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Firefighters Miss Compensation

Massachusetts Police Injury Attorneys
Legal Article - Firefighters Miss Compensation


For years many Massachusetts fire fighters injured in the line of duty have been shortchanged when it comes to compensation for their injuries. Many are unaware they have valuable claims for tens of thousands, and in some cases hundreds of thousands of dollars, for their pain and suffering, lost overtime pay, scarring and diminished earning capacity.

The typical injured fire fighter usually makes a claim to the City or Town for his or her medical expenses and lost wages pursuant to Massachusetts General Laws Chapter 41, Sections 100 and 111F. These statutes provide that "whenever a fire fighter of a city, town, or fire or water district is incapacitated for duty because of injury sustained in the performance of his duty without fault of his own, he shall be granted leave without loss of pay for the period of such incapacity" and is entitled to have all reasonable medical expenses for services which relate back to the injury paid for.

Often overlooked are claims for negligence, which can be brought by the injured fire fighter (or his representatives where the injury resulted in death) against the responsible third parties for amounts over and above compulsory payments made under Chapter 41, Sections 100 and 111F. These third parties are the individuals or businesses who created the alarm condition, interfered with the fire fighters response to the alarm condition or carelessly maintained the property at the location of the alarm condition. Such claims include those for injuries caused by:

  1. fire, smoke and collapsing structures resulting from improper wiring, improper storage of chemicals and other hazardous substances, improper fire prevention or detection equipment and other human neglect resulting in fire;
  2. dangerous conditions on commercial and residential property such as broken stairs, inadequate lighting, unguarded construction hazards, and accumulations of ice;
  3. collisions caused by motor vehicle operators who fail to yield or cut off fire department vehicles;
  4. hit and run operators of motor vehicles which collide with or cut off fire department vehicles and then leave the scene and can't be identified; and
  5. attacks by dogs or other animals.

Not only do these injured fire fighters have the right to pursue third parties on claims of negligence, but Chapter 41, Sections 100 and 111F authorize Cities and Towns to initiate such claims against these third parties where the fire fighter has failed to bring a claim himself. Where money is collected from the responsible third party, the City or Town is entitled to some of the money as reimbursement for amounts paid to the injured fire fighter for wages and medical expenses. The balance, of course, goes to the injured fire fighter.

Many fire fighters mistakenly believe they are not entitled to further compensation when their injuries occurred during a rescue. Massachusetts Courts have declared a "rescue doctrine." This doctrine provides that a person is liable to the primary victim as well as his rescuer, if through his conduct he endangers another's person or property and the rescuer who goes to aid the endangered person or property is injured during the rescue. Barnes v. Geiger, 15 Mass. App. 365, 446 N.E.2d 78, rvw denied 389 Mass. 1101, 448 N.E. 2d 767 (1983); Edgarton v. H.P. Welch Co., 321 Mass. 603, 74 N.E.2d 674 (1947). Common to the rescue doctrine is an act of intervention by the rescuer, such as running into a burning building. To achieve "rescuer" status, the fire fighter's purpose must be more than investigatory and must be to help the imperiled's situation. Additionally, rescuers are not considered by the Court to be contributorily negligent for placing themselves in a dangerous position.

Before 1973, fire fighters were deemed mere licensees on the property and thus, were unable to sue for injuries sustained during the performance of their official duty on a defendant's land unless the defendant's conduct was willful, wanton, or reckless. This was because they were not classified as "invitees" who were protected based upon their legal relationship with the owner. For example in one of the past cases, Aldworth v. F.W. Woolworth Co., 295 Mass. 344, 3 N.E.2d 1008 (1936), the fire fighter was injured when he fell from a decaying and defective fire escape while fighting a blaze. He could not collect because he was classified as a licensee.

However, in 1973, the Supreme Judicial Court opened the door to such claims by injured fire fighters, when it declared there is no longer a distinction made between licensee and invitee. The Court held there is now "a common law duty of reasonable care that an occupier owes to all lawful visitors." Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43 (1973). In that case a police officer serving a summons at a residence was injured when he fell on an accumulation of ice. Although the facts in the Mounsey case involve a police officer, the case is applicable to fire fighters and others, since the court's decision declared the duty of reasonable care is owed to all lawful visitors.

The Court in the Mounsey case adopted the "reasonable care in all the circumstances" standard, which permits the judge or jury to decide on a case by case basis, what is reasonable in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk. Thus in addition to the examples of negligently caused accidents listed above, there exists a wide variety of accident scenarios where fire fighters can pursue valuable claims for compensation.

There is still a chance for those fire fighters who have overlooked these valuable claims in the past. In most cases, the statute of limitations, which is the time period in which a lawsuit may be filed in Court is three years. Thus, if the injury occurred within the past three years, then the fire fighter may still have valuable rights to compensation. For some cases involving motor vehicle accidents, particularly where the other driver cannot be identified, the applicable statute of limitations may be as much as six years.

As with all claims for negligence there are no guarantees. Many fire fighter injury cases involve sophisticated legal issues, problems of proof, technical insurance policy coverage disputes and issues, which arise under Chapter 41, Sections 100 and 111F. Find an attorney who has successfully handled such cases and will work on a contingent fee basis. On a contingent fee basis the injured fire fighter need only pay for legal services if the attorney successfully collects money on the claim. The attorney typically will receive one third of the money collected. If the attorney fails to collect money for the injured fire fighter, then the fire fighter will owe nothing for legal services and in some cases, just for out of pocket expenses.

If you are a fire fighter that has been injured on someone's property in the last three years or in a motor vehicle collision during the last six years, than you should consult with such an attorney immediately. In most cases the case review and initial consultation are free. For fire fighters who may be injured in the future, consultation with such an attorney soon after the accident may make the difference between a winning and losing case. There are many steps an experienced attorney would take early on to insure success on such a claim.

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