While not all National Fire Protection Association (NFPA) standards are law in New York State, they are not simple recommendations either.
A Special Organization
How wonderful it is to be a firefighter! In what other industry would the most respected minds donate their time for over a century distilling consensus standards to keep firefighters and citizens safe? That’s the NFPA for you. Most notably, their process of “consensus decision-making, openness… and fairness “bring[s] to the table the point of view of… a balance of affected interests”, not just firefighters. They sit down, look at every side of an issue, and come up with the best solution for all parties involved.
Professional Standard of Care
NFPA Standards are similar to the accepted standards of the legal and medical professions. While there may not be a law specifically requiring a surgeon to take proper precautions to ensure operating on the correct limb, or a prosecutor to follow up on leads pointing to a different suspect, there is obvious liability when violating these standards:
Fire Department Case Studies
Let’s bring it closer to home:
- $200,000 settlement after Line of Duty Death (LODD); NIOSH report sited NFPA Standards in 7 of 11 recommendations
- New York Fire Chief Criminally Convicted for LODD; NIOSH fatality report referenced NFPA 12 times
What the Experts Have to Say
“A common excuse for failure to comply is that that NFPA standards are voluntary and up to the authority having jurisdiction. However, [well-known products liability attorney Jim] Juneau is quick to point out that in a court of law, NFPA standards rule.” (firefighternation.com)
Robert Barraclough, a member of the NFPA 1901 mobile fire apparatus committee… said “The first thing a good lawyer, any lawyer, even a bad lawyer, will do is pick up [a copy of] the NFPA standards,” to suggest liability, he said. (firefighterclosecalls.com)
Liability Statistics (llrmi.com)
- In 82% of the fire service related civil cases, a fire department and/or the municipality is named as a defendant
- 85% of the suits filed by firefighters are against the fire department and/or municipality
- The most likely type of incident to give rise to a lawsuit: A structure fire (11% of all civil suits)
- Over 60% of the lawsuits arising out of structure fires are filed by firefighters against either the fire department or the building owner(or in many cases both)
But Isn’t Staffing Different?
Here’s what the experts have to say specifically about NFPA 1710, which lays out the minimum standards for staffing:
“Donna Aversa, an attorney that represents a number of fire districts… felt that there could be the likelihood of damages awarded if it could be shown that the fire district could have met NFPA 1710 response times but chose not to.” (usfa.fema.gov)
According to Curt Varone, an attorney with 30 years of practice who is in the unusual position of also being a 40 year fire service veteran, there are two ways that the standard “can potentially become a legal problem for a fire department” (firelawblog.com):
- OSHA’s “general duty requirement”… requires employers to be aware of industry-wide safety standards… If a given industry has… adopted safety standards…, then violating those standards can be the basis for a general duty clause violation.”
- Negligence – “NFPA standards such as NFPA 1710 can be used as evidence of the applicable standard of care in a negligence suit. Of course, the reasonableness of the staffing and response times required by NFPA 1710 could be rebutted by expert witnesses, but just as easily they can be supported by expert witnesses as well.
Besides being the minimum “right thing to do”, NFPA standards have liability implications whether or not they have been incorporated into the law. Released in 2001, the staffing standard for professional departments (NFPA 1710) is relatively new. Let’s get ahead of the curve and protect our city from liability, instead of waiting to be a national test case.