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.
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.
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