By John Muldown, JD
Consultant, Citygate Associates,
LLC

June 2010

We live in a litigious society. The strong tie between liability and budgetary issues has become even more important with the current financial situation in which federal, state and local governments find themselves.

Due to the inherent danger and rapid decision making associated with operational first responder work, liability for these front-line workers has become critical. The focus is now on both reducing liability and assisting in mitigation measures, with the goal of reducing a jurisdiction’s costs in both litigation and payments to plaintiffs.

History

More than ever before, jurisdictions are being financially attacked by plaintiffs and attorneys as a result of actions and verbal communication by the first responders in the police, fire and emergency medical services (EMS). There has been little training at the operational level where the majority of liability cases are initiated.

Today’s tighter budgets resulting from the national economic situation have brought this even more into focus. Agencies can reduce plaintiff payouts and the high cost of litigation by addressing this issue.

Advantages to
Agencies/Jurisdictions

Most visible to the public are the settlements or court decisions and financial awards. However, in the early stages, significant costs are incurred. These include preliminary investigations, witness interviews, interrogatories, depositions and other labor-intensive costs for investigators and attorneys. Then there is the time spent briefing the decision makers (agency heads, risk managers, city counsel, etc.).

There are additional costs involved in negotiating with the plaintiff’s representatives, working out a potential settlement, and obtaining court input and approval. Significant financial drains on the jurisdiction result from man-hours spent on a case, even if it has no merit.

If operational first responders are given a basic explanation and understanding—through this four-hour training course in the alternative theories of liability, how they function, and how to apply this training in their day-to-day operations—there are several significant advantages to the agency.

The first and most obvious advantage to the jurisdiction is the benefit that comes from first responders understanding how to avoid liability in their actions without compromising safety of agency personnel. Through training and policy changes, first responders can learn to reduce the chances of developing agency liability, further reducing financial exposure.

“More than ever before, jurisdictions are being financially attacked by plaintiffs and attorneys as a result of actions and verbal communication by first responders…”

Second, often the actions taken by the employee(s) do not generate liability in and of themselves, but what is later said verbally and in written reports can create liability where none previously existed. First responders can learn to identify situations that can develop liability, allowing their managers to more efficiently address and rapidly mitigate liability issues when they arise.

Third, by providing liability training to their employees and including the information in their policies and procedures, an agency/jurisdiction can help avoid becoming the “deep pocket” payee. This is done by inhibiting an employee’s claim of “course and scope” protection if they act or verbalize in a manner inconsistent with the policy, procedure or training.

Today, in a situation that may involve agency liability, cases are initiated by the “ambulance chasing” attorneys. These attorneys can initiate a suit knowing the defendant agency has a “deep pocket.”

Frequently, these settlements can cost thousands of dollars, because risk managers are aware of the significant costs involved in investigating and defending these claims.

“Through training and policy changes, first responders can learn to reduce the chances of developing agency liability.”

Finally, by providing this training and having input from the agency counsel on the training and policy formulation, there should be a significant reduction in the costs associated with litigation, settlement and payments.

Advantages to Operational Level Staff

In addition to helping agencies, operational first responder training also provides significant advantages to operational level staff.

Staff can avoid and reduce personal liability exposure without compromising their own and others’ physical safety, further reducing agency liability exposure. This can be done simply by staff receiving this training and understanding the basic theories of liability.

Staff can develop better work habits consistent with increased safety and reduced liability exposure. Understanding that the agency may no longer be a “deep pocket” will give the employees a personal stake in the liability issue. This can only serve to get them to reduce the agency’s and their own liability exposure.

Second, staff will also better understand what to say, and not to say, to avoid creating liability where none previously existed. There are many theories of liability not commonly recognized, including the theory of warranty, detrimental reliance, negligent referral and others.

Finally, by having this understanding, staff will be able to recognize situations that may involve liability, and communicate this to superiors and/or counsel thereby rapidly mitigating the situation through a compromise and release, or something similar. This has proven to significantly reduce the ultimate cost to the agency by tens of thousands of dollars.

Summary

It should now be clear that with a small investment in this four-hour liability training course for operational level staff, an agency/jurisdiction can significantly reduce its liability exposure, assist in rapid mitigation measures, significantly reduce the costs associated with pre-litigation investigation, settlements and plaintiff payments and help inhibit becoming the “deep pocket.”

One adverse liability situation can greatly exceed the costs associated with basic training in liability, a great argument for investing in a half-day training before bearing the costs of one adverse situation.  This training is available brought to your site by Citygate and tailored to your specific agency. 

Dr. John Muldown, JD, F.ACFEI, D.ABFE, D.ABLEE, CHS-V, CMI-V, has a Doctorate in Law, 28 years of police experience, and specializes in liability training. Please contact John by phone at (530) 990-8372 or by email at
[email protected]

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