Ch 5 Management and the Law Flashcards
Chief fire officers are for more likely to be affected by _____ than any other body of case law
Their states case law
For fire chiefs, the most important ordinance or charter provision is that which establishes ______
The fire department and describes its mission
- also help define “scope of work”
Tort law falls into how many classes and what are they?
2
- Intentional tort (slander, libel,
defamation) - Negligence (most common)
To prove negligence, and injured person, must be able to demonstrate the following: (4 - DDCI)
- Duty
- Duty breached
- Cause of injury
- Injury
A judge is a trier of _____, whereas a jury is a trier of ____
- Law
- Facts
If one person (or a specific group of people) suffered harm, those harmed could use ____ law to pursue repair of the harm
Civil law
A harm that the community regarded as a threat to itself would go through application of ____ law
Criminal law
____ describes standards of conduct or behaviors that are required (payment of income tax) and the consequences of violating those standards.
Statutory Law
This law:
- is created by the courts as they resolve disputes
- a description of the dispute, issue surrounding it, and rationale for resolution of dispute in judge’s decision (opinion)
- judge’s decision is binding (precedent)
Common Law
The Supreme Court stated definitively that employers were legally responsible for workplace sexual-harassment, but they could limit or eliminate that liability through: (3)
1) workplace training
2) development of effective harassment claim–response systems
3) prompt and appropriate response to harassment complaints
Title VII’s filing limits give employees ____ from the time of the discriminatory pay decision to file a complaint
Up to 180 days
The Age Discrimination in Employment Act (ADEA) numbers
- 40 years of age or older
- covers employers of 20 or more persons
Defined work period in the fire service ranges from ____
7- 28 days
- Supreme Court ruled in favor of the investigators who left the fire scene shortly after the fire was extinguished.
- Restricted unlimited access to fire scene that investigators at once enjoyed
1978 Michigan v. Tyler
- Recognition to investigations that occur while firefighters are still involved in fire-control activities
- Warrantless search six hours after Firefighters had left seen violated the fourth amendment
1984 Michigan v. Clifford
(no mention of consent)
This law is based on a combination of case law and statutory law
State civil law
(Case + Statutory)
This law is based largely on statutory law
State criminal law
(Statutory ONLY)
State law approaches fire inspections in 1 of 2 ways:
Either the _____ adopts a code and requires enforcement OR
The ____ authorizes ______ to adapt their own codes and enforce them
- State
- State authorizes Local Government
_____ tend to be maintenance inspections of buildings
Fire inspections
The legal authority for code enforcement at the state and local level is the constitutionally recognized concept of ______ ______.
- Police Powers
Actions that require judgment
Discretionary acts
Acts that don’t require judgment
Ministerial acts
The question of whether a defendant owed ____ to the plaintiff is at the heart of ____ law
- A duty of care
- Negligence
A lawyer discrediting testimony offered by a witness is called:
Impeachment of witnesses
____ is a complex legal argument that says in effect that fire code enforcement is for the good of the public at large
Duty doctrine
The Constitution of the United States define what three items?
- Structure and operation of the
FEDERAL government - INDIVIDUAL rights
- Allocation of power BETWEEN the
federal government and the
individual states
Most legal scholars mark the ratification of the Constitution as the?
Final act of the Revolutionary War
American courts develop and explain ____ law
Local councils, state legislature, and Congress develop and explain ____ law
- Common
- Statutory
State constitutions, and the federal constitution provide for a judicial review of ____ law
Statutory
Trial courts make legal decisions, but those decisions have no _____ power, and thus are not binding on any other court
Precedential
Courts with precedential powers are called _____. These 3 courts are appellate courts: p. 118
Courts of RECORD or Appellate Courts
- US Supreme Court
- US Circuit Courts of Appeal
- State Supreme Courts
(P. 149, court of appeals = appellate court - mentions jury)
With the exception of the US Supreme Court, appellate courts in the United States can establish precedent in:
A limited geographic area
Which title number of the Civil Rights Act, also prohibits workplace harassment on the basis of race, national origin, religious belief, age- and gender - sexual harassment - in particular?
Title VII
The difference between ADA and the Rehab Act is that the Rehab Act applies to _____; ADA, applies to ____, regardless of the number of employees
- Federal fund recipients (Rehab)
- All local governments (ADA)
A ____ is defined as a person who can perform the essential functions of a job with or without reasonable accommodation
Qualified individual
What is the most challenging aspect of implementing ADA in fire departments?
Most departments currently employ firefighters with disabilities who, in most departments, would disqualify new applicants.
Five provisions from FMLA
- Up to 12 weeks unpaid leave in any
12 month when employees
exhausted sick leave or other
benefits. - Guaranteed healthcare benefits and
his or her own job upon return from
leave - Must’ve worked for the employer for
at least one year - Employer can ask for medical
opinions or other verification, and
can require employee does not
return to work after leave repay the
employer the cost of the healthcare
benefits that are guaranteed during
leave - Employer can deny leave to any of
the highest paid 10% of its
employees if would cause
“substantial and grievous injury” to
the employees operations
What is 29 CFR 1910.134 and what are the parameters?
OSHA Respiratory protection standard
- Two in/two out rule
- Members must remain in visual or
voice contact - Radio not sufficient to satisfy this
- Exception 2 in/2 out is immediate
occupant rescue
Even though federal OSHA standards may not apply in a given JURISDICTION, they can be introduced as what in a civil lawsuit?
Evidence of COMMUNITY standard
The focus of what act was on hazardous material site cleanup?
Comprehensive Emergency Response Compensation and Liability Act of 1980 (CERCLA)
When Congress responded in 1986 by amending CERCLA via this act, it included provisions dealing with firefighter exposure to the risks of hazardous materials incidents, and specifically addressing hazardous materials response training.
Superfund Administration and Reauthorization Act (SARA)
Title III of SARA, which is known as _____, provides for local and regional planning for chemical emergencies and reporting of chemical releases.
Emergency Planning and Community Right to Know Act (EPCRA)
This standard makes the judge the gatekeeper for admission of scientific evidence, making sure that such evidence is relevant and reliable, and that what is represented as a scientific knowledge is, in fact, based on an analysis that meets standards of the scientific method.
Daubert standard
Of the two methods of alternative dispute resolution (ADR), which is most often associated with resolving collective bargaining disputes?
Arbitration
OSHA standards typically represent the minimum standards for firefighters and fire departments in how many states?
50
The three defenses a local government has for a negligence suit:
- Comparative and contributory
negligence (%) - Assumption of risk
- Duty (heart of negligence law)
This defense to a negligence suit filed against a local government presumes that fire and other safety codes were enacted for the good of the community, not for the benefit of any particular person. This can only be overridden if the inspector creates a duty to an individual.
Duty Doctrine
Three ways in dealing with personal liability for government employees
- Employee found negligent, shares cost
with employer - Liability limited as long as act as within scope
- Revolved around how negligent (ordinary, willful, gross)
When discussing the difference between ordinary negligence and gross negligence, how do courts draw the line between the two? F & R
- Foreseeability
- Recklessness
When fire department (or fire chiefs) are sued, the lawsuit usually occurs as a result of one of the more following actions: (6) 3 are similar
- Doing something UNAUTHORIZED
- IGNORING legally mandated
procedures - DEPARTING from rules, regulations,
and standard operating procedures - VIOLATING civil rights
- DENYING due process
- Failing to DOCUMENT
This was the last year that the average fire chief could be worry-free about the law or lawsuits.
1964
This standard gives OSHA broad discretion to apply a safety standard recognized INDUSTRYWIDE when OSHA has no specific standard in place standard
OSHA general DUTY standard
Tyler and Clifford left fire service investigators with what simple rule of thumb?
When in doubt, get a warrant
In a negligence lawsuit, a major goal of lawyers on both sides is to do what?
Make sure the jury understands the standard of care that a firefighter is expected to exercise.
Common law is created by courts as they resolve disputes and the rationale for resolution of the dispute are embodied in a JUDGE’S DECISION generally known as ____.
Opinion or memorandum
The decision is binding within the court’s jurisdiction, and any future case involving the same (or similar) facts with common law. The BINDING decision is called ___.
Precedent
Limited governmental immunity is based on two concepts. Of the four terms used, these two are based on HAVING immunity or liability protection?
Discretionary or governmental
Limited governmental immunity is based on two concepts. Of the four terms used, these two are based on NOT having immunity or liability protection?
Ministerial or proprietary
Steps of a lawsuit or Rules of Civil Procedure (4) CADT
- Complaint
- Answer
- Discovery
- Trial
___ negligence can merit legal protection
____negligence can leave the employee unprotected
- Ordinary
- Gross
Four laws and who they apply to:
- 1974 federal water pollution control act
- Comprehensive emergency response compensation liability act of 1980
- Super administration and authorization act (SARA)
- SARA Title III
- Environmental protection
- Hazardous material site cleanup
- Firefighter exposure to risks of hazardous material incidents
- Local and regional planning for chemical emergencies
This sets the floor for public employee compensation; a local government employer can provide salary benefits that are more generous than those contained in this
FLSA
Four types of statutes that defined and limited local government (and firefighter) immunity from negligence suits
- Scope of employment (acting within
their scope) - Level of negligence (gross, wanton,
etc) - Type of act or action (discretionary vs
ministerial) - Good Samaritan laws
Local government defenses to a negligence suit (3)
- Comparative and contributory
negligence (% of fault) - Assumption of risk
- Duty (duty doctrine vs duty relationship)
