First Responder Liability

Memories of FDIC

Fred Simon — Sun, 02 May 2010 19:54:00 -0500

The week before last I was fortunate to attend three days of classroom instruction and meetings with outstanding instructors at the Fire Department Instructors Conference in Indianapolis. My interest (as you might guess) was directed toward those classes pertaining with emergency responder liability issues, the number of which has grown substantially in the last few years. According to schedule these sessions were limited to an hour and forty-five minutes in length, but the information (as one instructor pointed out), if presented fully, would fill the entire conference and perhaps a college course curriculum. Nevertheless, I brought useful materials and suggestions home to my department to reduce exposure to risk and minimize potential liability in several areas, including the following:

On a topic that is definitely gaining more attention these days Lt. Michael Wilbur (FDNY) gave a relevant talk on Developing a Risk-Management Program for Emergency Vehicle Driving. He stressed the need to maintain not only detailed training records for operators but to document all apparatus use by each member indicating the run type (Code 1 or 3) and the miles driven. Lt. Wilbur also reviewed the NFPA standards for emergency vehicles and their operators and discussed the “due regard for safety of others” standard of care used in court proceedings. Interestingly, we learned that 28% of all emergency vehicle accidents happened while the apparatus was in reverse – for which there should be no excuse! Finally Lt. Wilbur explored the issue whether AOs should be CDL certified.

Deputy Chief (Ret.) John K. Murphy (Eastside WA Fire and Rescue), an attorney, provided insight from a legal as well as an operational perspective on Training Officer Liabilities. His discussion revolved around the premise that liability prevention is about meeting or exceeding expectations. NFPA standards regarding qualifications of instructors, use of a safety officer, rules for live fire exercises, and wellness considerations were reviewed. Chief Murphy stressed that the training event should be planned to manage the unexpected.

I was also very excited and pleased to meet Chief David “Chip” Comstock, Jr. (Western Reserve Fire District, Poland OH), also an attorney, whom I had occasion to communicate electronically with years before when the National Association of Fire and Emergency Service Attorneys was just getting off the ground. Chief Comstock’s talk on The First Amendment and the Firehouse explored issues such as freedom of speech and association as contrasted against a department’s right to maintain order and discipline. It was a discussion that could have lasted days!

Finally I must publically thank hosts Rhett Fleitz (The Fire Critic) and John Mitchell (Fire Daily) for allowing me to participate as a guest on their Firefighter Netcast BlogTalk Radio show to discuss the legal rights and ramifications of Distribution of Photos and Videos Taken by Firefighters at Work. Not only are Rhett and John professional firefighters by day but they have become webcast personalities in their own right among fire and EMS listeners. Thanks again, guys, for your hospitality and courtesies.

Law Office of Fred Simon

Fred Simon — Thu, 08 Apr 2010 16:26:14 -0500

It is with some small degree of modesty but with a great deal of pride that I announce the launch of my FindLaw Website focusing on professional consulting relative to development of contemporary operating procedures and the evaluation of risk management issues within the emergency services.

Because formulating policies and procedures based upon known risks may be too late, subjecting both departments and personnel to possible civil and criminal sanctions, it is incumbent that emergency services anticipate changes in technology and be prepared to meet standards for services based upon changing laws to remain viable and competent operations. The Law Office of Fred Simon will assist emergency services to recognize the importance of planning and be a resource for solutions to address these challenges and evolving liability concerns.

Comments, questions and open discussion of issues are always welcome.

Voices For The PIO

Fred Simon — Mon, 22 Mar 2010 21:33:50 -0500

Effective and responsible communication with the media by emergency services is a necessity for maintaining cooperation and obtaining (as much as possible) fair reporting. However, the general public’s need to know must be balanced by a department’s protection of individual privacy rights, honoring privileged information, and the preservation of evidence for proper authorities. For these reasons it seems, PIOs or Public Information Officers were born.

Recently I discovered Jeff Bressler's The Fire PIO, a blog web site “created to form a community of Public Information Officers who can share thoughts and ideas as well as learn new techniques. The blog focuses in on issues of public relations, social media, marketing, policy, SOP’s, fire ground responsibilities, relevant new product reviews and media outreach.” Jeff is a 20 year veteran of the Smithtown Fire Department located on the North Shore of Long Island’s Suffolk County and I recommend regularly visiting his site for updates and news for these professionals.

While considering PIO duties, perhaps it might also be helpful to mention some important but sometimes overlooked rules that even lawyers tend to forget. In the Legal Crisis Strategies blog, attorneys Lanny Davis and Eileen O’Connor identify “four voices” that should alternatively be used for interviews with the media. Although the blog’s posts are directed to lawyers, the following might be a good primer for PIOs as well:

1. “On the record” is used most often (usually without thinking) and means speaking with attribution, always using the name and identification of the PIO.
2. “On background” essentially stands for "you can use my quotation, but identify me only as a 'spokesperson for' and don’t mention my name.”
3. “Deep background” means that facts provided can be used as long as they are not attributed to the PIO but perhaps a "knowledgeable source" or "source familiar with the situation."
4. “Off the record” should mean just what it says and the information, therefore, is being shared only for the reporter's own understanding and for no other purpose.

If there is any concern about the disclosure, it is essential that a PIO (just like attorneys) define the ground rules with the media for a conversation and confirm in advance how the information is being offered using these “voices” as guidelines.

I Am A Firefighter Because . . .

Fred Simon — Sun, 21 Mar 2010 08:59:47 -0500

For all those following the First Due Blog Carnival, here's my entry:

I am a firefighter because initially firefighting was new, challenging, exciting and fun.
I am a firefighter because firefighting is still challenging, exciting and fun.
I am a firefighter because firefighting allows me to give back to the community.
I am a firefighter because I love to ride on the fire truck.
I am a firefighter because firefighters respect each other.
I am a firefighter because training keeps me fit.
I am a firefighter because training keeps me knowledgeable and safe.
I am a firefighter because firefighting builds character and self esteem.
I am a firefighter because firefighting is a passion.
I am a firefighter because my non-firefighting friends are envious of me.
I am a firefighter because I can’t stand around and just watch.
I am a firefighter because when people need help someone needs to come.
I am a firefighter because firefighting is where the action is.
I am a firefighter because firefighting is the best job in the world.

Another Lesson from DeKalb

Fred Simon — Wed, 10 Feb 2010 17:33:36 -0500

By now most everyone in the industry is familiar with the story of the recent firing of five DeKalb County Georgia firefighters for failing to investigate a 911 call because they did not see any signs from outside the structure. Their attitude (no doubt casual and atypical) toward handling the incident is as baffling as trying to comprehend the reason for lack of adherence to department policies and procedures on that day.

Certainly by this time local wrongful death attorneys have been reviewing the Incident Report filed by the department itemizing the responding personnel’s failures to follow established SOPs in order to establish liability beyond the qualified immunities afforded first responders.

As is usually the case, there are lessons to be learned at every instance where fire and EMS personnel are taken to task about the manner they perform their duties. These events serve as “wake up calls” to pay attention, take every response seriously, and in almost every instance follow department guidelines to the letter.

Our department’s Mission Statement contains six succinct, but equally important directives, one of which is “solve the problem.” No customer or patient can be satisfied unless first responders solve their problem. The most efficient and effective path to that result is by adhering to department SOPs.

I echo the sentiments of my good friend at firecritic.com and wish only the best for members of the DeKalb County Fire Rescue in weathering the storm that will come from this incident. And I am also confident that they will persevere and demonstrate the professionalism that will ultimately define that department in the years to come.

Another Chance?

Fred Simon — Tue, 09 Feb 2010 11:49:30 -0500

Is there a place in the fire and emergency services for past criminal offenders?

Last week I received a telephone call from a potential new client complaining that he felt wrongly denied an opportunity to serve as a volunteer firefighter. Bob (not his real name) stated that previously he had been a career member but had pled guilty for theft and was fired from another department several years ago. He was just about to conclude his probationary sentence, would shortly have paid his debt to society and believed he should not now be discriminated against because of his past conduct.

Bob wanted me to present his case before the fire department board and insist that he should be given a second chance because he had made amends for his past criminal behavior and wanted to further offer his professional firefighting experience as a volunteer.

During our conversation it was immediately apparent why Bob’s request was met with resounding resistance by the fire department. While repaying a debt to society for past indiscretions with jail time, a fine, and perhaps the passage of time with good behavior may be all that is required by the judicial system, fire and EMS services might not be so anxious to have personnel within their ranks convicted of offenses involving theft, violent or immoral behavior. The feeling is that departments must operate without knowingly putting assets at risk and their image to the community must avoid even the appearance of compromising the trust that is inherently given in the performance of their duties.

When we enter structures for salvage and overhaul should the homeowner, in addition to being distraught over the damage, be concerned about theft of personal property as well? In EMS transport situations, should the patient, in addition to being anxious about immediate treatment, also need to worry about theft of money or jewelry by responding personnel?

SOPs should be properly drafted to address a department’s position on this issue. But should the professed remorse and desire of a convicted member to volunteer his services in a profession in which he his fully trained and truly loves be offered another chance to participate? If not suppression, would such an individual qualify for support or an auxiliary role for the department?

No Response

Fred Simon — Sat, 16 Jan 2010 12:05:32 -0500

As the old saying goes, “what if you gave a party and nobody came?” Well, what if you had a fire and nobody came? Sounds incredible but it happens.

For instance, take the Fresno, Texas homeowner whose 3,800 square foot home recently burned to the ground because volunteers failed to respond. KTRK-TV Houston recently reported the incident where although all pagers were working, the department’s Chief could not explain the absence of every single member.

Is there liability in this situation? The homeowner’s insurance company will most certainly cover the loss, but will that insurer have a right of subrogation against the volunteer department or the city if those operations are funded by the homeowner’s tax dollars?

We’re not talking here about delayed response times due to budget cuts (which seems to be a rising trend). Can the public expect a timely volunteer fire and emergency services response in exchange for its tax dollars?

An Alabama case, Hollis v. City of Brighton, 885 S.2d 135 (2004) addressed that issue. Plaintiffs who lost their home to a fire alleged that the City of Brighton established a duty and therefore liability by creating a volunteer department then consisting of nine members with three apparatus. The Supreme Court found no liability by distinguishing the performance expected of career firefighters to those of volunteers saying, “(B)ecause, in creating a volunteer fire department, a city is relegated to the vagaries of volunteer manpower, the undertaking by the city is too indistinct to support a legally enforceable duty to provide skillful fire protection.”

The Value of Friendship

Fred Simon — Sat, 16 Jan 2010 12:03:23 -0500

It was a particularly difficult December. I lost my mother following a courageous twenty-year battle with cancer. Coming almost seven years after my father’s death from complications of Parkinson’s disease her death left me feeling alone (despite strong family support and two close siblings) and emotionally drained. Condolences from my lawyer colleagues, my brother and sister firefighters and other friends were very comforting but the emptiness continues. Thanks to all for their support and help in realizing the true value of friendship.

Fitness for Duty

Fred Simon — Wed, 11 Nov 2009 21:21:29 -0500

There has been a lot of press lately about fitness (or unfitness) within the ranks of emergency responders. It’s not surprising. As most every firefighter knows, half of the annual fire service fatalities involve wellness issues.

In our department we are fortunate enough to provide annual physical examinations (including sight and hearing tests, TB test and blood work analysis with physician review) plus professionally administered stress tests to our members. In addition, we require the completion of an annual physical agility course (tailored to job specific activities) to assure a level of fitness sufficient to engage in fire suppression work. In fact, our department won’t even allow a member to start the agility test without predetermined acceptable (blood pressure and pulse rate) vital signs.

Is it tough requiring all career and volunteer members to appear for physicals and run the agility course (which, by the way, hurts)? Sure. Do we have complaints? Of course. But are we taking reasonable steps to make sure our people can physically perform on the job, address the needs of our customers, and ultimately do ourselves a favor by challenging our members to stay fit? Absolutely.

Why don’t others do this? Many do. Locally one combination department has implemented a strict policy of physical fitness that has resulted in the termination of some career personnel and banishment of volunteers who fail to meet minimum standards. While I personally think this policy goes too far and has brought just criticism against that department, there can and should be a happy medium. Perhaps offering those members who fail to meet the standard a qualified coach to lead them back to an acceptable fitness level within a designated time frame would be more appropriate than automatic termination.

However, the sad truth is that many departments, especially those in rural areas manned by well intended volunteers lack the resources and funding necessary to implement a reasonable wellness program. Couple that with an attitude of invincibility and you have a perfect recipe for disaster. Perhaps we could recruit local doctors or nurses to offer physical exams to members at little or no cost. Maybe we could ask high school athletic coaches to suggest fitness training programs to boost morale and make us healthier.

Whatever the cost or effort, as emergency services personnel it is imperative that we not only know how to save others but that we maintain a level of fitness to adequately perform on the job.

Silent Alarms

Fred Simon — Sat, 17 Oct 2009 17:20:05 -0500

I thought it might be interesting to occasionally mention events and tidbits of legally relevant information that might spark a reader’s desire to investigate or just encourage thoughtful reflection. We will refer to these as “Silent Alarms” because they are not typical full blown dispatches.

On a recent visit to Arizona my wife and I had a chance to attend an open house at Carefree Fire and Rescue, took a tour of the station, exchanged tee shirts and discuss its operations. One interesting topic involved run volume and the nature of their emergency responses. Like most departments, in terms of numbers Carefree Fire answers mostly medical calls. What was surprising however was the second most common emergency response – not fire, not hazmat. It was (rattle)snake removal! No doubt this service requires a different sort of specialized training; a service that I would gladly leave to others, thank you very much.

Last weekend I was graciously billed as a “special guest” and given the opportunity to participate in Episode #4 of Chris David’s blog radio show, Burnin’ It Down, sponsored by his increasingly popular site, thebravestonline.com. We discussed SOPs and their effect on the efficiency of emergency responses as well as ventured into the topic of ownership of videos taken while on duty. I highly encourage readers to visit the site, listen in and participate in future conversations. (Thanks, Chris.)

Speaking of videos, I was very impressed with the views, insight and recommendations offered by Hilton Head Island (South Carolina) Firefighter/Paramedic/Attorney Pete Reid at his Star of Life Law site. His comments on avoiding negative immortality unknowingly available to emergency responders, not to mention the attendant potential civil and criminal liability stemming from recorded altercations with the public are priceless. This post should be mandatory viewing and reading for all first responders.

Helmet Cams, Cell Phones and YouTube

Fred Simon — Sat, 17 Oct 2009 11:33:03 -0500

Although discussions about public display of photographs and videos taken by emergency personnel during working hours have been ongoing for several years it appears to only recently be a genuine legal concern. Technology has provided emergency services with state of the art devices to record events for posterity as well as for official investigations. But most recently it appears that many of these captured moments are being created by career and volunteer members who, to the dismay of some departments (and possibly the horror of their legal counsel) unwittingly post this content (known as “work”) on the internet.

Who owns this work? According to most legal sources any photograph or video recording created by an employee in the course of his or her duty is considered a “work made for hire” under the 1976 U.S. Copyright Act. This means that the employer and not the employee is considered the author, which has rights to protect the work from dissemination as it sees fit. Consequently, a member who, for whatever reason, decides to post the video taken from his personal cell phone on YouTube may certainly be violating the law.

Who owns photographs taken by a volunteer member? The exception to the copyright laws declares that work created by an independent contractor is owned by that individual. But is a volunteer considered an independent contractor? That might depend upon many factors – whether a department offers incentive or other compensation to the individual, whether taxes or other deductions are withheld from pay, whether the department typically controls the manner in which the volunteer performs his services and the circumstances under which the work was created.

To avoid encountering this problem, it is universally suggested that a written agreement or some department policy statement be created declaring that all such works are not subject to mass distribution and/or public consumption without prior approval. There are some very good reasons for doing so, including but not limited to protecting confidential patient information covered by the HIPPA Privacy Rule, avoiding the identification of casualty victims at traumatic events and minimizing the risk of disclosing legally sensitive content from photographs and videos.

A typical SOP might prohibit the use of the camera (and video) function of a personal electronic device while on duty, declare in no uncertain terms that the images taken with authorized cameras or video equipment (as well as inadvertent images taken with personal devices) are solely the property of the department, and prohibit the distribution of any such images on personal web sites, to friends or family, and to any outside agency or media outlet without the prior written consent of the department.

The debate over the public’s right to news and information concerning the particulars of emergency responses as compared to fire, EMS and police department responsibilities to comply with the law and protect legally sensitive content will continue. Each agency must formulate its own policy in this area, educate its personnel as to the reasons for establishing these rules, and be consistent in applying the policy to new technology as it becomes more widespread in the emergency services.

When Things Go Wrong SOPs Do Help

Fred Simon — Sun, 27 Sep 2009 22:20:22 -0500

This weekend I attended the Jefferson County (Kentucky) Regional Fire School and participated in the FEMA Incident Safety Officer class ably and energetically presented by Lt. Ryan Hogsten of the Lexington Fire Department. A significant portion of the curriculum was devoted to consideration of risk management, in both discretionary (advance planning) and non-discretionary (real time decisions) situations.

During the course it became apparent that a first response department may neglect to consider appointment of a Health and Safety Officer (or Committee) to analyze and propose SOPs relating to safe operations. An important but perhaps overlooked responsibility might be establishing protocol when things go wrong. One of the unfortunate but irrefutable results of performing emergency services is that departments do suffer personnel injuries and regrettably experience line of duty deaths (LODDs).

While no department wants to dwell on this reality, unfortunately these events do occur and the emotional fallout affects everyone, reaching far beyond the family of the downed member. A Health and Safety Officer’s pre-planning can alleviate the uncertainty and sensitivity of the moment by proposing implementation of actions in the following areas:

Prompt notification of immediate family;
Clergical intervention;
Departmental crisis counseling;
Public relations management;
Event debriefing; and
Establishing protocol for investigation to determine what when wrong and why to learn from the tragedy.

Each of these areas merits a separate discussion not presented here but suffice it to say that there are no more important assets than your members. When disaster strikes, a department must respond swiftly and appropriately because it owes that responsibility to its personnel.

Are Your Department SOPs Keeping Up with Technology?

Fred Simon — Wed, 23 Sep 2009 20:30:42 -0500

The electronic age is literally playing havoc with emergency services standard operating procedures. Use of cell phones to text message and send photographs plus real time video of events present personnel problems that were non-existent just several years ago.

As Linda Willing writes in her blog at FireFighterNation,com, some departments recognize this as part of a generational gap with the newest members. To partially close that gap, she suggests having SOPs address such topics as use of personal electronics during work shifts and providing consequences for electronic dissemination of inappropriate material, such as videos on YouTube or department-related information on a personal web page.

In Attorney Lawrence Bennett’s most recent Fire, EMS and Safety Newsletter, he offers a legal lesson on the need for clear SOGs on posing for photos while on duty as well as prohibitions against posting them on the internet.

We can all see the benefit in setting and mandating adherence to safety related SOPs and SOGs (like wearing seat belts) to protect our members. Most departments have met the last big challenge and have adopted rules dealing with drug and alcohol use. Isn't it time your department considered updating its policies to address personnel behavior linked to technological innovations?

Kentucky Affirms Sovereign Immunity for Fire Departments

Fred Simon — Sat, 29 Aug 2009 11:34:58 -0500

Recognizing firefighting as a vital profession predating the Commonwealth, the Kentucky Supreme Court recently ruled that fire departments and volunteer fire departments are agents of the state and are therefore immune from suit in tort (civil liability for negligence) in firefighting actions. In addition to confirming that the attendant municipality cannot be sued as well in these circumstances, the decision went further to declare that fire chiefs are also protected from suit absent a showing of bad faith in the performance of their duties.

For anyone interested in a detailed account of the history of the fire service dating back to the American colonies and Benjamin Franklin, the lengthy decision by Deputy Justice Will T. Scott is well researched and departs from the prose typically found in a published legal opinion.

The case involved a business owner’s claim against the a city, its volunteer fire department, and its chief seeking damages for excessive losses for allegedly failing to summon sufficient resources to effectively extinguish a fire. Kentucky’s highest court reversed the opinion of the Kentucky Court of Appeals that previously found the sovereign immunity provisions of KRS 75.070 and its companion statute, KRS 95.830(2) unconstitutional.

Observing a classic Yin Yang balance of the judicial system Justice Scott contrasted the right of people to access the courts against the need to limit attacks on the public coffers. He stated that the purpose of the jural rights doctrine “is to ensure that citizens are afforded an opportunity to have their causes heard in open court.” On the other hand, Justice Scott observed that the doctrine of sovereign immunity is “a bedrock component of American governmental ideal, and a holdover from the English common law.”

In finding the protective statutes constitutional Justice Scott confirmed that the General Assembly may draft legislation articulating "a clear public policy determination that it intends for all fire departments, volunteer fire departments, and firefighters to be immune from tort liability for their governmental or official acts."

However, the decision makes the qualification that firefighters and fire chiefs do not enjoy a blanket grant of immunity unless he or she is "acting solely and alone in a governmental capacity." This protection is referred to as "qualified official immunity" which protects public officials from "bad guesses in gray areas."

The Fatigued Employee Threat

Fred Simon — Tue, 04 Aug 2009 14:30:16 -0500

For several years I have been a fan of the Fire, EMS and Safety Newsletter authored by Attorney Lawrence T. Bennett. His analysis of litigation and issues affecting emergency services is insightful and always relevant.

In the most recent newsletter Mr. Bennett suggests that departments consider adopting SOPs that restrict personnel from driving emergency apparatus unless they have had “adequate sleep” before reporting for duty. It is not uncommon that emergency workers, especially firefighters, work consecutive 24-hour shifts with two different departments. If a responder has been awake most of the night performing one job, would you want him driving your emergency vehicle or attending to ALS patients the next morning without rest?

Examining a recent case involving a Texas drilling company’s potential liability for an employee’s fatal accident while driving home following long shifts, Mr. Bennett anticipates that claims could be made against emergency services if they knowingly permit their employees to drive when they are sleep deprived.

Departments may, of course, balk at establishing such rules when they have little opportunity to monitor the physical or mental condition of personnel arriving for duty. However, an SOP establishing this rule is no different than those provisions prohibiting work under the influence of alcohol or drugs. Ultimately it is the responsibility of the first responder to report for work prepared to perform his or her work in a professional unimpaired manner.

Slow Responses Lead to Lawsuits

Fred Simon — Wed, 15 Jul 2009 20:33:42 -0500

We take for granted that every first responder agency, whether it be fire, EMS or police, strive to initiate their response to an emergency as quickly as possible after the 911 call, a dispatch is made, or “the tones drop.” However, consider where a complaint is made on an emergency crew’s proficiency or perceived delay in remedying a problem.

Take the case of the suburban Los Angeles homeowner who is blaming firefighters for the loss of his historic home when a shed fire allegedly spread to an adjoining tree and then to nearby buildings. A negligence claim is bound to follow.

Can a department, the municipality or individual responders be found civilly liable for damages on these claims? Does the law provide immunity?

The Iowa Code insulates its emergency responders from liability for negligence in connection with a response even when the fire department failed to follow its response policy. However a close reading of Kershner v. City of Burlington might suggest a different result if there was no response to the 911 call.

Good Samaritan Statutes Do Not Protect First Responders

Fred Simon — Sun, 12 Jul 2009 21:08:13 -0500

As reported a column entitled Forewarned is Forearmed in Fire Chief Magazine, the author warns that first responders should not rely on Good Samaritan laws for immunity from negligence claims while performing services on the job. Moreover, when acting as a volunteer (outside ones normal work) there may be a basis for liability if a preexisting duty to provide aid exists.

For example, if an off-duty firefighter comes upon an accident scene on his way home from work and parks his vehicle in such way that results in a collision with more injuries, should he be protected by the Good Samaritan statute?

What can a first responder do to obtain personal liability protection against these claims? Your homeowners policy won't probably supply that coverage. We have discovered that there is personalized insurance available. Although we haven't checked out the policy or terms, there is custom protection offered for first responders at Xinsurance.com. If you inquire, let us know if this is worthwhile.

Louisville Metro Abandons One of Its Own

Fred Simon — Sun, 12 Jul 2009 20:47:28 -0500

In an article reported in the Courier Journal, attorneys for Louisville Metro (the merged city and county government) have filed a motion seeking dismissal of claims filed against it stemming from a fatal accident caused by an off-duty police officer.

While driving his take-home cruiser to work and listening to his police radio, the officer apparently swerved into an emergency lane and struck an individual putting gas in a friend’s stranded vehicle.

The City argues that the officer was not being paid at the time and was not performing any “act that benefits metro government.”

Attorneys for the Plaintiffs contend that any worker who drives a company car to and from work is providing a benefit to the employer, is therefore deemed to be on duty, and the employer is liable for his negligence.

All of which begs the question asked by Plaintiff's counsel: if the police officer was truly on duty, wouldn’t part of his responsibilities be to stop and render aid to a stranded motorist instead of ignoring the potentially hazardous situation?