Sorry, you need to enable JavaScript to visit this website.

Liability and Emergency Driving, Are You Covered?

by Dawn Kennedy

EMA Emergency Management, EMS Emergency Medical Services, FD Fire Departments, Law Enforcement, badges article logo label

You get the 911 call; you are responding code 3, following the protocols and statutes, lights, sirens…. And you are involved in an accident. According to the U.S. Department of Transportation in 2012 vehicle accidents involving ambulances resulted in 34 fatalities, fire trucks resulted in 14 fatalities and police cars in 83. This is a total of 131 deaths in 2012 where an emergency vehicle was involved. When we take a closer look at the data of these accidents, 96 fatalities were passengers in the non-emergency vehicle.

Going beyond the immediate physical injury, and the long term mental and emotional anguish that accompanies involvement in any accident, you and your agency could be hauled into court in a wrongful death suit. And you may be personally liable. Make NO MISTAKE. Lawsuits against emergency responders and agencies are not uncommon. While I was doing some research for this article, I put the search term "personal liability fatal accidents ambulances" and BOOM the first few pages were links to lawyers seeking to represent plaintiffs who were injured by emergency services personnel.

This article is not intended to imply that suing emergency responders is frivolous. The intent for this piece is for everyone to take a breath and be mindful of what is at stake. Take a moment this month and research your state regulations, review the driver training plan for rookies and new hires, impress upon all personnel that there is an affirmative duty of care as an Emergency Vehicle Operator.

What is "Sovereign Immunity?"

The doctrine of sovereign immunity in which a municipality relies on to try and avoid lawsuits, is defined in the online Legal Dictionary as "Sovereign immunity is a judicial doctrine that prevents the government or its political subdivisions, departments, and agencies from being sued without its consent." (I will not bore you with the other stuff, but if you are interested in more info, please check out the page.)

"Until 1946 civil servants could be individually liable for torts, but they were protected by sovereign immunity from liability for tortious acts committed while carrying out their official duties. But the courts were not always consistent in making that distinction."

And since 1946, many entities, including the Federal Government can be held liable when there is negligence or other conduct that injures persons or property. In other words, a lawsuit can be filed against the municipality or agency, and in many cases, against the individuals involved in the accident. It's fuzzy and very jurisdiction specific. Usually it depends on whether someone was operating, "within the scope of duty or employment", so only if the accident occurs during service to the community. If officers, personnel, and/or representatives are found at fault, the person, the agency, and the municipality may all have to pay the plaintiff.

Are YOU protected from a personal lawsuit?

A policy Statement from the New York State Department of Health, effective November 2000, requires…..

"Emergency operations in EMS are always an affirmative decision that is made at the time of each response. Today, EMD, industry data, EMS educational materials, legal case precedents, and other industry practices set a standard of care for emergency vehicle operation which is binding on all EMS providers. Drivers of emergency vehicles are reminded that they solely bear the responsibility for driving safely and with due regard. There is no immunity from liability provided in NYS law for driving." (Emphasis mine)

You are NOT covered in New York. Take a minute and research your state statutes, regulations and policies. Just go and do it.

"Due Regard? Huh?"

It is common sense that Emergency Vehicle Driving is not an intuitive, "get behind the wheel and go" sort of skill. The vehicles have certain features (top heavy, multi-axel, etc.) that require practice to become proficient in maneuvering safely. Today's cars are soundproof and let's face it, drivers are often distracted, so the fact that you are responding with lights and sirens may be missed by other drivers on the road. But you knew that. What exactly is "due care" or "due regard?"

One way to think of due regard is in terms of mindfulness of safety and corresponding conduct. The Emergency Vehicle Operator's Course (EVOC) Instructor's Guide, "Due Regard for safety" will be judged as, "a reasonably careful person, performing similar duties and under similar circumstances, would act in the same manner" (1) This standard may seem fuzzy, so it's probably better to describe in terms of acceptable conduct. A few descriptions from the field include Steve Pegram, Fire Rescue1 Columnist, with a great list of safe conduct actions, and Jerry Smith from The as published in EMS Village.

The 1996 manual for the United States Fire Administration's Emergency Vehicle Driver's Course is available online. A glance through the almost twenty year old manual, including the tough questions it asks of trainees is still timely and relevant. (How long would a $50,000 Death Benefit last your family?)

What this Means for Your Agency

Bottom line, responding to an emergency may put you at risk for a lawsuit. Ensure your agency has a training program, and review the course periodically, even for your most seasoned operators. IF there is any change in risk for your department (depending on your insurer, your agency may be REQUIRED to report any citations issued to covered personnel while off duty in their own vehicles) ensure you contact your insurer, and have a strategy to mitigate any changes.

On a positive note, an article by Ed Ballum, staff writer for the EMS World news team, wrote in EMS World February 9, 2011 the Ambulance Crash Roundup, noting the excellent point about the number of accidents involving ambulances that year, compared to the number of ambulances on the road- responding and transporting. Furthermore, accidents can be attributed to other factors besides driver error.

On another note, Sometimes, the responders are not personally liable, but a lawsuit can go forward against the municipality. I found an example in Georgia from a 2007 accident.

And my final note- law suits may be filed by the patient who is transported when an accident occurs, and just a month ago (before this was written) attorney and firefighter Curt Varone reported this gem in the Fire Law blog:

"A patient in the back of a fire department ambulance that collided with another vehicle during transport killing the other driver, has filed suit against the department, two firefighter-paramedics, and the deceased's estate.
Crambit filed suit earlier this month against the SFFD and the two firefighter- paramedics claiming they are in part to blame for injuries, including causing him ""to fly … within the ambulance, colliding with objects." He is also suing Morgan's estate, and seeks a total of $305,000 from all parties."

The deceased's estate is not suing the medics, the patient being transported at the time of the fatal crash is suing the medics….and the agency… and the deceased's estate. It will be an interesting case to watch.

For additional statistical data on emergency vehicle accidents, including prior years, check here.

1.   Department of Transportation, Emergency Vehicle Operator Course, Instructor Guide, 1995, P. 47

Click here to go back to the list of issues.