Medical Care Providers Assume Duty when they Provide Care

For decades, municipal fire services have escaped liability for negligent acts of their firefighters as a result of a plaintiff’s inability to prove the existence of a “special relationship”. The law requires that before any municipality can be liable for injuries to a person, the municipality must have assumed a “special duty” to that person.

Generally, acquiring a special duty requires that the municipality had direct contact with the injured party, that the injured party was given instructions from the municipality, that the injured party relied upon those instructions, that the municipality should have foreseen that the party would have relied upon those instructions, and that the municipality should have known that the failure to carry through with its part could result in harm to the injured party.

For example, many years ago a case reviewed the following fact pattern: A person called 911 to report an intruder in her house. A 911 operator instructed the caller to remain in the house, as the police were on the way. The police arrived at the wrong house and never checked to find the correct house. Soon thereafter, the caller was killed by the intruder. The court held that a special duty was assumed by the municipality to provide help to the caller. 911 had assumed a duty by having direct contact with the caller, and providing instructions and promises which the caller reasonably relied upon.

In the fire service, it is very difficult to establish that an owner of a house which is on fire has a special relationship with the fire department. The plaintiff rarely proves that it had a special relationship with fire department. Thus, the fire department rarely loses a claim against it for failing to properly extinguish a fire.

That is not the case in the area of medical care.

In December, 2004, the Appellate Division held that a fire district had assumed a special duty to a patient of the fire district’s ambulance by the act of providing medical treatment. (See, Kowal v. Deer Park Fire Dist., 787 N.Y.S.2d 352 [2nd Dept. 2004]).

This is a reasonable holding. Therefore, municipal ambulance services should not believe that once they begin to provide care to a patient, that they can claim no duty existed between their municipal ambulance service and the patient.

LENS Program Tracks Volunteer and Employee’s Driving Records

The LENS program is the License Event Notification Service. The program reports events that impact a drivers license, such as a suspension, revocation, conviction, reported accident, and license expiration. The program is free to all fire districts and fire companies and municipal and not for profit ambulance services. The program can even be tailored to provide reports on information the district desires to receive.

Interested participants should obtain the following forms:

MV-15L (application)
MV-15MOU (Memorandum of Understanding for participation)
MV-15GOV (Public Organization Request for Exempt Search Account

Participation in the LENS program can assist your agency at evaluating whether a member or employee should be permitted to operate a vehicle. It is strongly suggested that the agency create a policy that provides how to respond to an infraction, suspension, accident, or other event uncovered by the LENS program.

More information about the program and the above forms are available at the Department of Motor Vehicle’s website.

New Requirements for Emergency Ambulance Service Vehicles

The Department of Health amended section 800.26 effective as of November, 2004. In order to operate non-ambulance response vehicles, ambulance services must now implement new policies, abide by new requirements, and carry all of the equipment required by the Department of Health, or must obtain approval to not carry such equipment. Ambulance services that desire to operate response vehicles other than ambulances must abide by the new requirements. Most notably, is the following requirement:

“The governing authority of any ambulance service which, as a part of its response system, utilizes emergency ambulance service vehicles other than an ambulance to bring personnel and equipment to the scene, must have policies in effect for equipment, staffing, individual authorization, dispatch and response criteria, and maintain appropriate insurance coverage.”

This was not previously a requirement. Moreover, if the ambulance service does not carry all of the equipment required for an EASV, it must obtain a waiver from the Department of Health. The service must provide an acceptable plan which demonstrates how appropriate staff, equipment and vehicles will respond to a call for emergency medical assistance. Regional councils will now have input on the waiver request, though it is unclear what the
effect of their input will be upon the application.

A copy of the new regulation follows. Note that it is not yet updated on the Department of Health’s website.

Section 800.26 Equipment requirements for emergency ambulance service vehicles other than an ambulance.

The governing authority of any ambulance service which, as a part of its response system, utilizes emergency ambulance service vehicles other than an ambulance to bring personnel and equipment to the scene, must have policies in effect for equipment, staffing, individual authorization, dispatch and response criteria, and maintain appropriate insurance coverage.

(a) A waiver of the equipment requirements for emergency ambulance service vehicles may be granted by the department when the service provides an acceptable plan to the department demonstrating how appropriate staff, equipment and vehicles will response to a call for emergency medical assistance. The affected regional EMS councils will be solicited for comment on the service’s waiver request.

(b) Any emergency ambulance service vehicle other than an ambulance shall be equipped and supplied with emergency care equipment consisting of:
(1) 12 sterile 4 inches x 4 inches gauze pads;
(2) adhesive tape, three rolls assorted sizes;
(3) six rolls conforming gauge bandage, assorted sizes;
(4) two universal dressings, minimum 10 inches x 30 inches;
(5) six 5 inches x 9 inches (minimum size) sterile dressings or equivalent;
(6) one pair of bandage shears;
(7) six triangular bandages;
(8) sterile normal saline in plastic container ( 1/2 liter minimum) within the manufacturer’s expiration date;
(9) one air occlusive dressing;
(10) one liquid glucose or equivalent;
(11) disposable sterile burn sheet;
(12) sterile obstetric kit;
(13) blood pressure sphygmomanometers cuff in adult and pediatric sizes and stethoscope;
(14) three rigid extrication collars capable of limiting movement of the cervical spine. These collars shall include small, medium and large adult sizes; and
(15) carrying case for essential equipment and supplies.
(1) portable oxygen with a minimum 350-liter capacity with pressure gauge, regulator and flow meter medical “D” size or larger. The oxygen cylinder must contain a minimum of 1,000 pounds per square inch;
(2) manually operated self-refilling bag valve mask ventilation devices in pediatric and adult sizes with a system capable of operating with oxygen enrichment and clear adult, and clear pediatric size masks with air cushion;
(3) four individually wrapped or boxed oropharyngeal airways in a range of sizes fo(c) Oxygen and resuscitation equipment consisting of: r pediatric and adult patients;
(4) two each: disposable non-rebreather oxygen masks, and disposable nasal cannula individually wrapped;
(5) portable suction equipment capable, according to the manufacturer’s specifications, of producing a vacuum of over 300 m.m. Hg when the suction tube is clamped and including two plastic large bore rigid pharyngeal suction tips, individually wrapped; and
(6) pen light or flashlight.

(d) A two-way voice communications enabling direct communication with the agency dispatcher and the responding ambulance vehicle on frequencies other than citizens band.

(e) Safety equipment consisting of:
(1) six flares or three U.S. Department of Transportation approved reflective road triangles;
(2) one battery lantern in operable condition; and
(3) one Underwriters’ Laboratory rated five pound ABC fire extinguisher or any extinguisher having a UL rating of 10BC.

(f) Extrication equipment consisting of:
(1) one short backboard or equivalent capable of immobilizing the cervical spine of a seated patient. The short backboard shall have at least two 2 inches x 9 feet long web straps with fasteners unless straps are affixed to the device; and
(2) one blanket.

OIG Reviews Waiver of Co-payments by Municipality for Ambulance Fees

In an opinion released September 28, 2004, the federal Office of the Inspector General (“OIG”) of the Center for Medicare and Medicaid Services once again addressed a municipality’s obligation to collect Medicare/Medicaid co-payments from residents for ambulance usage.

The opinion addressed a city which operates an ambulance service, and does not contract out for services. The city desired to implement an ordinance which requires it to bill and collect for ambulance service fees, but not collect out of pocket expenses such as copayments from residents of the city. A unique part of this opinion in contrast to prior opinions is that the city desired not to collect out of pocket expenses from workers that do not reside in the city but that do pay city taxes as part of their income taxes.

It has long been held that the waiver or offer to waive co-payments due from users of ambulance services is generally prohibited by federal law, as it could constitute a kickback or bribe for the ambulance service contract.

In the past, in similar opinions regarding the waiver of residents’ out of pocket expenses, the OIG has referred to a Medicare/Medicaid rule that exempts municipalities from having to collect co-payments. The OIG once again concluded that this situation would not constitute a violation of the anti-kickback law. The OIG further concluded that the workers that paid income tax to the city were tantamount to residents of the city, by virtue of the payment of these taxes.

The OIG reminded readers of the opinion that the ability to waive out of pocket expenses under this rule does not apply to municipalities that contract with ambulance services other than the municipality’s own service. We note, however, that the OIG has concluded that there are other options for waiving out of pocket expenses if a municipality is desirous of doing so. For instance, and generally speaking, a municipality may assume the obligation of the out of pocket expenses of its residents if it pays those expenses on behalf of the residents. Thus, those opinions and this new opinion could possibly be read together to permit a municipality to cover those costs of not only residents but also persons that pay income taxes to the city since they work in a city or other municipality that imposes income taxes.

Any municipality or ambulance service looking to waive co-payments or other out of pocket expenses should seek an opinion from their attorney or an attorney proficient in this area of the law.

Bradley M. Pinsky advises his clients in these matters and has extensive experience structuring contracts between municipalities and ambulance services which address “insurance only” billing arrangements.

Fire Department Liable for Misinforming Person that a Fire Was Extinguished

This case provides a clear example of what it takes for a fire department to be liable for its negligence. In reality, it is very difficult for a fire department to lose a lawsuit. A person suing the fire department has to prove that the fire department formed a one on one relationship with the injured party. This relationship is called a ”special relationship” or a ”special duty”. If the injured party cannot prove the existence of this relationship, he loses the lawsuit. Note the four requirements of forming a special relationship. In this case, all of the elements were met. If even one of the elements is not proven, the plaintiff loses. There were other plaintiffs who had no direct contact with the fire department, and thus failed to fulfill one of the elements. Thus, the court dismissed those lawsuits.

The plaintiff in this case formed a relationship because he had direct contact with the fire department, the fire department assumed a duty to put the fire out, members of the department told the plaintiff that the fire was out, the plaintiff relied on that advice, and the injured party was injured as a result of relying on the advice that the building was safe. Here, the building was not safe and the fire department should have known that the fire was still spreading in the walls. The plaintiff was injured because he remained in the building because he relied on the fire department’s promise that the building was safe.

Vladimir Kodryanu et al., Appellants, v. City of New York, Respondent, and Fred C. Trump et
al., Appellants.
July 3, 2000, Decided

JUDGES: Joy, J. P., S. Miller, Luciano and Smith, JJ., concur.
The instant action arose from a fire that occurred on January 24, 1994, at an apartment building where the plaintiffs resided. At about 2:40 A.M., the New York City Fire Department responded to an alarm concerning a fire in an abandoned vehicle located in the parking garage of the adjacent building. The portion of the garage where the vehicle fire was located extended below the building where the plaintiffs resided. Before leaving the scene after extinguishing the fire, one of the firefighters allegedly told the plaintiff Vladimir Kodryanu, ”Don’t worry” and to ”go back to sleep”. Unfortunately, the Fire Department had not detected that the fire had spread up through the walls of the plaintiffs’ building, and at 3:32 A.M. the Fire Department returned to the scene. The fire caused property damage and injuries.

As a general rule, a municipality may not be held liable for injuries resulting from negligence in the performance of a governmental function absent a special relationship (see, Garrett v Holiday Inns, 58 NY2d 253, 261; Kilfoil v Town of Southold, 211 AD2d 700, 701). ”The elements of a special relationship are: (1) the assumption by the governmental entity of an affirmative duty to act on behalf of the injured party, (2) knowledge that inaction would lead to harm, (3) direct contact between the governmental entity and the injured party, [and] (4) justifiable reliance by the injured party on the affirmative undertaking” (Tammaro v County of Suffolk, 224 AD2d 406, citing Freidfertig Bldrs. v Spano Plumbing & Heating, 173 AD2d 454, 455-456; see also, Cuffy v City of New York, 69 NY2d 255).

The City failed to establish, as a matter of law, the absence of an issue of fact as to the existence of a special relationship between the Fire Department and the plaintiff Vladimir Kodryanu and his family (see, Miller v Morania Oil, 194 AD2d 770; Freidfertig Bldrs. v Spano Plumbing & Heating, supra). However, the remaining plaintiffs failed to show that they had any direct contact with the Fire Department, and thus failed to meet the third element necessary for the creation of a special relationship.

Fire Departments May Not Charge for Ambulance Services

Is your fire department billing for ambulance services? If so, the department is violating New York State General Municipal Law Section 209-b, which forbids this practice. Are you perplexed? After all, the department has been billing for years. Perhaps you are confused because the fire department has operating authority granted pursuant to Article 30 of the Public Health Law. Perhaps you are confused because a billing company still submits bills to insurance companies on the department’s behalf and receives payment. Perhaps you are confused because the federal government has issued a provider number to the department. Regardless of any of these actions which lead you to believe that a fire department may bill for services, it cannot.

Jail time and steep fines could be imposed

So, why not just keep billing until someone tells you to stop? Simply put, the penalties that may be imposed by the federal government alone are reason enough to cease billing. For example, it is possible that the federal government attempts to impose severe penalties on the department for knowingly billing for a service that cannot be billed under state law. If the government determines that billing constituted fraud and/or abuse, the government could seek jail time, $5000 per patient bill submitted, and exclusion of the department from the Medicare/ Medicaid programs.

Since fines are the most common penalty pursued by the government, assume that the fire department billed 2000 Medicare patients over the past four years. 2000 x $5000 per offense could total $10,000,000 in fines. Even worse, the government is permitted to triple the fines in certain instances. Thus, the fire department could incur $30,000,000 in fines for billing 2000 Medicare patients. The fire department would be put out of business.

The government could also seek to impose jail time for the directors and officers of the department under a theory that the directors knowingly engaged in illegal activity.

Also possible is that a patient of the fire department who is sued by the billing company to collect payment counterclaims against the department for damages. If a lawyer determines that he could make a lot of money on this arrangement, and he might, the lawyer could begin a class action on behalf of all of the patients served by the department. Insurance might not cover this activity since it constituted illegal activity and many insurance companies exclude illegal activity from coverage.

What is the solution?

The Pinsky Law Group, PLLC can assist the department by forming a new not-for-profit corporation that is permitted to bill. We can assist with transferring the operating authority from the fire department to the new corporation. We can draft bylaws that are tailored to operate in any way desired, including permitting the corporation to be managed by the fire department if that is desired.

Since the fire department will likely own the ambulance and house the ambulance, the department is permitted to lease the vehicle and the space to the new corporation for a fair market value price.


If your fire department is billing, you must stop! There is a solution to the problem and the fire department may still benefit from the ambulances billings through leasing arrangements. Is billing really worth risking the substantial penalties?

Firefighters Can Sue Those Who Cause Them Injuries

In this case, a firefighter was injured while on land used to fill the engines. The firefighter was filling from a lake and fell off of a poorly constructed wall, which did not have guardrails or decking.

The court held that the firefighter may sue the landowner and recover money for his injuries when the landowner knew of the potential danger and where the danger was not obvious to the firefighter.

Scicchitano & Pinsky can assist firefighters and other rescue personnel who are injured on a scene due to the negligence of non-firefighters. Firefighters are permitted to sue not only landowners, but drivers of vehicles, bystanders, or any other people who cause them injury. Workers compensation is rarely adequate to compensate firefighters injured by another and a lawsuit may be the only means of getting the injured firefighter the compensation s/he deserves.

Gary W. Sadler et al., Appellants, v. Town of Hurley et al., Respondents, et al., Defendant.
February 8, 2001, Decided

On September 24, 1993 at approximately 3:00 A.M., plaintiff Gary W. Sadler, a volunteer firefighter with third-party defendant, Olive Fire Department No. 1, Inc., went to Kenozia Lake, located on Boyce Road in the Town of Hurley, Ulster County, to assist in pumping water from the lake into tanker trucks. The lake was owned by defendant Tonche Association, Inc., which had an agreement with the fire department permitting it to use the lake to extract water for use in firefighting. Upon arriving at the lake, Sadler began assisting in setting up a pumper truck. As he walked toward the truck to obtain his gear, he was unable to see the ground due to poor lighting and fell off the side of the dam and into the lake, sustaining serious injuries.

Consequently, Sadler and his wife, derivatively, commenced this action in December 1994 against Tonche and defendant Town of Hurley alleging that they negligently maintained the dam and road at the end of the lake, which caused Sadler’s fall and injuries.

[words deleted]

It is axiomatic that Tonche, as a landowner, had a duty to maintain its property in a reasonably safe condition and to warn individuals lawfully on its property of latent dangerous conditions (see, Comeau v Wray, 241 AD2d 602, 603). The record reveals that Tonche was aware that fire department volunteers would be on its property to extract water from the lake in order to fight fires. Plaintiffs’ expert opined that Sadler’s accident was caused by the negligent construction and maintenance of the dam due to its irregular shape and the absence of guardrails and decking over an indentation along the dam where Sadler fell.

[decision in favor of firefighter]

Having a hard time finding a treasurer or secretary?

If your corporation is having a difficult time getting qualified members to fill the positions of treasurer or secretary, consider permitting non-members to serve in these positions.

An EMS corporation is permitted to have non-members serve on the board of directors. The bylaws may state that the treasurer and secretary may be members or non-members of the corporation. This will permit the corporation to recruit a volunteer accountant or other qualified person to serve as treasurer. Perhaps a retired community member is willing to serve as secretary or treasurer? Perhaps the spouse of a member is qualified and willing to serve in one of these positions.

If members are concerned that a non-member might not understand the issues of an EMS agency, then the bylaws can simply prohibit the treasurer and secretary to vote if nonmembers hold these positions.

Also consider permitting the board of directors to appoint and remove the treasurer and secretary. The board is in the best position to evaluate the quality of these officers’ work product. If the treasurer or secretary are not fulfilling their duties, then the board can remove them without too much effort. After all, these positions should not be filled by a popularity vote, but by persons who are most qualified and willing to do the jobs properly.

There are many community members who would be willing to assist your corporation if you just give them the chance. While people do not have time to attend emergencies, they might be willing to attend meetings and perform the duties of treasurer and secretary. In our time, it is hard enough to get people to attend trainings and emergencies. Why not give the job of treasurer and secretary to people who have more time to spare?

How to Limit a Director’s and Officer’s Liability for Mismanaging Corporate Funds

Directors and officers of fire protection and EMS corporations can be held personally accountable for mismanaging, wasting or illegally transferring corporate funds. Directors and officers should be careful to protect themselves from personal liability for these actions. In some cases, the directors and officers can be forced to pay the funds back out of their own pockets. Losing such a lawsuit can be easier than one thinks, and many boards of directors are not doing what they must to protect themselves.

This article deals with the most common problem we find among fire and EMS corporations in New York. Directors and officers fail to provide proper notice of meetings, fail to hold meetings in accordance with their bylaws and New York State law, and fail to adequately document the decisions.

Why are directors and officers liable for mismanagement of corporate funds?

Most fire protection corporations and many EMS corporations in New York State are not-forprofit corporations. The law which regulates those corporations is titled the “Not For Profit Corporation Law”. The Not For Profit Corporation Law provides that members of the corporation may bring a lawsuit on behalf of the corporation against a director for mismanaging or improperly spending or transferring corporate funds. Thus, if you are a director or officer, your own members may start a lawsuit on behalf of the corporation, against a director for actions which resulted in the transferring or wasting of corporate funds.

There are a number of ways that directors and officers can mismanage, waste or improperly transfer funds. This article provides only a few of the many important suggestions.

How can the directors and officers protect themselves?

First, the bylaws of the corporation should give the directors and officers the power to make decisions regarding the spending of corporate assets. Some corporations give the members the right to approve all of the expenditures. This can be dangerous because members can assert that they did not understand or approve of the expenditure. If members are going to be permitted to approve of the expenditures, or as is more common, the more expensive expenses (e.g.,: any item over $2,000), the members should be presented with a very specific resolution clearly identifying the item to be purchased, the cost, and the method used to pay for it.

Second, the directors and officers must receive proper notice of the meeting at which the expenditure is approved. Notice must be given in accordance with the bylaws and the New York State Not For Profit Law. If the corporation amended its bylaws without consulting the law, there is a danger that the notice given was insufficient. Thus, any vote taken at the meeting may be invalid and improper. The same is true for a member meeting if the members are permitted to approve any expenditure.

Third, there must be a proper quorum at the meeting, and the vote must take place in accordance with the bylaws. Again, quorum and voting requirements are imposed by New York law, and the law must be consulted when drafting the bylaws.

Fourth, after a proper vote is taken, minutes should be maintained documenting the resolution was approved. The minutes should state something like: “Upon motion made, seconded and discussion held, the following resolution was approved: Be it resolved that…”. The motion should simply be to approve the resolution. The resolution should be specific and clear. For instance, instead of stating “The corporation resolved to purchase a new engine”, the resolution should state: “The directors and officers shall be permitted to expend funds in order to purchase a new type x engine between the amounts of $x and $x. The corporation may purchase the engine by entering into a lease, executing a note for a loan at x% interest for x years, or paying for in cash”. Learning how to draft resolutions is a critical skill in order to ensure that the directors were fully aware of what they voted upon.

The minutes should then be reviewed and approved at the next board meeting. Of course, a motion to approve the minutes should be made, seconded and carried.


Since the law does permit lawsuits to be brought by members against directors and officers of the corporation for mismanaging or inappropriately transferring corporate funds, the board of directors should be extremely careful to ensure that they follow proper procedures for spending the funds. Directors and officers should receive training each year by a lawyer knowledgeable in managing corporations to ensure that members are not in a position to challenge the decisions made based simply on bad procedures or poor record keeping. The bylaws should also be reviewed to ensure compliance with New York State law.

How to Protect the Corporation After a Motor Vehicle Accident

Accidents are going to happen. As a result, so are lawsuits. People involved in an accident may sue the fire department or ambulance company, regardless of who is at fault. However, if a citizen is injured in an accident, and if the citizen sues your corporation, the corporation must defend itself. If a private citizen causes the accident that injures a volunteer or employee, these same steps can assist in prosecuting a lawsuit against that person. Certain simple steps can protect or assist the volunteer/employee, while other actions can increase the chances of successfully defending a lawsuit.

1. Be careful of what is said after the accident

Admissions of fault are admissible in court and are difficult to overcome. They will often be discovered by the person suing and therefore must be avoided at all costs. Thus, drivers must be careful what they say and to whom. A person’s first reaction may be to apologize. Apologies should be avoided by the driver, but be recorded exactly as stated if the other driver provides an apology or admission of fault.

2. Steps to take after an accident.

Employees and volunteers should be instructed that they should take the following steps:

(a) Report the accident to the dispatcher over the radio. Do not give any details that could give the impression that the driver caused the accident or was at fault. Request medical assistance as needed. Have the police respond to complete a report, especially if the other party was at fault.

(b) While speaking to the other party will be necessary to determine if the other party is injured and to obtain insurance information, do not apologize.

(c) Instead of making a statement to the police, the employee should request that the police contact him after he has spoken to his supervisor.

i. If the fire or EMS personnel know the police conducting the investigation, do not appear to be openly friendly with the police. This might give a witness the impression that the police are biased in their investigation.

(d) A supervisor should report to the scene of the accident to begin an investigation. Do not rely on a police officer to conduct a complete investigation.

(e) Quickly determine if the person was wearing a seatbelt. If someone was injured and removed by other EMS personnel, make sure to determine if a seatbelt was removed by EMS or was fastened when the patient was approached. The failure of a person to wear a seatbelt could significantly impact the amount of an award received in court.

(f) Either the supervisor or the employee should begin the following, as soon as possible:

i. Photograph:
1. all vehicles that were present during the accident. Note their locations if they have moved. Note the damage to the other vehicles.
2. any temporary conditions, such as rain, snow, potholes, oil.
3. all traffic control devises.
4. All persons watching the accident scene. This will assist to prove where a witness was standing during an accident, or if they were even present.

ii. Obtain names, addresses and phone numbers of witnesses.

iii. Obtain statements of witnesses if they are willing.

iv. Obtain the names of all drivers of other vehicles involved. Obtain the names and addresses of all passengers in vehicles that were involved.

(g) If the vehicles were moved after the accident, a diagram should be created showing the exact location of all of the vehicles involved.

(h) Contact your attorney. Ideally, communications regarding the accident should be conducted with the lawyer. Most communications with lawyers, and subsequent statements in writing, will be protected by the attorney/client privilege. This privilege protects statements from being discovered and reviewed by the person suing.

(i) Obtain a copy of the police report. Police complete an MV-104 form. A copy should be obtained from the police as soon as it is requested, with copies of all photographs and drawings.

Do not complete any “unusual incident reports” or provide any written statements to the corporation if possible. The corporation should not take any notes that indicate fault or the progression of the accident. While those involved in the accident must be encouraged to be truthful, writing them down could be dangerous, and such statements may be discoverable and admissible in court. Thus, the lawyer might be the best person to conduct this interview.

Do not create a policy that permits written statements if someone else was at fault but prohibits statements if the volunteer/employee was at fault. This could lead to the conclusion that the absence of a statement is indicative of the volunteer’s/employee’s fault.

3. Call your insurance company.

Many insurance companies require that you notify them of any incident which could result in a lawsuit. Often, there is a time limit for such notification, after which time, the insurance company can refuse to provide a defense or insurance coverage. Often times, the insured has ninety (90) days to notify the insurance company. However, there is no reason to wait to provide such notification. Waiting only increases the risk of forgetting. Do not assume that just because the persons involved in the accident did not “appear” to be injured, that there will be no lawsuit. Do not assume that just because the other driver or passengers were kind, that they will not sue. Finally, do not assume that just because the other person was at fault, that s/he will not sue.

Notification to the insurance company should not be just a simple phone call. The notification should be transmitted in writing, by certified mail, to the address required by the insurance company. Do not transmit any facts in this notification, other than the company vehicle or volunteer/employee was involved in an accident on a certain date, at a certain location and time. Provide a person to be contacted by the insurance company. Instruct the company, once you are contacted, about all of the items acquired in your investigation.

4. Driving policies can increase chances of being at fault

Generally, policies that impose a standard of driving conduct which are more strict than the law are not admissible in court. However, this rule is not absolute. Therefore, policies that impose driving conduct or prohibit driving conduct that is permitted by the law should be avoided.

For example, Vehicle & Traffic Law Section 1104 permits an emergency vehicle to speed so long as it does not endanger life or property and so long as the driver operates with due regard for the safety of other persons. Thus, there is no maximum speed limit imposed. However, the NFPA does have a model policy that prohibits exceeding the speed limit by more than ten (10) miles per hour. This policy will result in an investigation and line of questioning during the trial as to how fast the driver was traveling and a theory that the driver violated the standard of care by traveling beyond ten miles per hour over the speed limit.

Additionally, this same NFPA model policy provides that all vehicles must be able to stop at a controlled intersection. Note that the policy does not state that the vehicle must be able to stop only at red lights, but all lights and stop signs. New York state law, however, only requires that the vehicle slow down as necessary at red lights and stop signs. Thus, if the NFPA driving policy was adopted by a fire company, then the driver could be liable for not being able to stop its vehicle at a green light, even though the driver of the fire apparatus had the right of way. We all know how difficult it is to quickly stop an engine with 1500 gallons of water or a type III ambulance.

Therefore, avoid driving policies that impose any requirements other than those as required by the NYS Vehicle & Traffic Law. If a driving policy is strongly desired, title such policy a “Best Practice Guideline”.


Becoming involved in accidents is a normal hazard of driving an emergency or personal vehicle. Taking simple steps to prevent liability and to ensure insurance coverage is important. Training your volunteers and employees in safe driving practices is the best means to prevent accidents.