By Curt Varone
Editor’s Note: This article is part of a series of articles in which Curt Varone will address questions on important fire service legal issues. If you would like to submit a question, please email Shannon Pieper at email@example.com.
Have there ever been any lawsuits filed against a fire department for failing to implement or being noncompliant with NFPA standards? I am specifically concerned with whether (and the extent to which) lawsuits arising out of firefighter line-of-duty death (LODD) or serious injury reference NFPA standards.
Yes. In fact, lawsuits arising out of firefighter LODDs and injuries reference National Fire Protection Association (NFPA) standards on a regular basis. Most competent attorneys today seek to use industry standards as evidence of the applicable standard of care regardless of the type of industry. When it comes to the fire service, NFPA standards are the definitive standards that knowledgeable attorneys will default to.
Determining the extent to which NFPA standards are used in lawsuits, however, would be difficult. Attorneys are not required to reference a particular standard in their initial court filing, known as a complaint. Some attorneys choose to cite standards in minute detail in a complaint, while others simply make general allegations of negligence in the complaint, waiting until later in the process to reveal which NFPA standards they claim were violated. Attorneys have their strategic reasons for choosing either option. I mention this point only to show how difficult it would be to accurately assess how frequently NFPA standards are being raised in LODD and injury lawsuits. One would have to review every court file in its entirety to know for sure.
This is not to suggest that the failure to comply with an NFPA standard per se creates liability for a fire department. An industry-wide standard such as an NFPA standard can be used to establish an important element in a negligence suit: the standard of care. In other words, NFPA standards are evidence of what the reasonably prudent fire department would have done under the circumstances. The jury ultimately decides the appropriate standard of care in a case. Jurors can consider other factors as well, including expert witness testimony, learned treaties (authoritative books), and laws, including OSHA regulations.
However, it should be obvious how important compliance with NFPA standards can be when it comes to liability. For this reason, fire department policies, procedures, training and operations should align with NFPA standards to the greatest extent possible.
Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer’s Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.