NIMS Directives and Liability

[helicopper 1,050]

For possibly the first time, a high-level court in New York State held that the failure to follow a mandatory, nondiscretionary NIMS directive served as a basis for liability against a fire department.1 Although the holding is law only in New York State, many states follow similar legal principles. The holding, therefore, should concern first responders in all states.

New York State’s second highest court ruled that the failure to follow NIMS may serve as a basis for liability, as it “mandates a reasonably defined and precedentially developed standard of care, and does not require the fact’s trier to ‘second-guess [a firefighter’s] split-second weighing of choices.’ ”

Pretrial discovery revealed allegations that the [County Fire Coordinator] CFC did not report to either the IC or the operations officer after his on-scene arrival. Instead, testimony revealed that the CFC decided to take a “quick look” at the fire. Testimony further alleged that the CFC told the firefighters about to enter the structure, “We’re going to have to get a line in here.” It is unclear exactly to what that statement referred. There is disputed testimony about whether the CFC was wearing a white (command) or black fire helmet. Thus, the question of whether the CFC assumed a command role outside of the incident’s command structure arose. This fact was vital to the court’s inquiry.

Immediately thereafter, two firefighters from Manlius Truck 2 entered the house’s first-floor mud room, while a third firefighter fed the attack line to them from the garage. As the third firefighter tried entering the mud room, he saw that the first floor had collapsed and his fellow crew members had fallen into the involved basement. One of the fallen firefighters was able to reach up and grasp the third firefighter’s hands.

The CFC, the Manlius deputy chief, and the third firefighter made rescue efforts. Unfortunately, the heavy involvement of the basement, first floor, and garage areas forced the rescuers’ evacuation and the rescue effort’s termination. Two firefighters died.

If you haven't already seen this is, it is a must read. For those who think they are compliant, perhaps it is time to make sure. For those who've been ignoring it, WAKE UP!

For all of us it highlights the importance of having only ONE person (hopefully the most qualified person) in charge of the incident/event. For jobs where there is or can be confusion (Hudson River jobs come to mind) there needs to be a standard adopted for how those incidents are managed so we don't become a follow-up article. There can only be one person in charge and this needs to be clearly identified and clearly understood by all involved.

A recent incident that highlights this point. Two helicopters were operating in two geographic areas on the same incident in accordance with a directive from "Command X". "Command Y" directed one of the helicopters to conduct operations in the same area as the other helicopter. Now, we all know that two aircraft in the same place at the same time is not a good plan but this was apparently not part of the thought process of the second "IC". The air crews were coordinating their movements so nothing untoward happened but what if...

The same examples can be found in emergency operations on a regular basis when we fail to establish a single unified command post at an incident and operations are being conducted by different elements with no regard for each other.

Perhaps now we'll all stop the petty nonsense that prevents ICS from developing as intended (and as it works in many places around the nation) and start doing it right.

The article can be accessed here:

http://www.fireengineering.com/display_art...s-and-Liability

The article is quoted here with the permission of the author.

[SteveOFD 176]

Definately an eye-opening case, and I hope that Agencies take this seriously and get their act together, if they haven't already!

[FirNaTine 370]

Not for nothing but members of a Dept. should never take an Order from anyone other then a member of their own Dept., especially a CFC, unless they have all been assigned a specific task under this individual's Command, as per the IC. This is what hapeens when you have everybody and their brother showing up to a Job to play in the sandbox! I'm surprised this kind of $hit doesn't happen more often in Westchester. Every Job seems to become a Big Buff Convention. Enough already! Stay Home if not needed or at least behind the yellow tape. I'll never forget seing a Chief of a neighboring Dept. on a handline at one of our Jobs. Come on already! Don't like where you work cause it's too slow, put in for a transfer! It's time for people to start recognizing their boundaries and really try not to cross them.

[efdcapt115 1,511]

Getting back to the Manlius fire, I remember this one specifically. In Eastchester we had just written and won our first AFG award for RIT equipment and training. When the NIOSH report was released it became quite apparent and rather frustrating that had any RIT tactics been employed at the Manlius fire, the two brothers might have had a chance at life. A hoseline directed into the basement when the truss floor collapsed in the mud-room, a ground or attic ladder being dropped into the basement, or a coordinated effort at rescue, resupply of air; any of these things could have made a difference, and yet none of this occured.

We developed a small lecture series based on the NIOSH report, as we began the process of bringing in some really good RIT equipment to the department, and started the long painful process of trying to develop a RIT plan for our understaffed dept.

This fire dramatically illustrated the absolute need and importance of the RIT, and occured during one of those watershed type moments for EFD.

God rest the brothers, and hopefully the other members of MFD have been able to get through this tragedy.

With regard to the court ruling and it's effect on the paperwork side of FDs, I would say get out the paper shredders and start from scratch if that's how it has to be. It's ironic how we fought for SOP/SOGs only to be now told you need to make all the paperwork politcally correct because of lawyers as usual.

Edit: Regarding the RIT AFG award I'd like to just extend my personal thanks to Firefighter Joe Pinto, YFD (formerly EFD) for his invaluable help in developing an outstanding award application. The brothers in EFD owe Joey a debt of grattitude for all the effort he put in to helping equip the brothers with the tools they needed to effectively implement RIT.

Edited August 5, 2009 by efdcapt115

[x134 46]

I went to probie school with a guy from Manlius, ff Rob Finger. He knew both Brothers that died that day. To hear him tell the story was very chilling.

Edited August 5, 2009 by x134

[crcocr1 8]

The decision mentioned within the article was rendered in the Third Judicial Department (Central New York and Albany). It therefore is not binding on the First (Bronx, Manhattan), Second (Long Island, Rest of New York City, Westchester, Putnam and Dutchess), and Fourth (Rochester and Buffalo area) Departments.

With that in mind, I'm curious if the Manilus (sp?) Fire Department is appealing the ruling to the Court of Appeals, whose decision is binding on the whole state.

In short form, I'd heed the articles comments but don't shred your SOPs yet!

[SteveOFD 176]

While researching this decision, I found a link to the Courts' decision. It can be found here.

crcocr1, according to this link the case was decided in the Supreme Court, Appealate Division, Fourth Department.

[crcocr1 8]

My apologies--Piinsky lives in Third Department, decision rendered in Fourth. My statement however remains the same. Only binding in Rochester / Buffalo area then.

The other interesting observation is that the decision was based on the defendant moving for summary judgment. The fire department still can win at trial, fact depending, if they decide not to settle the case. Definitely a interesting posting...

Edited August 6, 2009 by crcocr1

[moggie6 54]

This is a very sad sad story.

[Bnechis 3,961]

With regard to the court ruling and it's effect on the paperwork side of FDs, I would say get out the paper shredders and start from scratch if that's how it has to be. It's ironic how we fought for SOP/SOGs only to be now told you need to make all the paperwork politcally correct because of lawyers as usual.

Two weeks ago (before this thread) we met with our city corporation council to discuse this article and this issue and should we change from SOP's to SOG's or "best practices". She advised us that after extensive research she found the appelate courts have specifically written that in police dept cases (she said she found no relative FD cases) it did not matter what you called it. She said the content was what matters and the courts will ignor what the title is.

For example, if your SOP says when the vehicle is in park it shall have the wheels chocked, if you do not do it in the fire station then you will lose in court. If it says you should chock them when parked on public roads, your ok.y

In general make sure your "shalls" and "must" are enforced. Unless its required by law (OSHA, DMV, etc.) consider "should" instead. If it is required by law then it must be "shall".

Also a good idea to add an escape clause, such as: "there may be some situations that are beyond the scope of this SOP, the IC shall use his best judjment to meet the intent if not the actual details of this SOP".

[xchief2x 79]

Personally I don't see how it matters where this decision came from, it's time for everyone to wake up and be compliant with NIMS and more importantly for Chief officers to establish the command post and accountability. All of those tags aren't worth a dam if they are hanging off of your coat while you are operating at a scene. As for another post regarding this about the major buffing going on you are 150% correct, if you aren't called you should stay back in your community in the event you are called or you get an incident at home. As for a CFC giving orders I for one (I am A deputy Coordinator) do not believe that is my job, I am out there to run the call, my job (when allowed to do it) is to get the IC the resources they need, personally I may suggest soemthing to the IC that they may need or want as their attention is focused on the incident. I will only request resources the IC asks me to get for them.

Edited August 6, 2009 by xchief2x

[ny10570 745]

In the end it doesn't matter which court this is decided in. It becomes a precedent that can be cited in any court in the country and will eventually spread. Remember when everyone use to say NFPA was just a suggestion until people went to jail for not following it. NIMS is the standard and people might as well accept it before they too find themselves appearing before a judge.

[helicopper 1,050]

Does it bother anyone else that there is so much being made of what color helmet the Fire Coordinator was wearing? If I put on a white helmet and wander about a fire scene giving out orders, will they be followed simply because of the color of my helmet? Do we really elevate a colored piece of plastic that much?

The comments about following NIMS and making sure our SOP's (or whatever we call them) are up to date are great but I think we also have to start getting away from the regal deference to a white helmet (or its wearer) and focus on the management process. The old, tired arguments about who's in charge and being in "command" need to be buried for good and true management needs to be the way we approach incidents in the future.

Manage them or they'll manage you!

[efdcapt115 1,511]

Getting back to the Manlius fire, I remember this one specifically. In Eastchester we had just written and won our first AFG award for RIT equipment and training. When the NIOSH report was released it became quite apparent and rather frustrating that had any RIT tactics been employed at the Manlius fire, the two brothers might have had a chance at life. A hoseline directed into the basement when the truss floor collapsed in the mud-room, a ground or attic ladder being dropped into the basement, or a coordinated effort at rescue, resupply of air; any of these things could have made a difference, and yet none of this occured.

We developed a small lecture series based on the NIOSH report, as we began the process of bringing in some really good RIT equipment to the department, and started the long painful process of trying to develop a RIT plan for our understaffed dept.

This fire dramatically illustrated the absolute need and importance of the RIT, and occured during one of those watershed type moments for EFD.

God rest the brothers, and hopefully the other members of MFD have been able to get through this tragedy.

A post on the thread about crawling that referenced the Manlius fire got me to thinking about this post. I might have been somewhat robotic in trying to make my point about what the Manlius fire taught us with regard to RIT; I was mostly referencing my recollection of the NIOSH report. I should have added that my statement in no way was meant to cast doubt about the heroic actions of ALL firefighters involved at this fire. I am quite sure there was much anguish, horror and pain at what occured; and I'm also sure that every firefighter involved at this incident did everything and more humanly possible to effect a different outcome.

A couple of quick points about the fire (to the best of my recollection):

There was a 55 minute delay in notification, and therefore uncontrolled burning in the basement of this truss constructed P/D.

The added weight of ceramic tile, appliances (washer/dryer) and the fact that the fire was raging for almost an hour, combined with the weight of two fully geared firefighters added to the load on a truss ready to just drop out. Whatever position they might have been in upon entry might not have made much of a difference unfortunately.

The main fire attack was directed at the rear of the structure into the basement, while the entry that proved fatal was above this, as the P/D was 2 1/2 stories from exposure 1, and 3 1/2 stories at exposure 3. I believe the collapse occured on entry into exposure 4.

Understaffing was an issue. The Manlius brothers had just performed a truck operation; vertical ventilation, when they were redirected into an engine company operation of advancing a hoseline. I imagine they were already quite physically taxed before they even picked up that attack line.

On that note I offer my respect to all firefighters involved in this tragedy.

[efdcapt115 1,511]

Does it bother anyone else that there is so much being made of what color helmet the Fire Coordinator was wearing? If I put on a white helmet and wander about a fire scene giving out orders, will they be followed simply because of the color of my helmet? Do we really elevate a colored piece of plastic that much?

Why not give the Fire Coordinators their own color, or even a black helmet with a different colored shield than the usual red for truckies, white for officers, etc.

Yes, sometimes in the first few chaotic moments of a job (particularly one that is going badly), with multipal agencies on scene and if the question of who REALLY IS in charge hanging out there (not refering to the Manlius fire here at all), I could see how firefighters might follow the lead of a "white helmet."

We've all seen the look in some of the brothers eyes when they are staring into the abyss, the unknown, of a structure fire. Particularly the younger, less experienced brothers; they ARE looking for an officer to provide direction; and more importantly to LEAD.

In this context you can see how it is possible that the simple color of a guys helmet might influence members to follow a directive on the fireground.

So I guess the lesson would be; paying attention to who is telling you what; it just might be Chris walking around conducting an experiment :-)

[Guest alsfirefighter]

A couple of things I'd like to point out as I've been a huge proponent of IMS for years since I came back in this area in the late 90's and have heard just about every reason as to why its not used or its "faults."

Since the requirement of NIMS I-100 with federal grants has gotten a form of IMS training out there I've seen more and more departments attempting to implement IMS into their operations. Its pretty great to see that effort. However we still in this area have a ways to go. For some I have to let you know that just simply using the terminology doesn't mean you are utilizing an incident management system.

The other issue I see is that every other word mentioned in regard to incident command is "NIMS" "NIMS" "NIMS." NIMS is great but it stands for NATIONAL incident management system and was designed to get the principles of IMS out there and for lower government forms and agencies to understand how federal agencies and resources are going to be operating. NIMS has nothing truly to do in many senses of how you need to operate your IMS for your operations. Text book wise IMS can seem daunting and ridiculous. When implemented correctly and when done with many of the traditional ways many agencies are still too entrenched in which is inefficient, doesn't emphasize or make accountability easier and reduce span of control, done away with. It makes things so much easier.

I was fortunate to be brought directly into IMS, which in the late 90's was just known as ICS from my first day in the FD as down south they have been using it for years. IMS isn't just for big incidents, ie. fires or MVA's with multiple cars and/or patients. Utilize it on all your alarms and it will become second nature. I learned as a former county I operated in used it on every call with the exception of single patient EMS calls. MVA's, AFA's, wires down, structure fires, car fires... you name it someone established command and worked the system as needed to maintain span of control and accountability. It works if you work it.

I have read that report several times and have talked to a few guys from the area that I have taught with and its just a flat out shame that happened. I know they are resting peacefully and I know hope that many will learn from that incident so they shall smile knowing that their deaths are not in vain.