By Donna Aversa
Calling it a “tragic accident,” the prosecutor determined a firefighter will not be criminally prosecuted for running over a foam-covered crash victim of Asiana Flight 214 at the San Francisco International Airport.
The prosecutor said the firefighter did not violate any criminal statutes. Soon after, the attorney for the victim’s family announced their intent to pursue a civil action.
This got me thinking. What does the lack of prosecution of this firefighter mean to your department? From my perspective, it’s a reminder that there can be policy and political aspects to prosecution. It’s a reminder that the legal analysis of each tragic accident is intensely fact-specific.
And it’s a reminder of the tangible and intangible costs associated with dealing with the legal fallout.
Unforeseeable, unintentional events surround us. We examine them to determine cause. We examine them to predict, prevent and mitigate. And we examine them to determine liability.
As 2013 comes to a close and with the backdrop of the San Francisco tragedy, it’s time to review some aspects of liability.
First, consider that one action can trigger both criminal and civil liability. Criminal and civil liability requires analysis of different elements, a different burden of proof, and different types of punishment.
Here’s a nutshell review of the criminal liability side. On behalf of the government, a prosecutor has to determine whether the underlying act was a crime — that is, did the suspect’s action violate any criminal statutes of the jurisdiction.
If so, he would have to determine whether or not he could establish the elements of the crime to establish guilt beyond a reasonable doubt. If for no other reason than 20 seasons of “Law and Order,” you know that in a criminal case a defendant is entitled an attorney. A guilty verdict can be punishable by prison time and may include fines.
In addition to the ability of a prosecutor to make a case, there are policy and political reasons why a jurisdiction might, or might not, pursue criminal prosecution. Like you, prosecutors are managing shrinking resources. At times, they have difficult decisions on applying those resources to seek justice, not simply to convict.
In the San Francisco case, the prosecutor reviewed all the relevant reports and concluded the firefighter’s action was not a violation of that jurisdiction’s criminal law. But that’s not the end of the story. There is still the threat of civil litigation, the potential for lawsuits seeking millions dollars of damages.
Here’s a nutshell version of the civil liability side. Anyone with the filing fee (and sometimes even without) can file a civil lawsuit. The plaintiff has to establish the elements of the offense — that is, did the action amount to a wrong against the plaintiff for which the law provides a remedy.
If so, the plaintiff has to establish the elements of his claim by a preponderance of the evidence. This burden of proof is generally described as more likely than not, or more than 50 percent likely, that the offense occurred. There is no right to an attorney in a civil case.
Liability in a civil case most often means money damages against the defendant. In addition to money, there can be all imaginable (and unimaginable) types of motivation for filing a civil lawsuit.
Because of these differences between the criminal and civil structures, most significantly the more stringent burden of proof in a criminal case, an individual can be acquitted of a criminal charge but still liable for a civil claim related to the same action.
Now, let’s take a closer look at the concept of fault for an act or failure to act in the context of negligence. The flashcard version of the elements of negligence is: a duty and a breach of that duty causing damages.
The concept is simple. What would a reasonable and prudent person do under the same or similar circumstances? The application of the concept is anything but simple.
Consider the example of walking along a lakefront path. You see a person drowning 10 yards off shore. You have a duty to render aid. What do you do?
What would a reasonable and prudent person do under the same or similar circumstances? How do you define a reasonable and prudent person under the same or similar circumstances?
First, consider the person. Does it make a difference if you are a lifeguard or if you can’t swim? Second, consider the circumstances. Is the water icy and polluted or warm and shallow? Is it dark or light? Is the location isolated or populated? Is there cell reception?
You can see how analyzing each situation is intensely fact-specific. While the existence of a duty is a legal question for a judge to determine, whether or not a person breached that duty is a question of fact in the hands of a jury. And if there is a breach, the issue of damages is also a question of fact for the jury to decide.
Reasonable and prudent firefighter
Putting this discussion into the context of an on-duty responder, the analysis requires a breakdown of what a reasonable and prudent firefighter would do under the same or similar circumstances.
For this discussion, and for insurance coverage purposes, assume your reasonable and prudent firefighter is trained for the task assigned as part of a response and acting within the course and scope of the job duties. As for the same or similar circumstances, how do you begin to describe the intensely fact-specific chaos of an emergency rescue scene like the one in San Francisco?
Finally, consider the costs of defending a claim for negligence against your department. The tangible costs are relatively easy to identify. These are the costs associated with attorneys, expert witnesses, personnel time to prepare and assist with the defense, backfilling the duties for the personnel preparing and assisting with the defense.
All these costs are before you even get to trial. Even if the department is successful, there is the potential for the other side to appeal. If the department loses, there is payment of damages and the potential for an appeal.
The biggest, most problematic costs are the intangibles. How do you calculate the cost for the drain of energy, the impact on morale and the decline productivity? How do you begin to calculate the emotional toll on a firefighter, department and community when the tragic accident is constantly in front of you?
Some of you have the scars of experience in dealing with these issues. Maybe you’ve had positive (or not so positive) experience with your department’s liability insurance coverage. Or maybe you’ve gone through a settlement process.
Continue the discussion in the comments section.
Disclaimer: Of course, this is written by a lawyer, so you saw this coming. This article is general information for discussion and educational purposes. It is not legal advice.