Like all first responders, firefighters are often forced to make split-second decisions in high-stakes situations. We have only our training and experience to guide us through these often fast-changing, life-threatening emergencies. The opportunity to make mistakes or “less than perfect” decisions is significant. Still, the public can be less than sympathetic, prompting lawsuits against our members.
Qualified vs. absolute immunity
The law in many states recognizes the challenges of allowing emergency services personnel to make such decisions while facing significant threats from lawsuits. As such, many state statutes bestow a limited grant of immunity upon first responders for decisions that may have been “less than perfect.” Such immunity is often referred to as “qualified immunity.”
The word “qualified” is key here, as it is different from “absolute” immunity. A state that grants “absolute immunity” to responders absolves first responders of any liability, regardless of whether their acts are determined to be simply negligent, grossly negligent, reckless or intentional. The grant of absolute immunity is uncommon but does exist in some states.
An example of an absolute immunity statute can be found in the state of Virginia (Code § 8.01-225), which provides, in part, that (formatting for emphasis):
Any person who …is an emergency medical services provider possessing a valid certificate issued by authority of the State Board of Health who in good faith renders emergency care or assistance, whether in person or by telephone or other means of communication, without compensation, to any injured or ill person, whether at the scene of an accident, fire, or any other place, or while transporting such injured or ill person to, from, or between any hospital, medical facility, medical clinic, doctor’s office, or other similar or related medical facility, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such emergency care, treatment, or assistance, including but in no way limited to acts or omissions which involve violations of State Department of Health regulations or any other state regulations in the rendering of such emergency care or assistance.
By contrast, qualified immunity from lawsuits is given to emergency services personnel so long as they attempted to act carefully or attempted to make the right decision. Qualified immunity is not available for allegations that the decisions were “reckless” or “intentionally” harmful.
Standards of care
In order to fully understand the protections of any qualified immunity statute, one must understand the “standards of care” that plaintiffs must prove were violated. For example, to establish that a firefighter or EMT was negligent, a plaintiff must establish that the firefighter/EMT failed to act as a reasonable firefighter/EMT. This is a very low standard and offers little to no protection in court. The failure of a state to adopt an absolute or qualified immunity statute results in the firefighter/EMT having to establish that any other firefighter/EMT would have conducted themselves in the same manner.
Some qualified immunity statutes require that the plaintiff establish that the firefighter/EMT was grossly negligent and not simply negligent. Under this standard, the plaintiff must establish that the firefighter/EMT failed to even attempt to be careful, and not simply that they were not careful. This is certainly a more difficult task for the plaintiff to establish in court.
A much more difficult standard of liability to establish is titled “recklessness” or “wanton.” Under these standards, a plaintiff must establish that the firefighter/EMT’s acts or omissions were so likely to cause injury that they were almost intentional.
Finally, the “intentional” standard of care requires a plaintiff to prove that the firefighter/EMT actually intended the harm that resulted. Assault is an example of an intentional act where harm was the desired outcome.
State-by-state variations
Qualified immunity protection varies from state to state.
Consider Maryland’s statute which grants only a qualified immunity:
(a) Immunity from Civil Liability. — Notwithstanding any other provision of law, except for any willful or grossly negligent act, a fire company or rescue company, and the personnel of a fire company or rescue company, are immune from civil liability for any act or omission in the course of performing their duties.
Here’s a real-world scenario: A paramedic incorrectly places a tube into a cardiac arrest victim. The paramedic fails to confirm placement of the tube but does observe the chest rising and falling. Certainly, the paramedic did not comply with proper protocols and could be deemed negligent. The paramedic could be found to be negligent if they failed to adhere to the standard of care for paramedics in the same position. However, if the paramedic practices in a state that granted them qualified immunity, they may not lose the lawsuit since they at least attempted to be careful in confirming placement of the tube.
On the fireground, consider a fire chief who disregards the fire department’s written best practices (not mandatory policies) and directs the first-arriving engine to proceed to conduct a search instead of extinguishing the fire. A plaintiff could argue that the department’s standard of care for their engine was violated and that the injury to the victim would have been prevented had the fire chief directed the extinguishment of the fire sooner.
Under a qualified immunity statute, the question may revolve around whether the fire chief’s decision was “reckless” or was simply “negligent.” The “wanton” or “reckless” standard forces the plaintiff to establish that the decision of the fire chief was so likely to cause injury that the resulting harm was almost intentional. In this instance, it is likely that the decision of the fire chief would not rise to the “wanton” or “reckless” standard and that the decision of the fire chief, even if negligent, is protected by the qualified immunity statute.
Additionally, in many states, discretionary decisions of first responders may not be questioned in court. Conversely, the violation of a law or non-discretionary policy can be raised in court and may lead to liability. In the above example, if the fire chief violated a non-discretionary policy, the fire department or its municipality may very well be liable for such non-discretionary decision.
Qualified immunity vs. good Samaritan statutes
Qualified immunity is similar but not identical to good Samaritan statutes. These statutes often protect persons who render medical care without expectation of compensation/remuneration. Some of the good Samaritan statutes provide absolute immunity while others provide only a qualified immunity.
For example, in New York State, Public Health Law Section 3013 provides in part that (formatting for emphasis):
A voluntary ambulance service … and any member thereof who is … an emergency medical technician … and who voluntarily and without the expectation of monetary compensation renders medical assistance in an emergency to a person who is unconscious, ill or injured shall not be liable for damages for injuries alleged to have been sustained by such person or for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such medical assistance in an emergency unless it is established that such injuries were or such death was caused by gross negligence on the part of such … emergency medical technician ....
Liability of employers for acts of their employees and volunteers
The liability of employers for their employees is often referred to as “vicarious liability.” If the employee is liable, the employer is obligated to pay for such liability. The plaintiff is typically obligated to establish in court that the employee was liable. However, if the employee is protected by a qualified immunity statute, the employer also may be protected.
Again, statutes vary on who is protected and how much protection is offered. Some state statutes protect the employee or actor but allow the lawsuit to proceed against the agency itself.
Employer’s negligence
It is not uncommon for states to permit lawsuits that allege that the private employer or public agency was negligent in hiring, training or supervising the employee, even though the employer is protected from the actual acts or omissions of the employee. In these cases, the plaintiff recognizes that it cannot succeed against the employee directly, but is more likely to win against the employer for negligently hiring, training or supervising the employee. Qualified immunity statutes generally protect the acts and omissions of the EMT for providing care or the firefighter for making decisions, but less frequently protect the agency from performing proper hiring screening, training or supervision of employees.
“Scope of duty” defenses
Not all acts of the employee will result in liability of the employer. In some situations, where an employee is “acting outside of the scope of their duty” as an employee, the employer is not liable for the acts of the employee. For example, in New York State, a park ranger was accused of raping a woman while the park ranger was on duty. The courts have held that the actions of the park ranger were not in the scope of his duty and that the park ranger’s employer was not liable for the employee’s violent and intentional acts.
Know your protection
Every municipal and private entity that renders emergency services should become familiar with their specific state statutes to determine the scope of their potential liability while rendering services. Most important is that attorneys should become very familiar with the protections offered, if any, to their first responder clients so that they can successfully defend them against allegations that may not overcome the protections offered by state statute.
Listen next: Pinsky details qualified immunity on the Code 3 Podcast, hosted by Scott Orr.
