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NOVEMBER 2025 – FIRE & EMS LAW NEWSLETTER
- IPSLEI Admin
- Nov 3
- 51 min read
[NEWSLETTER IS NOT PROVIDING LEGAL ADVICE.]
Lawrence T. Bennett, Esq.
Professor-Educator Emeritus
Cell 513-470-2744
You may purchase Professor Bennett's book at
24 CASES - OCT. DECISIONS
UPDATING: 2017: TEXTBOOK: FIRE SERVICE LAW (Second Edition)
(ISBN 978-1-4786-3397-6); Waveland Press: http://www.waveland.com/browse.php?t=708
Chap. 4 – Incident Command, incl. Training, Drones, Communications
Chap. 9 – Americans With Disabilities Act
Chap. 10 – Family Medical Leave Act, incl. Military Leave
Chap. 11 – Fair Labor Standards Act
Chap. 12 – Drug-Free Workplace, inc. Recovery
Chap. 14 – Physical Fitness, incl. Heart Health
Chap. 16 – Discipline, incl. Code of Ethics, Social Media, Hazing
Chap. 18 – Legislation, incl Public Records
OTHER ONLINE RESOURCES
2025: FIRE & EMS LAW – RECENT CASE SUMMARIES / LEGAL LESSONS LEARNED: Case summaries since 2018 from monthly newsletters: https://doi.org/10.7945/j6c2-q930.
2025: FIRE & EMS LAW – CURRENT EVENTS: https://doi.org/10.7945/0dwx-fc5
2025: AMERICAN HISTORY – FOR FIRE & EMS: https://doi.org/10.7945/av8d-c920
2015: EMS LAW – Legal, Political & Regulatory Environment of EMS:
https://scholar.uc.edu/concern/documents/ht24wm15r?locale=en
VIDEO: Vertical Take-Off Aircraft – For Medics / Rural Areas
See June 25, 2025 article and video about future, battery-powered, virtual take-off aircraft to take a paramedic to patients in rural areas. Kirk McKenzie is former Adjunct Professor at UC Fire Science & Emergency Management. On Oct. 8, 2025, Kirk McKenzie and several other “drone” experts did a presentation at UC that I was proud to attend. https://www.fireapparatusmagazine.com/fire-apparatus/ems-aircraft-points-to-potential-future-of-ems-operations/
________________________________________________________________________
Chap. 1 – American Legal System, incl. Fire Codes, Investigations, Arson
WI: ARSON – NO MIRANDA – NOT IN CUSTODY BY ATF
On October 28, 2025, in United States of America v. Arletta Allen, U.S. District Court Chief Judge Pamela A. Pepper, United States District Court for the Eastern District of Wisconsin adopted the U.S. Magistrate Judge William E. Duffin’s recommendation to deny defense motion to suppress statements she made to ATF Special Agents on November 2, 2021 sitting in their vehicle as agents searched her home. According to the indictment, on or about October 10, 2021, Allen maliciously damaged by fire a restaurant known as “A Family Affair Soulfood Kitchen” located at 417 S. Main Street in Fond du Lac, Wisconsin. Judge Duffin determined that in light of all the facts, the defendant had failed to establish that her movement was restricted to the degree of an arrest. Judge Duffin recounted that SA Heimerl had told the defendant that she was not under arrest and had explained that the search team was present to execute the warrant. https://public.fastcase.com/jaEE2PXzRXmZ99jOLMt1Io7YtJZzhGRSpWTaEU5VEs33%2BTg9rUAoQurxZOT9gqkAJFaugLm9Mxx2CSeMl9vD0%2FrzAe6H5F%2F5zH2a3krjQxc%3D?utm_medium=email&_hsenc=p2ANqtz--xi3xhqQTQTPjw8tThXPxla5fboNp_lyjnL-u37viXN8Zx1O-9U8osPNb7oBpn1RZ6w4oAGvXBZvBP5z9zhZ_Qvufy4w&_hsmi=226712652&utm_content=226712652&utm_source=hs_email
THE COURT HELD:
“On November 1, 2021, Magistrate Judge Stephen C. Dries issued search warrants for the restaurant, the defendant's house and the defendant's Dodge Durango…. Judge Dries also issued a search warrant for the defendant's Facebook account….
On the morning of November 2, 2021, Special Agent Kevin Heimerl called the defendant and asked to meet with her to ‘share a little bit of information.’ .... SA Heimerl and SA Matthew Anderson were parked about one block away from the defendant's house at the time of the call…. Heimerl recorded a portion of this phone call and his later in-person conversation with the defendant that morning…. About two minutes after speaking with the defendant on the phone, the agents arrived at her home and parked in her driveway at the rear of the home….
***
Heimerl told the defendant, ‘Just get what you need to get and we're gonna go outside and sit in my truck. Okay?’ … The agents then escorted the defendant downstairs and toward the parked truck…. The agents did not pat the defendant down or place her in handcuffs…. The defendant asserts that Heimerl placed his hand on her arm and physically guided her out the door of her home, while Heimerl states that he did not have any physical contact with the defendant after taking her phone…. Once at the truck, the defendant was escorted into the front passenger seat…. Heimerl sat in the driver's seat and turned on the vehicle and its heating system, while Anderson sat in the rear passenger seat behind the defendant.
The defendant then saw approximately ten officers approaching her home with weapons drawn…. The defendant believed that the officers looked like a SWAT team and was visibly shaken, anxious and upset…. Heimerl questioned the defendant about the fire, including showing her images from the surveillance footage, while law enforcement executed the search warrant… The defendant was in the truck for approximately two hours…. Neither agent informed the defendant of her Miranda rights…. The defendant previously had met or spoken with Heimerl six times before this but never had been shown the surveillance images from the night of the fire…. Both agents were in plainclothes and armed during the interview, but did not display their weapons to the defendant…. During the interview, the defendant was ‘visibly shaken, upset, and scared’ with ‘tears in her eyes at times.’ … The parties agree that ‘portions’ of Heimerl's questioning constituted an interrogation, but dispute whether the interrogation was conducted in a custodial setting.
***
Based on the totality of the circumstances, the court agrees with Judge Duffin that the defendant was not in custody. The defendant's initial contact with the agents was at her house. Although the agents went with her, she was allowed to get warmer clothing. She left her house and went with the agents to their truck, which was on her property. She remained in the truck for about an hour for the purposes of questioning (the questioning did not continue into the second hour), she was not physically restrained and she was released at the end of the conversation. The agents did not point their weapons at the defendant or threaten her. She was not detained at a police station or government building. Heimerl told the defendant that she did not have to answer the agents' questions, and the defendant demonstrated that she understood by declining to answer when asked to explain why she may have been at her restaurant on the night of the fire. Although there were several officers present to execute the search warrant, the defendant directly interacted only with Heimerl and Anderson, both of whom were known to her from previous interactions. The defendant has not alleged that the agents yelled at her or that they physically or verbally abused her. Although the defendant may have felt scared or upset during the interview, her subjective perception of the circumstances is not the issue. The question is whether a reasonable person in her position would have felt free to leave. Judge Duffin did not err in concluding that a reasonable person in that position would have felt free to leave.”
Lesson learned: The case will now proceed to trial; arson investigators should consult with prosecutors about their plan to have defendant wait in their vehicle as her home is searched, and when Miranda warnings should be given.
Note: See the Dec. 17, 2024 Press Release by U.S. Attorney’s Office when she was indicted. “Former Restaurant Owner Indicted for Arson and Related Charges”
Chap. 1 – American Legal System, incl. Fire Codes, Investigations, Arson
NY: HOSP FIRE – PT’s FRAYED CELL CHARGING CABLE
On Oct. 9, 2025, in Krystel-Marie Desmornes as Administrator of Jean-Daniel Desmornes v. The Brooklyn Hospital Center, Judge Ruper P. Barry, Supreme Court, Kings County, granted defense motion for summary judgment. The COVID patient started a fire caused by his use of his frayed, after-market cellphone charging cable. https://cases.justia.com/new-york/other-courts/2025-2025-ny-slip-op-33961-u.pdf?ts=1761686709
THE COURT HELD:
“This action concerns a fire in the Brooklyn Hospital Center (hereafter ‘BHC’) Emergency Department on March 26, 2020, involving Jean-Daniel Desmornes, who had been admitted to BHC with covid on March 25, 2020. Immediately after the fire, the FDNY examined the scene and FDNY Marshall John Urrico concluded that the fire was solely caused by Mr. Jean-Daniel Desmornes’ use of his frayed, after-market cellphone charging cable.
***
In support of its motion, BHC submits the medical records, the FDNY records, the deposition of its then BHC Chief Operating Officer, Robert Aucilino, the expert affirmation of Eugene West (hereafter ‘Mr. West’), and the expert affirmation of Mark Silberman, M.D. hereafter (‘Dr. Silberman’). Mr. West is an expert in fire origin and cause, fire/arson related human factors and behavioral profiling, the management of major case fire incidents, fire department operations, fire incident sequencing, fire scene
reconstruction, building codes and fire codes.”
Lesson learned: Frayed cell phone charging cable can cause a fire.
Read this Feb. 3, 2025 article: What Causes Phone Chargers to Explode? (And How to Avoid It). https://www.voltacharger.com/blogs/news/what-causes-phone-chargers-to-explode-and-how-to-avoid-it?srsltid=AfmBOor-D0Mt5iX7UDwb-r4sqdnXak-6s4LPkG62kZWVkLQCSPJSBjBB
Chap. 2 – Line Of Duty Death / Safety
MT: OFF-DUTY FF - PUNCHED IN FACE – “ROAD RAGE”
On October 21, 2025, in State of Montana v. Jeffrey W. Burrington, the Supreme Court of Montana held (5 to 0) that jury properly convicted the defendant of Aggravated Assault of Ryan Williams. The Trial Court judge sentenced him to seven years, but all suspended. The firefighter (a smoke jumper) pulled over when the defendant was “tailgating” him and then was punched in the face – fractured mandible. The jury rejected the defense that Burrington was particularly fearful for being involved with two prior “road range” incidents - his wife testified about 1987 incident (person pulled a gun on he and his wife); 2023 (a driver brandished a machete at his wife). The trial court would not allow prosecution to tell jury about third incident: 2017 (he pled guilty to disorderly conduct after he punched one of the motorcyclists where a group of bikers were “boxing in” his car). https://cases.justia.com/montana/supreme-court/2025-da-25-0100.pdf?ts=1761082851
THE COURT HELD:
“On July 22, 2023, Burrington was driving with his wife, Sally Burrington, when he
began ‘tailgating’ Ryan Williams’s car. Williams pulled over, and the Burringtons
stopped their vehicle behind him. Both parties stepped out of their vehicles. Williams
asked Burrington, ‘What’s wrong?’ and Burrington became ‘extremely belligerent.’ As
the altercation escalated, Burrington began accusing Williams of being from Washington.
Burrington then punched Williams in the face, at which point Williams returned to his car
and the Burringtons left in their vehicle…. The next day, after suffering significant pain and swelling, Williams left work and went to the hospital. He was diagnosed with a fractured mandible. He filed a police report after his medical diagnosis.
***
To support the JUOF [justifiable use of force] defense, Burrington introduced two incidents relating to road rage. These incidents were meant to demonstrate Burringtons’ fear during the event. Burrington’s wife, Sally Burrington, testified first. She testified to both incidents. The first incident, which occurred in 1987, involved both Burrington and his wife being allegedly involved in a roadside incident where someone ‘pulled a gun’ on them. The second incident occurred in 2023, where another driver brandished a machete at Sally. Burrington in a parking lot behind a gas station. Sally also testified about her husband’s protective instincts towards his family.
***
Burrington also testified about the two prior incidents introduced in Sally’s testimony. On cross-examination, the State inquired into more detail regarding these events. As the State’s questioning moved from the 2023 incident to the 1987 incident, Burrington’s attorney—anticipating the State was asking about the excluded 2017 incident [where defendant assaulted a motorcyclist and pled guilty to disorderly conduct]—objected to the State’s question. The court explained defense counsel was mistaken, stating ‘He’s talking about Ms. Burrington’s previous road rage.’ Burrington did not object to the court’s reference of the 1980’s incident as ‘Ms. Burrington’s previous road rage.’
***
Ultimately, it was Burrington who introduced this evidence [prior “road rage” incidents] in the first instance, opening the door for the State to challenge Burrington’s
characterization of the events, and did not object to the State’s question or request other
acts jury instruction. The comment and the lack of other acts instructions did not implicate Burrington’s fundamental rights and failure to review it would not result in manifest injustice.”
Lesson learned: Unfortunate the “road rage” defendant received suspended sentence.
Chap. 2 – Line Of Duty Death / Safety
OH: MOBILE HOME FIRE – OWNER THREATENS FF – CONV
On Oct. 20, 2025, in State of Ohio v. Christopher W. Longnecker, the Court of Appeals of Ohio, Twelfth District (Clermont County), held (3 to 0) conviction affirmed. On July 31, 2023, firefighters were dispatched to extinguish a fire at defendant’s mobile home where his son was burned and two pet cats died. Longnecker arrived, became agitated, and threatened to "bash" volunteer firefighter Justin Pendergrass' "face in." The jury returned guilty verdicts on all three counts; trial court judge sentenced Longnecker to 180 days in jail and a $200 fine for aggravated menacing, and 30 days in jail and a $100 fine for misconduct at an emergency (to be served consecutively), plus court costs. On appeal the Court of Appeals held that prosecution had no duty to disclose the oral statements he made to fire investigation team leader, Christopher Mullins - that “he was going into the house no matter what”- since the statement were not recorded by Mullins or other investigators on a document or on video. https://www.supremecourt.ohio.gov/rod/docs/pdf/12/2025/2025-Ohio-4780.pdf
THE COURT HELD:
“On July 31, 2023, firefighters from the Felicity-Franklin, Washington Township, and Bethel-Tate Fire Departments were dispatched to extinguish a fire at Christopher Longnecker's home in the Country View Mobile Home Park. Due to the fire, Longnecker's home was badly damaged, his son was burned, and his two pet cats died. While the firefighters were still working at the scene, Longnecker arrived, became agitated, and threatened to "bash" volunteer firefighter Justin Pendergrass' "face in."
***
Clermont County fire investigation team leader, Christopher Mullins, spoke with Longnecker to obtain consent to search the home for the cause of the fire, but Longnecker refused. Mullins also warned Longnecker that he was not permitted to enter the home, as it was still too dangerous and might interfere with the fire investigation. While the fire investigation team waited to obtain a search warrant, Clermont County Sherrif's deputies followed Longnecker around the property to ensure he did not interfere with the firefighters. Longnecker then attempted to enter the home and was tackled and arrested by the deputies.
Longnecker was later indicted for misconduct at an emergency, aggravated menacing, and menacing; the case proceeded to jury trial on October 8, 2024. One of the central theories of Longnecker's defense was that none of the public officials at the scene that day specifically told him he could not enter his home. However, at trial, Fire Investigator Mullins testified that he told Longnecker he could not enter his home and Longnecker answered ‘that he was going into the house no matter what. It was his house.’
***
During the sidebar discussion, the State did not deny that it was aware Mullins was going to testify to Longnecker's statement and responded dismissively to the defense's apparent surprise:
‘I can ask him if he told this man not to go in the property and the fact that they think it's prejudicial, it is. Maybe they should pick up the phone and call the witness and interview them. I don't have a report to give them. I disclosed the witness. I've done my job. I can ask the question.’
The trial court overruled Longnecker's objections and permitted the testimony. Longnecker's oral statement to Mullins was never recorded, summarized, or
otherwise documented prior to Mullins' testimony at trial.
***
Under the plain text of the rule [Crim.R. 16(B)] unrecorded oral statements to a law
enforcement officer, that are not subsequently documented in a summary or report, are
not subject to disclosure in discovery. [Footnote 1.] Accordingly, we find the trial court did not abuse its discretion when it admitted Mullins' testimony regarding Longnecker's oral statement and did not abuse its discretion when it denied Longnecker's motion for a mistrial. Longnecker's sole assignment of error is overruled.
Footnote 1: Not every oral statement made by a defendant is always recorded or documented in a report by law enforcement. Therefore, the onus is now on defendants to remember their oral statements. There is concern that a law enforcement officer could specifically choose not to document certain oral statements to avoid disclosure and obtain a surprise advantage at trial. Nevertheless, we are bound to apply the plain text of the rule without making our own additions or subtractions.”
Lesson learned: Defendant sent to prison for threats to firefighters.
Chap. 2 – Line Of Duty Death / Safety
NY: FDNY INJURED - CAN SUE CONST. CO FOR DEBRY
On Oct. 19, 2025, in Christopher Martucci v. 500 W25th Owner, LLC, et al., Judge Leslie A. Stroth, Supreme Court, New York County (unpublished opinion), held that the firefighter may proceed with his lawsuit under the New York statute that amended the “Fireman’s Rule.” The NY state statute allows firefighters to sue a property owner for damages for failing to comply with the requirements of any statutes, ordinances, rules, orders and requirements of the federal, state ... or [local] governments' 'directly or indirectly' causes the firefighter's injury or death during the discharge of his or her duties. The firefighter injured his leg and arm on March 12, 2018, when moving a construction worker on a stokes basket after the worker’s recovery from a 30–40 foot pit. The firefighter says he fell when walking on “material piles” and this violated Industrial Code § 23-2.1(a)(1) which requires building materials cannot obstruct any “passageway, walkway, stairway or other thoroughfare.” https://cases.justia.com/new-york/other-courts/2025-2025-ny-slip-op-33918-u.pdf?ts=1761341322
THE COURT HELD:
“The Court finds that an issue of material fact remains as to whether there were ‘material piles’ on a ‘passageway, walkway, stairway or thoroughfare.’
***
Plaintiff alleges that he responded to an accident on a construction site located at 500 W 25 Street, New York, NY on March 12, 2018. A construction worker had been injured at the bottom of a large excavation pit that was approximately 30-40 feet deep and Plaintiff was dispatched as part of the FDNY Special Operations Rescue Unit. After the injured worker was pulled up from the excavation pit, Plaintiff assisted in carrying him in a titanium basket from the perimeter of the pit, across the construction site, and to the ambulance. As Plaintiff was transporting the injured worker, Plaintiff alleges that he had to step over large amounts of debris and material, that he lost his footing, and that he felt a pop and shooting pain in his left leg and a strain in his arm.
***
General Municipal Law § 205-a provides an exception to the common-law ‘firefighter rule,’ (Galapo v City of New York, 95 N.Y.2d 568, 573 [2000]). Under General Municipal Law § 205-a, a firefighter has a right of action where ‘the negligence of any person ... in failing to comply with the requirements of any statutes, ordinances, rules, orders and requirements of the federal, state ... or [local] governments' 'directly or indirectly' causes the firefighter's injury or death during the discharge of his or her duties (Giuffrida v Citibank Corp., 100 N.Y.2d 72, 77 [2003])."the negligence of any person ... in failing to comply with the requirements of any statutes, ordinances, rules, orders and requirements of the federal, state ... or [local] governments directly or indirectly causes the firefighter's injury or death during the discharge of his or her duties.”
***
Additionally, Defendants argue that debris is not considered ‘material piles’ under Industrial Code § 23-2.1(a)(1).
Conversely, Plaintiff asserts that his testimony clearly demonstrates that he was injured as a result of materials and debris. Specifically, Plaintiff stated ‘I had to climb over and step on concrete forms of all different shapes and sizes, buckets, cut pieces of plywood, bits of construction, concrete and the dirt that was hardened from you know, deep boot footprints and that's when the ground was just moving under me’ (NYSCEF Doc. No. 188 at 65:3-11). Plaintiff further testified that he was in an area filled with debris and construction material….”
Lesson learned: The firefighter is covered by worker’s comp. and may be able to obtain damages if he can prove a violation of the N.Y. Industrial Code.
Chap. 2 – Line Of Duty Death / Safety
NY: FDNY – FIRE 2011 / CAN’T SUE LACK TRAINING ON TIC
On Oct. 15, 2025, in James Gersbeck v. Robert Wiedmann, Jr., et al., Haldane Rodgers, et al., defendants, City of New York, respondent, the Supreme Court of New York, Second Department held (5 to 0) that lawsuit was properly dismissed. He was injured in a fire in December 2011. In February 2013, the injured plaintiff and Catherine Wiedmann, commenced this action against the City. In March 2012, he filed a notice of claim with the City of New York alleging that the City was negligent in training on use of thermal imaging camera (TIC). A hearing was held, and an investigation by the FDNY was conducted. His theory of liability that the defendant failed to properly follow an FDNY internal training bulletin regarding the use of thermal imaging cameras— does not fall within the scope of General Municipal Law § 205-a. https://law.justia.com/cases/new-york/appellate-division-second-department/2025/2024-09583.html
THE COURT HELD:
“Contrary to the plaintiffs' contention, the court properly determined that their notice of claim was insufficient to enable the City to investigate, collect evidence, and evaluate the merits of the plaintiffs' allegations regarding negligent training in violation of General Municipal Law § 205-a.
***
Here, the plaintiffs' notice of claim failed to set forth any negligent training allegations that could later form the basis of their cause of action alleging a violation of General Municipal Law § 205-a.
***
‘General Municipal Law § 205-a establishes the right of an injured firefighter to recover against any party whose neglect or omission to comply with governmental requirements results directly or indirectly in the firefighter's injury’ (Annunziata v City of New York, 175 AD3d 438, 442 [internal quotation marks omitted]; see Shea v New York City Economic Dev. Corp., 161 AD3d 803, 805). ‘A plaintiff seeking recovery under General Municipal Law § 205-a must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter’ (Annunziata v City of New York, 175 AD3d at 442 [alteration and internal quotation marks omitted]; see Shea v New York City Economic Dev. Corp., 161 AD3d at 805).”
Lesson learned: The NY law allowing injured firefighter and police to sue third parties requires proof of violation of regulations.
Note: Read the statute: New York Consolidated Laws, General Municipal Law - GMU § 205-a. Additional right of action to certain injured or representatives of certain deceased firefighters
“In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any fire department injured, or whose life may be lost while in the discharge or performance at any time or place of any duty imposed by the fire commissioner, fire chief or other superior officer of the fire department, or to pay to the wife and children, or to pay to the parents, or to pay to the brothers and sisters, being the surviving heirs-at-law of any deceased person thus having lost his life, a sum of money, in case of injury to person, not less than ten thousand dollars, and in case of death not less than forty thousand dollars, such liability to be determined and such sums recovered in an action to be instituted by any person injured or the family or relatives of any person killed as aforesaid.”
Chap. 3 – Homeland Security, incl. Active Shooter, Cybersecurity, Immigration
IL: NAT. GUARD – CHICAGO - 7th CIR. TEMP INJUNCTION
On Oct. 16, 2025, in State of Illinois and City of Chicago v. Donald J. Trump, et al., the U.S. Court of Appeals for 7th Circuit (Chicago) held (3 to 0) that temporary injunction by U.S. District Court Judge April M. Perry, enjoining the administration from federalizing and deploying the Guard within Illinois, will remain in place while the administration appeals. On September 8, 2025, the Trump administration announced “Operation Midway Blitz” - Illinois state officials opposed the deployment of the National Guard. The same day, the National Guard Bureau notified the Adjutant General of the Illinois National Guard that the President had authorized the mobilization of at least 300 members of the Illinois National Guard and directed that Illinois mobilize the Guard under 32 U.S.C. § 502(f) within 2 hours, or the Secretary of Defense would do so under Title 10. On October 6, 2025, plaintiffs—the State of Illinois and the City of Chicago—filed this lawsuit, arguing that the Trump administration’s orders federalizing National Guard troops in Illinois under 10 U.S.C. § 12406 were unlawful. https://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2025/D10-16/C:25-2798:J:PerCuriam:aut:T:op:N:3439487:S:0
THE COURT HELD:
“Plaintiffs argued that there is no rebellion or danger of rebellion in Illinois nor is the President unable with the regular forces to execute the laws of the United States [10 USC 12406]. They further contended that the federalization orders violate the Posse Comitatus Act, 18 U.S.C. § 1385, and the Tenth Amendment. Plaintiffs sought emergency injunctive relief preventing the Trump administration from federalizing and deploying National Guard troops in Illinois.
***
After holding a hearing and assessing the preliminary record, the [district court on Oct. 9, 2025] granted in part plaintiffs’ request for a temporary restraining order and enjoined the federalization and deployment of the National Guard for 14 days.
***
The Trump administration promptly appealed. It also moved for a stay pending appeal and for an emergency administrative stay. We granted the motion for an administrative stay in part, allowing the Guard members in Illinois to remain under federal control but blocking their deployment while we considered the motion for a stay.
***
We continue to STAY the district court’s October 9, 2025, order only to the extent it enjoined the federalization of the National Guard within the state. The administration remains barred from deploying the National Guard of the United States within Illinois.”
Lesson learned: Litigation over President’s authority to deploy National Guard where there is no “rebellion” will probably be finally settled by U.S. Supreme Court.
See Oct. 16, 2025 article: Appeals Court Upholds Federal Judge’s Temporary Order Blocking National Guard Deployment in Chicago Area
See the Portland, Oregon Oct. 4, 2025 temporary restraining order: https://www.portland.gov/federal/documents/10-4-2025-state-city-v-trump-temporary-restraining-order-granted/download
9th Circuit Oct. 30, 2025 stay: https://cdn.ca9.uscourts.gov/datastore/opinions/2025/10/30/25-6268.pdf
Chap. 5 – Emergency Vehicle Operations
LA: DRUNK HITS ENGINE – FD GETS VALUE / PLUS $50,000
On Oct. 29, 2025, in Lafayette City-Parish Consolidated Government v. Tripple T Enterprises, Inc., and Nathan Allen Martin, the Court of Appeal of Louisiana, Third Circuit held (3 to 0) that the trial court judge, after a bench trial, properly awarded “exemplary” (punitive) damages of $50,000 for destruction of the Lafayette Fire Department’s 1994 Pierce engine, plus its cash value ($12,500) and loss of use damages while awaiting for new engine ($131,175). Punitive damages were proper even though the plaintiff government suffered no physical or mental injuries; under LA, “injuries” include destruction or loss of use of property. https://cases.justia.com/louisiana/third-circuit-court-of-appeal/2025-ca-0025-0267.pdf?ts=1761751417
THE COURT HELD:
“Nathan Allen Martin was driving an 18-wheeler for his employer, Triple T,
while intoxicated and using an electronic device. Martin was hauling a fully loaded flat-bed trailer. Meanwhile, a nearby Lafayette Fire Department firetruck was responding to a major automobile crash. The firetruck stopped on an overpass with its emergency lights activated. Martin proceeded to crash head-on into the firetruck. A firefighter was injured from jumping off the overpass to avoid being struck by Martin. His claims were settled. The firetruck was a total loss.
At the scene of the wreck, responding officers witnessed Martin slurring his
words and displaying a lack of balance. He smelled of alcohol. The officers
discovered an open whiskey bottle on the ground near the 18-wheeler, and an opened beer can with condensation inside the cab of the vehicle. Martin’s blood alcohol test showed a level of 0.11 percent, well over the 0.04 percent limit for operators of commercial motor carriers under the Federal Motor Carrier Act.
The firetruck was a 1994 Pierce pumper truck used as a spare pumper truck
for the fire department’s fleet if other trucks went offline. Employees of the fire
department and city testified that although the cost of rental for a similar truck would have been $275 per day, the department was unwilling to accept the risk associated with leasing or buying a used replacement vehicle.
***
Louisiana Civil Code Article 2315.4 states, in pertinent part:
exemplary damages may be awarded upon proof that the injuries on
which the action is based were caused by a wanton or reckless disregard
for the rights and safety of others by a defendant whose intoxication
while operating a motor vehicle was a cause in fact of the resulting
injuries.
***
The defendants claim that ‘injuries’ are limited to physical and mental injuries and are unavailable in a case with only property and loss of use damages…. We adopt the reasoning of the fourth circuit that the term ‘injuries’ is sufficiently broad to include damages from the destruction or loss of use of property.
***
The trial court has much discretion in fixing the amount of an exemplary
damage award…. Martin’s conduct was particularly egregious in this case. Not only was he operating a vehicle while over the legal blood alcohol limit, but his vehicle was a loaded 18-wheeler. Its size and weight presented a greater threat than most vehicles. Martin was also on an electronic device. Considering all of this, we cannot say that the trial court’s award for exemplary damages was abusively high in this case.”
Lesson learned: Punitive damages are designed to punish drunk drivers for “wanton or reckless disregard for the rights and safety of others.”
Chap. 5 – Emergency Vehicle Operations
VA: RESCUE 1 – DISP: NO EMER - RED LIGHT - $500,000
On Oct. 21, 2025 in James Lee v. Jason Carr the Court of Appeals of Virginia held (2 to 1; unpublished decision) the Court remanded the case for a new trial limited to the amount of damages; the finding of “gross negligence” by first jury remains against driver of Recue 1, City of Newport News. The trial court judge after jury verdict and award of $500,000, set aside the finding of “gross negligence” and the punitive damages. Rescue 1 was responding to a motor vehicle accident in a tunnel, but Dispatch advised that “the vehicles had been cleared in the tunnel and there was no longer an emergency situation.” Firefighter Carr heard the dispatch, slowed down, but continued with lights and siren. He entered the intersection westbound unable to determine whether he had a red light because of the sun, and his view of southbound traffic was obstructed by a house. On board Captain did not order Carr to go non-emergency. City may appeal to Virginia Supreme Court – see dissenting opinion. https://cases.justia.com/virginia/court-of-appeals-unpublished/2025-0990-24-1.pdf?ts=1761062926
THE COURT HELD:
“This case arises from a motor vehicle accident at the traffic light-controlled intersection of 16th Street and Ivy Avenue in the City of Newport News. At the time of the accident, Carr was driving a fire department rescue truck (Rescue 1) westbound on 16th Street toward the scene of a motor vehicle accident in the Monitor-Merrimac Bridge-Tunnel. As he approached the intersection, Carr’s view of southbound traffic on Ivy Avenue was obstructed by a house. Unable to determine whether he had a red light because of the sun, Carr drove Rescue 1 into the intersection and collided with Lee’s vehicle, which had been traveling southbound on Ivy Avenue.
***
At trial, Lee played a silent video recording of the accident. Police officer Brandon Holden went to the scene of the accident and testified that the posted speed limit in that area was 25 miles per hour. Based on his review of the video recording and his own measurements, Officer Holden estimated that Rescue 1 travelled 110 feet in about 1.9 seconds (approximately 39 miles per hour) before braking in the intersection crosswalk.
***
Carr admitted that he told ‘the police officer’ that ‘the only reason’ he would have gone to the tunnel ‘was if people [were] in the tunnel.’ He acknowledged that he had been informed before the accident that ‘the vehicles were no longer in the tunnel,’ so he expected to ‘get turn[ed] around.’ Footnote 5:
Carr testified that he had to respond to the scene of the tunnel accident until someone from the police or fire department arrived at the scene and confirmed that there was ‘nothing wrong.’ According to Carr, Rescue 1’s tools may have been necessary even if the vehicles had been moved out of the tunnel.
***
The question of whether Carr exercised any care was a factual one for the jury and credible evidence supports its verdict. In best light to Lee, Carr sped the 54,000 pound firetruck into an intersection without even knowing whether the light was red or green—or whether any vehicle was in its path. According to Lee, there was no siren—and the video supports the jury’s view that there was no effort to brake upon entering the intersection (or at any meaningful time before imminent contact). The trial court erred by usurping the jury’s judgment because the evidence failed to conclusively establish that Carr took any care to prevent Lee’s accident. In short, the trial court relied on its findings of fact rather than the findings of fact made by the jury. In doing so, it erred. Accordingly, we reinstate the jury’s verdict on liability…. As explained below, however, we must still vacate the jury’s award of damages and remand for a new trial on that issue.”
DISSENT (Judge Mary Janipher Malveaux)
“But as the majority correctly recognizes, the evidence that Carr had activated
Rescue 1’s lights was uncontroverted. And in Virginia, uncontroverted evidence that Carr exercised ‘some degree of care’ is adequate to defeat Lee’s gross negligence claim.”
Lesson learned: When dispatch advises - “the vehicles had been cleared in the tunnel and there was no longer an emergency situation” – only proceed non-emergency.
Chap. 6 – Employment Litigation, incl. Work Comp., Age Discrim., Vet Rights
AZ: BRAIN CANCER – WORK COMP - CANCER IN GENERAL
On Oct. 31, 2025, in Robert Vande Krol v. The Industrial Commission of Arizona, et al., the Court of Appeals of Arizona, First Division held (3 to 1, unpublished opinion) that the medically retired firefighter from Superstition Fire Department was entitled to workers comp. by showing that carcinogens to which he was exposed could lead to brain cancer in general – no need to prove cause his specific type of cancer (oligodendroglioma,). In August 2000 as part of annual physical, a tumor was located in brain of this 18-year firefighter. In October 2020, Vande Krol underwent brain surgery (a right craniotomy), which successfully removed the tumor. Thereafter, he was diagnosed with oligodendroglioma, a rare form of brain cancer. After surgery, Vande Krol lost peripheral vision in his left eye, and he now suffers cognitive impairment, vertigo, headaches, and muscle weakness, and was required to take medical retirement. https://public.fastcase.com/jaEE2PXzRXmZ99jOLMt1IiCZZZpteOfluZOkYG3wMviTSniVMo5h4kc4WRTpe6V8Jg8IM7MTKJ5SfgRKhZGl2tVI6P4U%2BnkSaEwO2dzM8Rk%3D?utm_medium=email&_hsenc=p2ANqtz--UPexxOwqhUZNftyKJhb3R-qXmsyD2qvqkoufxMeh6uEfEbZVRIKhd7hzivD-PUaEhi0YeikRdDbC9teuqS6ORoDRaLQ&_hsmi=226712652&utm_content=226712652&utm_source=hs_email
THE COURT HELD:
“Vande Krol filed a workers' compensation claim with Superstition's insurer, Benchmark Insurance Company ("Benchmark"), stating that his brain cancer was a covered occupational disease. Benchmark denied the claim, so Vande Krol requested a hearing before an ALJ.
***
At the hearing, the ALJ [Administrative Law Judge] heard testimony from Vande Krol and two medical experts. Dr. Smith, a former firefighter and current physician, testified for Vande Krol. He opined that the ‘probable cause’ of Vande Krol's brain cancer was a combination of exposure to (1) the byproducts of combustion from fires, (2) firefighting foam, (3) diesel fumes, and (4) radiation emitted from the cell tower near his fire station.
Dr. Peter Ferrara, a surgical oncologist, testified for Superstition and Benchmark (together, "Respondents"). Dr. Ferrara testified that the only ‘definite caus[e] of brain cancers is ionizing radiation,’ and there was no evidence of such exposure. Dr. Ferrara said he could not opine to a ‘reasonable degree of medical probability’ that Vande Krol's exposure to any carcinogens commonly associated with firefighting were related to his ‘type of brain cancer.’
***
The ALJ determined Vande Krol satisfied the requirements of A.R.S. § 23-901.01(C), save for one. Based on the ALJ's interpretation of A.R.S. § 23-901.01(C)(3), she concluded Vande Krol failed to prove that his exposure to a specific carcinogen caused his specific type of brain cancer (oligodendroglioma). And, because Vande Krol had not made that showing, the ALJ concluded Vande Krol had not suffered a compensable injury entitling him to compensation.
***
Beginning in 2001, Arizona joined a growing number of states to enact a statutory presumption easing causation for firefighters with certain cancers. See A.R.S. §§ 23-901.01(B)-(E) (2001); 2001 Ariz. Sess. Laws ch. 192, § 1 (1st Reg. Sess.)… Applying our interpretation, Vande Krol's claim is subject to the presumption in (B)(1) because (everyone agrees) he had brain cancer. Under (C)(3), Vande Krol had to prove that a carcinogen or carcinogens to which he was exposed is reasonably related to the type of cancer making him eligible under (B)(1)-namely, brain cancer. He was not required to show that the carcinogens are reasonably related to some specific type, or subset, of brain cancer, like oligodendroglioma.
***
We conclude that, under (C)(3), a firefighter need not show that his exposure to a carcinogen is reasonably related to his specific type of brain cancer. Instead, he must show that a carcinogen to which he was exposed is reasonably related to brain cancer generally.”
Lesson learned: Great decision, after a lengthy legal battle – Jan. 2021 claim; appeal to Court of Appeals, then to Arizona Supreme Court, and remand to Court of Appeals.
Note: On March 26, 2025 the Arizona Supreme Court (6 to 1): We hold that the 2017 statute applies to Vande Krol’s workers’ compensation claim. We vacate the court of appeals’ opinion. Because the court of appeals concluded that the 2021 statute applied, it did “not address whether the ALJ correctly interpreted the 2017 statute.” https://cases.justia.com/arizona/supreme-court/2025-cv-23-0211-pr.pdf?ts=1743008459
Then, in 2021, the legislature relaxed the burden on firefighters to establish the statutory presumption and also heightened the evidentiary standard for an employer seeking to rebut the presumption. A.R.S. § 23-901.09 (2021) (effective Sept. 29, 2021) (“2021 statute”); 2021 Ariz. Sess. Laws ch. 229, §§ 5–6 (1st Reg. Sess.).
See March 26, 2025 article: “Arizona Supreme Court rules in favor of firefighter in compensation claim.” https://www.kvoa.com/news/arizona/arizona-supreme-court-rules-in-favor-of-firefighter-in-compensation-claim/article_63a696b0-5894-4bcc-94e3-966091411b00.html
Chap. 6 – Employment Litigation, incl. Work Comp., Age Discrim., Vet Rights
WV: WRIST INJURY – THERAPIST WROTE “PRIOR ISSUES”
On Oct. 24, 2025, in City of Wheeling v. David Gilbert, the West Virginia Intermediate Court of Appeals held (3 to 0) that the Workers’ Compensation Board of Review properly overruled the Claim Administrator, and will cover surgery for right wrist (Dec. 1, 2023 injury; X-Ray no broken bone and normal MRI; but June 3, 2024 arthroscopy revealed complete tear of ligament). The Independent Medical Examiner physician focused on notes by physical therapist that firefighter had prior issues with that right wrist. The Board, however, relied on firefighter’s deposition testimony that he told the therapist he had prior issues with his left wrist, and the therapist mistakenly recorded prior issues with right wrist. https://cases.justia.com/west-virginia/intermediate-court-of-appeals/2025-25-ica-138.pdf?ts=1761335525
THE COURT HELD:
“Mr. Gilbert was deposed on November 11, 2024, and testified that he injured his right wrist on December 1, 2023, when he tripped while getting into a vehicle and attempted to catch himself. Mr. Gilbert stated that he hooked his thumb on the headrest of the stretcher, which injured his wrist…. He stated that he might have mentioned that he
had some prior issues with his left wrist, such as when he was rock climbing that required him to adjust his left wrist to use it functionally. Regarding the physical therapy note dated December 13, 2023, which reported that he had some joint instability in his right wrist prior to the compensable injury, Mr. Gilbert testified that he believed that note was based upon a miscommunication. Mr. Gilbert further testified that he was describing an issue with his left wrist and trying to say that he never had any issues with his right wrist.
***
Here, the Board found that Mr. Gilbert established with medical evidence that
scapholunate instability of the right wrist and ligament tear of the scapholunate right wrist are causally related to the compensable injury. The Board further found that Mr. Gilbert’s testimony regarding the inconsistency in the occupational therapy records was credible.”
Lesson learned: When speaking with physical therapist be very clear in discussing prior injuries.
Chap. 6 – Employment Litigation, incl. Work Comp., Age Discrim., Vet Rights
RI: FF CANCER DEATH – ADDED INSURANCE IF “INJURY”
On October 14, 2025, in James L. Varin, Jr. and Tyer C. Varin v. The Prudential Insurance Company of America, Chief Judge John J. McConnell, Jr., United States District Court for the District of Rhode Island denied the insurance company’s motion to dismiss the lawsuit by two sons of deceased firefighter James Varin, Sr., a Providence firefighter who died of brain cancer. The family seeks a declaratory judgment that father’s death should be covered as an “injury” while insurance company claims it is a “sickness” not covered. Under the terms of the policy, a City of Providence fire department employee has $100,000 in basic life insurance coverage (which was paid to the family), and also $100,000 in basic accidental death and dismemberment (“AD&D”) insurance coverage. Plaintiffs will now proceed with pre-trial discovery; the Court held that the insurance company presumably knew when negotiating the policy with the city that Rhode Island has a “statutory presumption” for firefighter cancer, and IAFF Local 799 has a similar provision in their Collective Bargaining Agreement with the city. https://ecf.rid.uscourts.gov/cgi-bin/show_public_doc?2025cv0270-20
THE COURT HELD:
In their complaint, Plaintiffs allege that Mr. Varin’s cause of death was glioblastoma, a cancer that could be caused by carcinogenic exposure…. They also allege that Mr. Varin was exposed to carcinogens in his job as a firefighter and that his employer, the City of Providence, considers his death to be an injury in the line of duty…. Plaintiffs cite to the CBA, which states that whenever a firefighter dies from cancer, it is presumed to be an injury resulting from their firefighting duties…. In addition, they reference a state statute,
R.I. Gen. Laws § 45-19.1-1, which also states that firefighters are exposed to carcinogens, so cancer is a recognized occupational hazard under Rhode Island law…. At this stage of the litigation, the Court finds that these allegations are sufficient to state a claim under the policy.
***
It is plausible that Prudential knew what benefits the Union expected to provide its members because the CBA states that members have a $100,000 life insurance policy with a maximum of $200,000 for deaths sustained in the line of duty, and that is exactly
what the Prudential policy at issue here provides. ECF No. 1 ¶ 12; 7-2 at 9.
***
As for the sickness exception, Prudential argues that it applies because cancer is generally recognized as a sickness not an injury…. The policy provides that a loss is not covered if it results from sickness, which is defined as ‘Any disorder of the body or mind of a Covered Person, but not an Injury.’ … If discovery proves that Plaintiffs’ claims are covered because the Prudential policy was negotiated to cover cancer as an on-the-job injury, then their father’s cancer would be an ‘injury’ not a ‘sickness’ as defined in the policy. Therefore, the Court finds that the complaint states a claim for declaratory relief.”
Lesson learned: When City is contracting with insurance policy for firefighters, there should be a clause in the policy specifically covering firefighter cancers.
Chap. 7 – Sexual Harassment, incl. Pregnancy Discrimination, Gay Rights
MT: EMT - NOT RETALIATION - NARCAN TRAINING BY MD
On Oct. 7, 2025, in Daniela Vaccaro v. Three Forks Area Ambulance Service, the Supreme Court of Montana held (5 to 0; unpublished opinion) that District Court judge properly affirmed the Human Rights Commission investigators findings of no retaliation with her two complaints of retaliation. The Plaintiff became a volunteer EMT in Feb. 2021, but was terminated in June, 2021 (court did not describe reason). She filed a claim of “marital status discrimination” (her husband is on 5-member Board) with the Human Rights Commission and the Ambulance Service agreed to a “no fault” settlement and returned her to duty. In the first Board meeting upon her return, she offered to teach a Narcan class, but instead the Board retained services of a well-known physician. She filed a complaint of retaliation with the Commission. When she returned from vacation, she was asked to pass a skills test on Narcan and filed another complaint with the Commission. https://cases.justia.com/montana/supreme-court/2025-da-24-0672.pdf?ts=1759872027
THE COURT HELD:
“Upon review of the administrative record, we agree with the District Court that the
investigations into Vaccaro’s complaints were comprehensively conducted, an apparent
effort to leave no stone unturned to review her allegations.
***
Turning to the evidence, the investigator found that, although a formal process was not conducted for selection of a trainer, the evidence showed that ‘Dr. Andrews, a trainer well known to TFAAS, offered extensive medical experience and hands on administration of Narcan in emergencies. In contrast, Vaccaro offered limited EMT experience and no experience administering Narcan outside of a classroom setting.’
***
Shortly thereafter, Vaccaro filed the second discrimination by retaliation claim [July, 2022], which was given claim number HRB Case No. 0230107 and assigned to a different investigator. Vaccaro alleged that the Board had required her to complete a skills test [August 2022]… Assessing the evidence, the investigator found that Vaccaro was not the only EMT who was asked to perform a skills test for administration of Narcan, and that other EMTs had completed the test.”
Lesson learned: The Ambulance company provided HR Commission investigators with legitimate business reasons for its decisions.
Chap. 8 – Race / National Origin Discrimination
CA: CAPT PROMOTION – PAPERWORK ERROR / NOT RACE
On Oct. 21, 2025, in Christopher Davis v. County of Los Angeles, the California Court of Appeals, Second District, Second Division held (3 to 0) that trial court granted summary judgment to the County. He was not promoted to Captain in 2018; his Captain (also African-American) prepared a memo updating plaintiff’s work activities (7 “Emergency Action Plan” activities, instead of 2) but memo never made it into FF’s personnel file. Six other candidates had similar issues with lack of records in their personnel file. He was promoted in 2021 with corrected paperwork in his file. https://www4.courts.ca.gov/opinions/nonpub/B332575.PDF
THE COURT HELD:
“First, there is no evidence the fire department—led by an African-American fire chief—harbored discriminatory intent. Davis’s direct supervisor, Captain Williams, is African-American. Eleven African-Americans applied for a captainship, and 10 of them were promoted. Davis himself was promoted to captain the next year when he reapplied using improved paperwork.
***
Davis’s description of events in his brief shows his promotion was delayed by administrative error. He writes that his supervisor, Captain Williams, ‘originally failed to include a list of [Davis’s] EAP’s in Davis’ Performance Evaluation.’ Davis does not claim Williams, who is African-American, was motivated by racism. Davis further writes that Williams agreed to amend the evaluation, and ‘was expected to send the amended page to the appropriate person or department such that the Performance Evaluation could be officially amended and an amended copy placed in Davis’ personnel file. . . . While Williams intended to send the amendment page of the performance evaluation up through channels, Davis later discovered his performance evaluation that should have contained the amendment was not back in his personnel file. He surmises, ‘it is highly likely that the amended performance evaluation got lost in the chain.’
***
County offered evidence that six candidates of various races (Latino, White, and Filipino) were denied points for insufficiently documented work activities; Davis was not treated differently.”
Lesson learned: The County proved that there was a paperwork issue, similar to six other candidates, not race.
Chap. 8 – Race / National Origin Discrimination
LA: NOT RACE – COMPETENCY EXAM PRE-PLANS JOB REQ.
On Oct. 17, 2025, in Felicia Scroggins v. City of Shreveport, the U.S. Court of Appeals for 5th Circuit (New Orleans) upheld (3 to 0) the dismissal of her race and sex discrimination lawsuit. In her pro se appeal brief “of the ten cases Scroggins cites, four appear to be fake.” The fire department conducted a competency exam for personnel seeking to join the pre-plan review unit; she didn’t even take the exam for the second bid process. Court held that the U.S. District Court judge granted summary judgment to the city, and “explained that she had failed to ‘produce[] . . . competent summary judgment evidence’ of pretext necessary to survive summary judgment on any theory of retaliation… She points us to no part of the record showing otherwise and has accordingly forfeited her challenge.” Scroggins ceased employment with the SFD in January 2023.
THE DISTRICT COURT HOLDING:
On Nov. 13, 2024, United States District Court Judge S. Maurica Hicks, Jr. granted summary judgment to the City. https://www.casemine.com/judgement/us/6736ce6c5891a561b0d805aa
“In his sworn declaration, Chief Scott Wolverton (‘Chief Wolverton’) stated:
After I became Chief in February 2015, I decided to implement a competency test on pre-plans for all SFD personnel bidding for as assignment at Station 22. I did so to ensure that Station 22 would be staffed by individuals that were the most knowledgeable on pre-plans, because they are vitally important to the SFD's mission and operations.
***
On August 10, 2015, Deputy Chief Jones issued an Inter-Office Memorandum to all SFD personnel advising that all personnel - regardless of rank - bidding for a position at Station 22 would be required to complete a competency test to ensure they have the necessary skills for the assignment….The competency test was administered between September 10-16, 2015…. Scroggins admits that she “chose not to even begin the test.”
Lesson learned: Competency exam is excellent way to fill a pre-plan review position.
Chap. 13 – EMS, incl. Community Paramedicine, COVID-19
GA: PULSE OX MONITOR – NOT IN PCR – JURY / NO LIAB
On October 30, 2025, in Wright v. Metro Ambulance Services, Inc., the Court of Appeals of Georgia held (3 to 0) that jury verdict for defense is affirmed. The lawsuit was brought by Dr. Joray Wright, as survivor and administrator of the Estate of Vanessa Banks. Plaintiffs’ expert, cardiologist Dr. Brian Swirsky, testified by videotaped deposition that a patient’s oxygen saturation is a vital sign that must be taken by a pulse oximeter, and there was no such reading recorded as having been taken by Kern in Banks’s patient care record. The cardiologist testified that Kern may have “fabricated” the 99% oxygen saturation level he reported to the hospital when requesting to administer a morphine 20 minutes from the hospital. Defense expert, cardiologist Dr. Charles Wilmer, testified in person to the jury that paramedic continued speaking with patient during transport until she suddenly experienced respiratory depression leading to a fatal cardiac arrhythmia (VFIB). The Court of Appeals rejected plaintiff’s argument that trial court abused its discretion by excluding the in-person testimony of their cardiologist (his videotaped testimony was shown to the jury) as a rebuttal witness after the defense cardiologist testified in person. https://cases.justia.com/georgia/court-of-appeals/2025-a25a1173.pdf?ts=1761847932
THE COURT HELD:
“The more prudent course in this case would have been for the trial court to allow Dr. Swirsky to testify in rebuttal to Dr. Wilmer’s theory regarding the GCS. Nevertheless, our de novo review of the full record does not evidence harm as a result of the trial court’s refusal to allow Swirsky’s testimony.
***
[T]he evidence showed that after the death of his mother, 63-year-old Vanessa Banks, Wright filed the instant wrongful death action against Metro on a theory of vicarious liability based on the negligence of its paramedic, Michael Kern. Testimony at trial showed that in the early morning hours of April 15, 2019, Banks was pushed from a second story window onto vegetation below. She survived the fall, and Metro’s ambulance arrived at 12:33 a.m. Banks was alert and oriented at the time of transport but complained of ten out of ten pain in her left side and abdomen.
Kern and technician Chayce Burton placed Banks on a backboard and collar to protect her spine. Kern testified that he took a baseline blood oxygen level with a handheld pulse oximeter prior to leaving the scene with Banks, and based on his observations of her, he did not consider her unstable. The ambulance left the scene around 12:45 a.m., and Kern treated Banks therein, attaching a four-line cardiac monitor and establishing an IV. Kern did not place a pulse oximeter to measure blood oxygen saturation during the trip.
About 20 minutes away from the destination hospital, Kern sought approval from a doctor to give Banks morphine. Kern reported that Banks had a history of diabetes; was conscious, alert, and oriented with a Glasgow Coma Score (“GCS”) of 15; had pain in her lower lumbar and upper back; was tender on palpation; had a pulse rate of 88, normal sinus heart rhythm on the monitor, blood pressure of 150/90, and oxygen saturation of 99 percent on room air; and her breath was fast and shallow, which he scored at a 30 respiration rate. Instead of morphine, the doctor instructed Kern to administer 50 micrograms of fentanyl, which Kern gave Banks intravenously at 12:48 a.m. Kern testified the fentanyl did not reduce Banks’s pain, and she was alert and speaking after he administered it. The monitor recorded Banks’s heart rate approximately six times (12:42, 12:46, 12:51, 12:52, 12:56, and 1:02), and it recorded her blood pressure and mean arterial pressure three times (12:42, 12:52, and 1:02). Kern noted Banks’s respiratory rate, depth, and effort over the course of the ride.
Around 1:06 a.m., Kern testified that they were about two minutes away from the hospital when Banks gasped, turned her head to the side, and became flushed and purple. Her breathing was agonal, she had no palpable pulse, and the heart monitor indicated that she was in ventricular fibrillation (“VFIB”). Kern started cardiopulmonary resuscitation (“CPR”), and after parking the ambulance (about two minutes after CPR began), Burton came back to assist in order for Kern to attempt to defibrillate Banks. Hospital personal from the ambulance bay joined the effort to resuscitate Banks, performing bag-assisted ventilation while Kern administered intravenous amiodarone, an antiarrhythmic medication, at 1:10 a.m. Metro’s crew turned care of Banks over to the hospital by 1:15 a.m. At 1:19 a.m., Banks was pronounced dead from what the medical examiner later determined to be ‘acute cardiac dysrhythmia complicating fall from height.’”
Lesson learned: Avoid litigation, use pulse ox monitor during transport and record that in patient care report.
Chap. 13 – EMS, incl. Community Paramedicine, COVID-19
PA: PT ARREST METH - PUNCHED MEDIC IN AMBULANCE
On October 25, 2025, in Commonwealth of Pennsylvania v. Roger Dean Hornberger, the Superior Court of Pennsylvania held (3 to 0; non-precedential decision) that defendant’s conviction for assaulting the paramedic and sentence of 21-42 months in prison must be set aside for a new trial. Defendant pro se - represented himself at trial (trial court did appoint a “standby attorney” during the trial) but prior to selection of a jury the trial court judge did review with him each charge and possible sentences if convicted. https://www.pacourts.us/assets/opinions/Superior/out/J-A19045-25m%20-%20106549181332513446.pdf?cb=1
THE COURT HELD:
“This matter arises from a domestic violence call on September 3, 2023. Trooper John Ryan Herold of the Pennsylvania State Police responded to Appellant’s house, where he and other troopers discovered that Appellant had fallen or jumped from the second story window. Upon contact with Appellant outside, Trooper Herold saw that he was holding a red container filled with a white powdery substance, later identified as methamphetamine. Instead of immediately detaining Appellant and placing him in a cruiser, the troopers called an ambulance to transport him to the hospital based on a complaint of back pain.
He was strapped to a stretcher in the back of the ambulance and fell asleep. Once in motion, Tracy Finnefrach, a paramedic, began her diagnostics as Appellant awoke from his slumber. He suddenly broke free of his restraints, jumped up from the stretcher, and claimed that Ms. Finnefrach was trying to kill him. He eventually punched her once in the forehead and again in the jaw. The ambulance driver, Jayden Cornman, observed Appellant attacking Ms. Finnefrach. He tried to pull the vehicle over, but Appellant reached through the partition window and pulled on the collar of Mr. Cornman’s shirt,
restricting his breathing. Once the driver finally stopped the vehicle, Appellant jumped through the divider opening and exited the driver’s side door. Troopers arrived shortly thereafter and transported him to the hospital in a patrol car.
***
Based on the aforementioned events, Appellant was charged with two counts of recklessly endangering another person, and one count each of aggravated assault, simple assault, resisting arrest, possession/use of drug paraphernalia, and possession of a controlled substance. Appellant neglected to appear at the pretrial conference. Consequently, the court issued a bench warrant and Appellant was arrested.
***
The court failed to list the specific crimes, explain the nature of the charges, and identify the elements that constitute those offenses. We appreciate the Commonwealth’s effort to supplement the court’s colloquy by reiterating the name of the assault- and drug-related charges brought against Appellant. However, the Commonwealth also neglected to articulate the nature of those crimes or the elements thereof…. Additionally, the court omitted from the colloquy the ‘permissible range of sentences and/or fines for the offenses charged[.]’ See Pa.R.Crim.P. J-A19045-25.”
Lesson learned: Helpful to have PD ride in the ambulance when transporting patient they arrested.
Chap. 13 – EMS, incl. Community Paramedicine, COVID-19
KS: EMS WELFARE CHECK – ARREST WARRANT / SET ASIDE
On Oct. 24, 2025, in State of Kansas v. Nicole Willard, the Court of Appeals of Kansas held (2 to 1; unpublished decision) that the warrant check by police, after EMS vitals were checked, was a violation of 4th Amendment, and her conviction for possession of methamphetamine and drug paraphernalia, discovered at the jail, is reversed. https://searchdro.kscourts.gov/documents/pdf/caseDecisions/d2d9aca8-0558-406d-9148-9139f4e8d305_125812.pdf
THE COURT HELD:
“On May 13, 2021, Nicole Willard was the subject of a welfare check after a civilian reported that someone was unconscious under a bridge in Hutchinson, Kansas. Hutchinson Fire Department (HFD) firefighters initially responded, making contact with Willard and offering her aid, which she refused. A few minutes later, Sergeant Cole Long of the Hutchinson Police Department (HPD) arrived.
Less than three minutes after Long arrived on the scene, Captain Ian Arndt of the
Hutchinson Fire Department provided Willard's name to Long, and Long immediately stepped away, contacted dispatch, and requested a warrant check. Long learned that Willard was the subject of a warrant.
***
Thus, in Kansas, a welfare check cannot lawfully be extended by running a
warrant check without good reason. ‘Our caselaw makes it clear that police may not
lawfully extend a welfare check by running a warrant check on an individual who is the
subject of the check unless some other circumstances support prolonging the check and
converting it into a detention.’ 311 Kan. at 932.
***
This brings us to the third factor—once the officer is assured that the citizen is not
in peril or is no longer in need of assistance, any actions beyond that constitute a seizure, implicating the protections provided by the Fourth Amendment. Gonzales, 36 Kan. App. 2d at 456. Once Willard refused care, and Long and the firefighters decided her friend could come pick her up, it was clear that she was not in peril and no longer in need of assistance. It was at this point the encounter should have ended.”
DISSENT [Judge Kathryn A. Gardner]
“I would find that a seizure did not occur, so the Fourth Amendment to the United
States Constitution was not implicated. But even if a seizure did occur, all acts were
lawful. Officer Long's decision to run the warrant check was consistent with public safety
and did not unlawfully broaden or extend the scope of the encounter with Willard. Both
before and after the warrant check, Officer Long's contact with Willard was justified by
safety reasons based on objective, specific, and articulable facts. The majority's
contention that the justification dissipated when Willard said she did not want assistance
is unfounded.”
Lesson learned: Powerful dissent – “warrant check was consistent with public safety.”
Chap. 13 – EMS, incl. Community Paramedicine, COVID-19
MI: COVID PT NOT TRANS (2X) – REFUSALS CHALLENGED
On Oct. 23, 2025, in Daniel Wehner, Personal Representative of the Estate of Dale Wehner v. Tr-Hospital Emergency Medical Services Corporation, et al, the Court of Appeals of Michigan held (3 to 0) that lawsuit should be reinstated, since there is some evidence of “gross negligence” when EMS did not transport a COVID patient on two calls (Oct. 3, 2021 and Oct. 5, 2021). Whether Dale actually signed or initialed the refusal forms is in dispute; his name is badly misspelled on Oct. 3 report; and only initials were on the Oct. 5 report. https://www.michbar.org/Portals/0/opinions/appeals/2025/102325/84576.pdf
COURT HELD:
“Here, plaintiff alleges that defendants told Dale that he would be fine and that he should not go to the hospital because it was full. In contrast, each defendant [EMS] testified that Dale’s condition was so dire that it was imperative that he go to the hospital. In fact, they have consistently argued that Dale was advised of the risks of declining treatment, yet he voluntarily chose not to be transported to the hospital for further evaluation or treatment. In support, defendants [EMS] rely on their own testimony and the assertion that Dale, on October 3rd, purportedly signed his name in the signature box acknowledging that he was declining treatment and transport, and on October 5th, he purportedly placed his initials in the relevant signature box. Whether Dale actually signed or initialed the documents is in dispute. It is notable that Dale’s name is badly misspelled in the signature box of the Patient Care Report (PCR) generated for the October 3rd ambulance run (‘Sehren’ rather than ‘Wehner’), and only the initials ‘DW; were placed in the signature box relative to the October 5th run. *** Added to these discrepancies, Grace Warmbier, a trained document examiner, examined the signature and initials in the signature boxes acknowledging the refusal of treatment or transport. She compared those signatures to known handwriting samples and concluded that Dale did not sign the refusal of services. The foregoing evidence casts sufficient doubt on the assertion that Dale placed his signature and initials in the signature boxes acknowledging that the risks had been explained and he was nonetheless refusing services and transportation to the hospital. If Dale did not sign the acknowledgments, then this would be a particularly relevant piece of evidence.”
Lesson learned: If patient signature is misspelled, or initials unclear, ask spouse to co-sign.
Chap. 13 – EMS, incl. Community Paramedicine, COVID-19
NJ: PT TRIED JUMP AMBUL – STOPPED – NO LIAB / ANKLE
On Oct. 22, 2025, in Sandra Poling v. Atlantic Mobile Health, et al., the Superior Court of New Jersey, Appellate Division held (3 to 0) that trial court properly granted summary judgment to the ambulance company and two EMTs. The plaintiff claimed that EMT broke her ankle when preventing her from jumping out of a moving ambulance (MD testimony - doubtful he caused injury) and she provided no expert to testify that EMT acted inappropriately in retaining her by the ambulance side exert door. https://www.njcourts.gov/system/files/court-opinions/2025/a0275-24.pdf
THE COURT HELD:
“The trial court dismissed plaintiff's complaint determining plaintiff raised claims of professional negligence for injuries sustained during ambulance transport but failed to
provide expert proof regarding the standard of care or breach by defendant emergency responders. We affirm.
***
Although the precise movements utilized by [EMT] Vazquez to stabilize plaintiff were disputed, the critical material facts were not. Plaintiff was intoxicated, argumentative, and defiant of orders. She removed safety restraints, moved off the stretcher, and vaped all while the vehicle was moving on the roadway. This was a rapidly changing situation in which plaintiff's erratic conduct escalated and potentially threatened her safety. At the time plaintiff admittedly threatened to jump out of the moving ambulance, Vazquez, a licensed and trained emergency response professional, was faced ‘with a split-second decision,’ which implicated multiple complex factors and considerations. These included Vazquez's and Golightly's relevant prior training, applicable safety standards, plaintiff's unpredictable behavior and belligerence, her intoxication and unwillingness to comply with orders or maintain restraints for her own security, the EMTs' understanding of layout of the ambulance as it impacted the ability to control the situation to protect plaintiff from harm, and the options for most-safely subduing plaintiff and preventing her movement in light of all the failed attempts to gain her compliance.
***
Defendants also retained Paul A. Werfel, MS, NR-P, a professional paramedic and Assistant Professor of Clinical Emergency Medicine, as an expert on the standard of care for EMTs…. Professor Werfel recounted the details leading to the incident involving plaintiff. He noted that upon arrival, [EMT] Golightly and Vazquez encountered plaintiff accompanied by police and in a highly intoxicated state. Citing plaintiff's deposition, he found plaintiff became agitated, unbuckled the stretcher's straps, began vaping, became more upset as Vazquez attempted to calm her down, and ‘stated to EMT Vazquez 'you don't give a f[***] about me, I am jumping out of this ambulance.’
The expert opined defendants' conduct was ‘what one should expect from an ambulance crew and [wa]s well within the standard of care.’ He concluded Vazquez and Golightly ‘were faced with an intoxicated, and uncooperative patient [who] ultimately became verbally and physically abusive during transport.’ He determined that both Vazquez and Golightly were adequately trained and conducted themselves within the standard of care for EMTs throughout their interaction with plaintiff. Further, he found ‘Vazquez responded emergently to the fact that [plaintiff] created a very real threat to herself by attempting to open the door to the ambulance and jump out while the truck was moving’ and he ‘did very well to try and de-escalate the situation.’
***
Plaintiff neither presented an expert report nor attempted to depose defendants' expert. Thus, based on the record before it, the [trial] court properly dismissed plaintiff's claims.”
Lesson learned: The EMS run report thoroughly documented efforts to prevent the drunk and belligerent patient from jumping out of a moving ambulance.
Chap. 15 – Mental Health, incl. CISM, Peer Support, Pet Therapy
PA: PTSD – 2 INFANT CPR “ABNORMAL” –- GETS WORK COMP
On Oct. 22, 2025, in Brian Ganley v. Upper Darby Township (Workers Compensation Appeal Board), the Commonwealth Court of Pennsylvania held (3 to 0) that a career firefighter with 33 years’ experience should be awarded worker’s comp after performing two separate CPRs on infants within 16 months (Nov. 2018; May 2021). The Court reversed the Workers Comp Law Judge and the Appeal Board – holding that the two incidents met the requirement of “abnormal” event. https://www.pacourts.us/assets/opinions/Commonwealth/out/770CD24_10-22-25.pdf?cb=1
THE COURT HELD:
“Consequently, the [PA] Supreme Court held that claimants seeking benefits
for psychological injuries must meet a higher burden for causation by proving a
psychological injury is more than a subjective reaction to normal working
conditions, in other words, that the psychological injury was caused by ‘abnormal
working conditions.’
***
The reality of Claimant’s situation was that he performed CPR on and witnessed the deaths of two infant children within a 16-month period. It was the compounded effect of these two incidents that caused Claimant’s disabling PTSD. There can be little doubt that firefighters experience a high amount of stress in their jobs. Nonetheless, we must recognize that certain events, even in high-stress professions, may rise to the level of abnormal working conditions. Claimant did not simply witness death at a usual call involving a fire or a motor vehicle crash.
***
Claimant was actively involved in attempting to resuscitate two separate unresponsive babies and witnessing each of their deaths. We cannot agree that Claimant’s experience in this regard was a ‘normal’ or ‘expected’ consequence of being a firefighter. Indeed, in Claimant’s 20 years’ experience in firefighting service before the first event, Claimant had never before had to perform CPR on an infant. There is no evidence in the record that suggests firefighters in Upper Darby or even in Pennsylvania routinely or normally perform CPR on infant children or witness the deaths of infant children. Furthermore, it is noteworthy that of the three instances in which Employer called upon the county’s Critical Incident Stress [Management] Team between 2018 and 2022, two of those calls were in response to these two incidents involving Claimant and the infants. Id. at 251-52. Certainly, this highlights both the rarity of these events and the potential for substantial
psychological impact to the participants, which is further magnified by the fact that
the same person, Claimant, administered CPR on infants on each occasion.
***
During the first event, in November 2018, Claimant responded to a report of cardiac arrest for a two-week-old infant. Claimant performed CPR on the infant, assisted by paramedics. Despite Claimant’s efforts, he was unable to bring the baby back. Claimant continued to work for Employer but suffered from mental issues related to the first incident.
During the second event, in May 2021, a father brought a nine-month-old infant who was not breathing into the fire station. Claimant and co-workers performed CPR on the nine-month-old baby, who was not revived. After the second incident, Claimant’s mental health symptoms intensified, and he left his duties as a firefighter.”
Lesson learned: The firefighter proved the two infant CPR incidents were “abnormal” for his fire department.
Chap. 15 – Mental Health, incl. CISM, Peer Support, Pet Therapy
TN: PTSD – DENIED PENSION / TRAUMA NOT “UNEXPECTED”
On Oct. 13, 2025, in Matthew Long v. Chattanooga Fire And Police Pension, the Supreme Court of Tennessee a Knoxville held (5 to 0) that Board correctly denied disability pension benefits to a 15-year firefighter after a hearing, since his PTSD did not arise from “unexpected” traumatic runs. The Board consists of eight members: three active members of the police department, three active members of the fire department, the mayor or the mayor’s appointee, and a member appointed by the City Council. In February 2020, Mr. Long completed treatment at the Center for Excellence in Maryland and then returned home. Mr. Long continued receiving care from primary care providers but reported difficulty finding satisfactory follow-up mental health care. In June 2020, FD had psychiatrist Dr. Keith Caruso again evaluate Mr. Long’s fitness for duty and he determined that Mr. Long was “permanently and totally disabled as a firefighter.” The Court reversed both the trial court and the Court of Appeals, which had found Board term ambiguous, an applied the liberal construction doctrine to award benefits. https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20-%20E2022-01151-SC-R11-CV.pdf
THE COURT HELD:
“At the heart of this dispute is the Policy requirement that, to be eligible for benefits, a mental health ‘disability [must be] a direct result of a traumatic event that is . . . unexpected.’ Specifically, what does it mean for a traumatic event to be “unexpected” as required by the Policy?
The Court of Appeals found the term ambiguous, applied the liberal construction
doctrine, and then construed the Policy in favor of Mr. Long. Long, 2023 WL 8716539, at
*9–11. The Fund disputes the finding of ambiguity and also argues that the Court should
defer to the Board’s interpretation of the Policy. We hold that the Policy is not ambiguous, and we interpret it according to its unambiguous plain meaning.
***
Matthew Long was employed as a firefighter with the Chattanooga Fire Department for fifteen years before he applied to the Chattanooga Fire and Police Pension Fund (‘Fund’) for disability pension benefits. The denial of Mr. Long’s application is the subject of this appeal.
***
Mr. Long responded to many emergency calls over the course of his career. This
case focuses on four traumatic events that Mr. Long identifies as contributing to his
disability.1 We will discuss them in the order they occurred.
The first event Mr. Long identified was a car accident near the Bailey-Willow
intersection in 2008. Mr. Long was called to the scene of a car wreck involving a mother and three children. Mr. Long testified that the mother had run a red-light and been T-boned by an SUV. The children, including an infant in a car seat, were not buckled in when the wreck occurred. Mr. Long rendered aid to the infant whose skull had been crushed after the car seat bounced around the car as well as to a young girl who had been thrown out of the car. Two of the three children died from their injuries. Mr. Long noted that this incident was deeply troubling to all the firefighters who were on the call and that it was particularly hard for him because his children were about the same age as the children in the wreck.
The second event Mr. Long identified was the Highland Park fire in 2013. Mr. Long
was called to a fire at an apartment where two children were trapped in the burning
building. Mr. Long rendered aid to one of the children and remembered that the child’s
hair was ‘sloughing off,’ his ‘skin was hanging,’ and he was ‘covered in soot.’ Mr. Long
and the other firefighters revived the child and then sent him in an ambulance for further
treatment. Unfortunately, the other child died at the scene. Mr. Long also discussed the aftermath of the Highland Park fire. More than a year after the fire, the surviving child came to visit the fire station to thank Mr. Long and the other firefighters. Mr. Long did not know in advance that the child was coming to visit, and the child was “so disfigured that . . . it was something that stuck with [Mr. Long].” Mr. Long also testified that he rarely learned anything about the people he helped and the child “was one of the few” he ever saw again.
The third event was a pedestrian being struck by a car.2 Mr. Long was one of the
responders to an accident where a man was hit by a car while pushing his girlfriend out of the way. The man died on the scene after “spitting out pieces of his lungs.” Mr. Long
found this particularly troubling because the man’s friends and girlfriend were asking Mr.
Long if the man would be okay.
The fourth event was an encounter with an armed man in July 2019. Mr. Long and
other firefighters responded to a call that an elderly woman had fallen. When they arrived, Mr. Long came upon a man cutting pills. The man had a handgun out on the table and looked at Mr. Long in a way that made him feel threatened, particularly because the call was without police backup. Mr. Long testified of this encounter, “I’ve seen people with guns and different things, but at this moment I was done.” This event occurred around the time that Mr. Long began mental health treatment.
***
There is little evidence that the events causing Mr. Long’s PTSD were ‘unexpected,’ and there is significant evidence that the events were expected. There is certainly ‘more than a scintilla of evidence’ to support the Board’s decision. The Policy placed the burden of proof on Mr. Long to show that the events causing his PTSD were unexpected, and our review of the record yields little evidence that he met that burden. Accordingly, we find that the Board’s decision is supported by substantial and material evidence in the record and there is ample basis for a reasonable person to reach the same conclusion.”
Lesson learned: The claimant failed to prove his mental health disability was “a direct result of a traumatic event that is . . . unexpected.”
Note: See Oct. 15, 2025 article, “Tenn. Supreme Court reinstates denial of PTSD benefits for former firefighter. “ https://www.firerescue1.com/legal/tenn-supreme-court-reinstates-denial-of-ptsd-benefits-for-former-firefighter?utm_source=delivra&utm_medium=email&utm_campaign=FR1-Daily-10-15-25&utm_id=9641961&dlv-emuid=fed355b8-46a2-4fa4-b55c-4d602dde33c4&dlv-mlid=964196
Chap. 15 – Mental Health, incl. CISM, Peer Support, Pet Therapy
NY: PTSD – GET “ORDINARY” DISAB – NOT “ACCIDENTAL”
On October 10, 2025, in Gordon Springs v. The New York City Fire Pension Fund, et al., Judge Lyle E. Frank, Supreme Court, New York County (unpublished decision) held that the Pension Board, while granting the retired firefighter ordinary disability benefits, properly denied him Accidental Disability Retirement (ADR). The case was first remanded to the Board, which reconfirmed its decision denying ADR. https://cases.justia.com/new-york/other-courts/2025-2025-ny-slip-op-33910-u.pdf?ts=1761341305
THE COURT HELD:
“To receive ADR, a member must establish that they are ‘physically or mentally
incapacitated for the performance of city-service, as a natural and proximate result’ of an
accidental injury received in such city-service. Administrative Code §13-353.
***
With respect to petitioner’s psychological disability, the Court similarly finds that
respondents, consistent with binding precedent, reasonably determined that it was not causally related to his duties as a firefighter. See Smith v City of N.Y., 208 AD3d 1335 [2d Dept 2022] (firefighter physically and sexually assaulted by two fellow firefighters and subsequently developed PTSD in connection with assault); Picciurro v. Bd. of Trs. of the N.Y.C. Police Pension Fund, 46 AD3d 346, 348-49 [1st Dept 2007] (police officer suffered PTSD and depression after humiliation, harassment and taunting by coworkers); Baird v Kelly, 25 AD3d 311, 313 [1st Dept 2006] (‘campaign of harassment does not constitute an accident’).
Lesson learned: Under New York precedent, harassment does not constitute an accident.
Note: See plaintiff’s Feb. 8, 2000 Complaint where he alleged harassment as a Black, Muslim firefighter. file:///C:/Users/lawre/Downloads/US_DIS_NYSD_1_19cv11555_COMPLAINT_against_City_of_New_York_City_of_New_Yor.pdf
Chap. 17 – Arbitration, incl. Mediation, Labor Relations
CA: UNION PRES – ORDERED TAKE PSYCH EXAM - NO CASE
On Oct. 13, 2025, in Ryan Mack v. City of Guadalupe, et al., California Court of Appeal, Second District held (3 to 0, unpublished decision) that trial court properly granted summary judgment to the defendants. The firefighter was a Captain and a vocal Union President; on March 8, 2022, he took sick leave. The Fire Chief called him to about his level of stress. and he replied, “I do not feel 100 percent, and I don’t feel capable of doing the job right now.” On March 10, 2022, Human Resources manager advised him he was being ordered to take psychological and physical exam; he passed both and returned to work in April. He continued work for next year and resigned on June 5, 2025. https://www4.courts.ca.gov/opinions/nonpub/B342205.PDF
THE COURT HELD:
“We conclude appellant did not suffer an adverse employment action as a matter of law. Thus, summary adjudication was proper as to his discrimination and retaliation claims.
***
A reasonable trier of fact could not find that the fitness for duty order was an adverse employment action. The City’s policy manual expressly authorized fitness for duty examinations. The City’s personnel policy does not list fitness for duty examinations in its discipline tiers, and Chief Cash declared he ‘did not mean it as discipline.’ Appellant was paid while on leave pending the two examinations. After passing the examinations, he was cleared to return to full duty in April, the month after the fitness for duty order issued. That order did not cause appellant professional harm, and such harm cannot reasonably be inferred from appellant’s resignation over a year later.”
Lesson learned: Psychological exam is not an adverse employment action.
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