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Monday, November 12, 2012

By the Authority Vested in Me…



Has your fire department ever found it necessary to “commandeer” equipment in order to mitigate an incident?

Does your state laws allow in specific circumstances for a representative of the fire department, at the direction and command of a fire department’s ranking officer to take public control of private equipment with legal immunity should that action cause negative reverberations?

Is your fire department willing to go beyond that threshold where it becomes more important to prove one’s authority at the risk of losing the publics’ support? Are these adrenaline fueled brain farts by well-intentioned public servants causing the fire service and in particular the volunteer sector unnecessary negative publicity?

Let me say that I am familiar with this fire department and they are not cowboys from Goofy Ridge. Their demographics dictate that they be well disciplined and well trained.

The article’s author, Barb Ickes, has worked for the Quad-City Times as a columnist and Illinois reporter since 1998. She earned a BA from Northern Illinois University and a Master's Degree from the former Sangamon State University, now the University of Illinois at Springfield.

The link is to the story that is central to my lead-in questions: Backhoe was a no-no.
 
 As you can see from the article, the fire chief believed that he had the authority to use the 
backhoe to extinguish the fire. Here is what I could find in the State of Iowa Code: 
 
102.2  AUTHORITY AT FIRES.
         A fire chief or other authorized officer of a fire department, in
      charge of a fire scene which involves the protection of life or
      property, may direct an operation as necessary to extinguish or
      control a fire, perform a rescue operation, investigate the existence
      of a suspected or reported fire, gas leak, or other hazardous
      condition, or take any other action as deemed necessary in the
      reasonable performance of the department's duties.  In exercising
      this power, a fire chief may prohibit an individual, vehicle, or
      vessel from approaching a fire scene and may remove from the scene
      any object, vehicle, vessel, or individual that may impede or
      interfere with the operations of the fire department. 

It would appear that there is wide latitude with regards to the fire chief’s duties, but I think that there should be an emphasis on the usage of the term “reasonable performance”.
The defense by the municipality’s defense attorney is found in Iowa Code Section 670.4, which states among other things:

         The liability imposed by section 670.2 shall have no application
      to any claim enumerated in this section.  As to any such claim, a
      municipality shall be liable only to the extent liability may be
      imposed by the express statute dealing with such claims and, in the
      absence of such express statute, the municipality shall be immune
      from liability.
         1.  Any claim by an employee of the municipality which is covered
      by the Iowa workers' compensation law.
         2.  Any claim in connection with the assessment or collection of
      taxes.
         3.  Any claim based upon an act or omission of an officer or
      employee of the municipality, exercising due care, in the execution
      of a statute, ordinance, or regulation whether the statute, ordinance
      or regulation is valid, or based upon the exercise or performance or
      the failure to exercise or perform a discretionary function or duty
      on the part of the municipality or an officer or employee of the
      municipality, whether or not the discretion is abused.
         4.  Any claim against a municipality as to which the municipality
      is immune from liability by the provisions of any other statute or
      where the action based upon such claim has been barred or abated by
      operation of statute or rule of civil procedure.
         5.  Any claim for punitive damages.
       11.  A claim based upon or arising out of an act or omission in
      connection with an emergency response including but not limited to
      acts or omissions in connection with emergency response
      communications services.
         The remedy against the municipality provided by section 670.2
      shall hereafter be exclusive of any other civil action or proceeding
      by reason of the same subject matter against the officer, employee or
      agent whose act or omission gave rise to the claim, or the officer's,
      employee's, or agent's estate.
         This section does not expand any existing cause of action or
      create any new cause of action against a municipality.  

With the invocation of this section in their defense, it is fairly clear that the backhoe’s owner is not entitled to re-imbursement by the village, fire department, chief or the firefighter who run the backhoe and caused the damage.

But, what about the damage to the public image of the fire department? I understand laws that are designed to shield, but let me ask you this: if the fire department has insurance on their vehicles and they damage one in the course of the response; wouldn’t the insurance company pay to get the damage fixed? If the fire department has the right to “commandeer” equipment, thereby using that equipment as if it was their own, then why wouldn’t insurance extend to the damaged equipment?

My point is that; even if the fire department has immunity from liability in this case, they do not have immunity from a public backlash in this case.

Therefore: a mutual agreement between the fire department and the equipment owner needs to be reached.

Otherwise; public support may disappear at a time when a fire department can least afford it.

More to come on this one.

TCSS.

The opinions and views expressed are those of the article’s author, Art Goodrich, who also writes as ChiefReason. They do not reflect the opinions and views of www.fireengineering.com, Fire Engineering Magazine, PennWell Corporation or his dog, Chopper. This article is protected by federal copyright laws and cannot be re-produced in any form.