of care for rescue operations, the courts will regularly look to the voluntary standards issued by NFPA and other organizations. Even though voluntary in name, these standards can become, in effect, the legally enforceable standard of care for fire or rescue department. For that reason, fire and rescue departments should pay close attention to appropriate standards (NFPA Standards for Fires Services, n.d.).

NFPA 1001: Standard on Professional Qualification for Firefighters

This standard identifies the minimum necessities for fire fighter candidates and for those at the Firefighter I and Firefighter II levels. This necessitates consciousness with specific actions, gear, and conditions outlined in the standard. This standard is utilized as the foundation for curriculum for Firefighter I and II courses (NFPA Standards, n.d.).

Putting in place a minimum training standard for Firefighter training like what is found in NFPA 1001 provides a foundation of training for entry level, career or volunteer firefighters. The NFPA 1001 standard identifies the minimum job performance requirements for career and volunteer fire fighters whose responsibilities are first and foremost structural in nature. The purpose of this standard is to make sure that people meeting the requirements of this standard who are engaged in firefighting are competent. It is not the intention of the standard to limit any jurisdiction from going beyond these necessities (NFPA 1001 Standards as Minimum Training Standard for Firefighters, 2011).

The use of this standard in several court decisions can be seen in the cases below.

IAFF Local 136 v. City of Dayton 157 Ohio App. 3d 236; 2004 Ohio 2728; 810 N.E.2d 457; 2004 Ohio App.

Defendants, the Dayton, Ohio, Civil Service Board, the Dayton, Ohio, City Commission, and ten individual city officials, appealed from the decision by the Montgomery County Common Pleas Court (Ohio) sustaining the motion of plaintiffs, firefighter and police unions and fifteen people, for declaratory judgment and injunctive relief.

Plaintiffs had challenged the fire diversity plan disseminated and about to be put into practice by defendants. Defendants claimed the trial court did not hold fast to the Ohio Supreme Court's decision in King v. Emmons, which broadly defined the key phrase competitive examination found in the civil service section of Ohio Const. art. XV, § 10. The appeals court found that as the Supreme Court had widened the scope of competitive examination to comprise other factors than scores on a written or oral examination, the same analysis had to apply to the Dayton, Ohio, City Charter, which stood in association as a constitution to the new and somewhat contentious civil service rules examined in the instant case. Defendants had power under the city charter to put into practice new rules through the Civil Service Commission to seek the goal of diversity in the city's departments following King. Defendants' second argument, that a failure to give security prohibited the case from meet the criteria as a taxpayer's action, was not addressed by the trial court, and the appeals court had banned a claim for a taxpayer's action when the taxpayers-plaintiffs did not post any security.

The first assignment of error was sustained and that part of the judgment of the trial court was reversed. The second assignment of error was overruled, and the decision of the trial court finding the action to be a proper taxpayer's suit was affirmed. The case was remanded to the trial court for further proceedings as proper.

Columbus Civil Service Commission v. McGlone 82 Ohio St. 3d 569; 1998 Ohio 410; 697 N.E.2d 204; 1998 Ohio

Appellant city challenged a decision of the Court of Appeals for Franklin County (Ohio), which upheld a finding of discrimination toward appellee firefighter candidate because of his nearsightedness, but reversed the trial court on the remedy, finding that the remedy ordered by the Ohio Civil Rights Commission was supported by reliable, probative, and substantial evidence.

Appellee firefighter candidate failed the necessary vision test because his uncorrected vision was 20/100 rather than the required 20/40, so he was removed by appellant city from its eligibility list. Appellee filed a charge with the Ohio Civil Rights Commission (OCRC), alleging that appellant had discriminated against him on the basis of a handicap, his visual impairment. The OCRC found discrimination, awarded back pay, and ordered appellant to offer appellee employment as a firefighter. Appellant sought judicial review. The trial court upheld the discrimination finding, but reversed the remedy. The appellate court affirmed the discrimination finding, but reversed on the remedy, holding that the OCRC remedy was supported by the evidence. On further appeal, the court reversed, finding that appellee was not handicapped by appellant under the former Ohio Rev. Code § 4112.01(A)(13) because his nearsightedness did not cause a considerable hardship in his everyday living and working, and appellee's vision did not disqualify from a class or wide range of jobs, only from one position. The court also concluded that there was no evidence that appellant perceived appellee as handicapped.

Judgment upholding a discrimination finding against appellant city and back pay and a job offer for appellee firefighter candidate was reversed because appellee's nearsightedness did not constitute a handicap under Ohio's handicap discrimination law where his ability to live and work on a day-to-day basis was not significantly impaired and he was not perceived as handicapped by appellant.

Pflanz v. City of Cincinnati 149 Ohio App. 3d 743; 2002 Ohio 5492; 778 N.E.2d 1073; 2002 Ohio App.

In an action for failure to accommodate a disability in violation or Ohio Rev. Code Ann. § 4112.02(a), plaintiff, a former city employee and firefighter, appealed the judgment of the Court of Common Pleas of Hamilton County (Ohio) that granted summary judgment in favor of defendant city.

After being medically separated because of a back injury, the employee joined an internet discussion group, and made abusive remarks about the city fire department and the mayor. As a result, the fire department issued a hazard poster, warning other firefighters about letters and packages from the employee. After being granted workers' compensation benefits for a psychological condition which stemmed from his back injury that had led to his separation, and the hazard poster, the employee filed suit against the city for failure to accommodate his injury, as well as in vengeance for asserting his right to be accommodated. He also alleged federal and state claims relating to the hazard poster. The trial court granted the city's motion for summary judgment. The appellate court found that because lifting was not a major life activity under Ohio Rev. Code Ann. § 4112.01(A)(13), the employee's argument that he was considerably limited in the major life activity of lifting failed as a matter of law. Additionally, he failed to establish that a vacancy existed in a lot of positions elsewhere in the city, or that they were reasonable accommodations. The judgment was affirmed.

All three of these cases had to do with the law upholding the minimum standards that had been put into place by NFPA 1001: Standard on Professional Qualification for Firefighters. This standard has been put into place in order to make sure that those people who are hired to be firefighters are the most competent people available to do this job. The job leaves no room for incompetency due to its nature.

NFPA 1021: Standard on Fire Officer Professional Qualifications

This standard identifies the minimum job performance requirements necessary to perform the duties of a fire officer and particularly identifies four levels of progression (NFPA 1021: Standard for Fire Officer Professional Qualifications, 2011).

The use of this standard in several court decisions can be seen in the cases below.

Kevin Golden v. Town of Collierville 06a0062n.06; 167 Fed. Appx. 474; 2006 U.S. App.

Plaintiff firefighter appealed a decision of the United States District Court for the Western District of Tennessee, which granted summary judgment in favor of defendants, a town, its administrator, a fire chief, and an assistant fire chief, on his procedural due process and equal protection claims under 42 U.S.C.S. § 1983. The district court also dismissed the firefighter's claims for civil conspiracy under state law.

The firefighter, who was white, claimed that he was offered but then denied a promotion to the position of fire lieutenant because of his race. Instead, another firefighter who was black was promoted to the position. Defendants argued that the black firefighter was promoted because he ranked above the white firefighter in the testing and interview process. On appeal from the district court's decision, the court held: the district court properly granted summary judgment on the firefighter's procedural due process claim because the town preserved the discretion to rescind the firefighter's promotion after it was proposed and, therefore, the firefighter did not have a constitutionally protected property interest in the promotion; the district court correctly granted summary judgment on the firefighter's equal protection claim because the town's desire to avoid discrimination against minorities was inadequate to support an inference that the town discriminated against white employees; and the district court did not abuse its discretion in declining to hear the firefighter's state law civil conspiracy claims because all of the federal claims had been dismissed. The court affirmed the district court's decision.

Biondo v. City of Chicago 2002 U.S. Dist.

In litigation brought by plaintiff firefighters against defendant city for race discrimination in promotions, the court, at two damages trials, excluded proffered testimony of the city's expert regarding the probabilities of promotion to the rank of captain and to the rank battalion chief. The instant opinion contained the court's reasoning for the exclusion.

The jury determination to which the expert's testimony as to probabilities was aimed was the chance of promotion each firefighter lost as a result of the city's discrimination. The expert testified that he did not think there was a scientific approach to determining individual probabilities of promotion. He instead divided the number of jobs by the number of candidates for those jobs, applying the quotient to all firefighter applicants, without considering any individual factors. The court found that the jurors could perform this simple calculation without expert testimony. The appropriate approach, however, was to use the qualities and circumstances of each applicant whose lost-chance was to be determined. The court further found that the expert's qualifications were inadequate. He never taught any courses in statistics, probability, or mathematics, and never published any writings on those topics. He had never been accepted as an expert witness by any court, state or federal. The expert also demonstrated inadequate knowledge and skill as to the subject matter about which he was opining, and his testimony was not based on sound methodology or reliable principles and methods. The court excluded the city's expert's testimony at the damages trials.

Gary L. Knapp et al. v. City of Columbus 06a0472n.06; 192 Fed. Appx. 323; 2006 U.S. App.

Plaintiff employees sought review of an order from the United States District Court for the Southern District of Ohio, which granted summary judgment to defendants, a city and several of its officials, in their action under the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C.S. § 794 et seq., and Ohio handicap discrimination law.

The employees were all diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and were all denied their requested accommodations for a promotion test. They individually sued defendants for violations of the ADA, the Rehabilitation Act, and Ohio's discrimination law. Their cases were later merged. Defendants moved for summary judgment, and the district court granted their motion. On appeal, the court affirmed. The court found that the employees' admission that their medication controlled their ADHD symptoms prohibited them from making a prima facie case that they were disabled and removed any need to think about whether their ADHD considerably limited their ability to learn. Neuropsychological evaluations and the employees' many claims that ADHD affected them in their daily lives did not create any issue of material fact. The court affirmed the district court's decision.

These three cases all showed examples of how the court has applied NFPA 1021: Standard on Fire Officer Professional Qualifications to numerous situations. This standard has established minimum qualifications that a person must have in order to be a firefighter. Again because of the nature of this job it is important that the most capable and qualified people are hired and then promoted.

NFPA 1500: Standard of Firefighter Health and Safety

This standard provides guidelines for setting up, putting into practice, and managing a complete safety and health program. Among the requirements are:

develop a risk management plan and an occupation safety and health policy appoint a fire department safety officer set up an occupational safety health committee maintain records on all job-related incidents train all fire department members to carry out their assigned duties safely properly state, uphold, and repair all vehicles, and train drivers and passengers use and maintain protective clothing and equipment suitable to each member's duties apply an incident management system for emergency operations, including risk management systems and suitability systems make sure that facilities comply with all applicable health, safety, building and fire codes medically appraise and certify members provide a member assistance program (NFPA Standards, n.d.).

Petersen v. City of Mesa 207 Ariz. 35; 83 P.3d 35; 2004 Ariz.

In this case a firefighter filed a complaint in the trial court, seeking declaratory and injunctive relief, alleging that random testing violated his rights under both the Arizona and federal constitutions. The trial court held that random drug testing violated the Arizona constitution. The Court of Appeals, Division One (Arizona) reversed. The firefighter appealed.