Ch 5 Management and the Law

Question 1

Chief fire officers are for more likely to be affected by _____ than any other body of case law

Answer 1

Their states case law

Question 2

For fire chiefs, the most important ordinance or charter provision is that which establishes ______

Answer 2

The fire department and describes its mission

• also help define “scope of work”

Question 3

Tort law falls into how many classes and what are they?

Answer 3

2

• Intentional tort (slander, libel,
  defamation)
• Negligence (most common)

Question 4

To prove negligence, and injured person, must be able to demonstrate the following: (4 - DDCI)

Answer 4

1. Duty
2. Duty breached
3. Cause of injury
4. Injury

Question 5

A judge is a trier of _____, whereas a jury is a trier of ____

Answer 5

• Law
• Facts

Question 6

If one person (or a specific group of people) suffered harm, those harmed could use ____ law to pursue repair of the harm

Answer 6

Civil law

Question 7

A harm that the community regarded as a threat to itself would go through application of ____ law

Answer 7

Criminal law

Question 8

____ describes standards of conduct or behaviors that are required (payment of income tax) and the consequences of violating those standards.

Answer 8

Statutory Law

Question 9

This law:
- is created by the courts as they resolve disputes
- a description of the dispute, issue surrounding it, and rationale for resolution of dispute in judge’s decision (opinion)
- judge’s decision is binding (precedent)

Answer 9

Common Law

Question 10

The Supreme Court stated definitively that employers were legally responsible for workplace sexual-harassment, but they could limit or eliminate that liability through: (3)

Answer 10

1) workplace training
2) development of effective harassment claim–response systems
3) prompt and appropriate response to harassment complaints

Question 11

Title VII’s filing limits give employees ____ from the time of the discriminatory pay decision to file a complaint

Answer 11

Up to 180 days

Question 12

The Age Discrimination in Employment Act (ADEA) numbers

Answer 12

• 40 years of age or older
• covers employers of 20 or more persons

Question 13

Defined work period in the fire service ranges from ____

Answer 13

7- 28 days

Question 14

• Supreme Court ruled in favor of the investigators who left the fire scene shortly after the fire was extinguished.
• Restricted unlimited access to fire scene that investigators at once enjoyed

Answer 14

1978 Michigan v. Tyler

Question 15

• Recognition to investigations that occur while firefighters are still involved in fire-control activities
• Warrantless search six hours after Firefighters had left seen violated the fourth amendment

Answer 15

1984 Michigan v. Clifford
(no mention of consent)

Question 16

This law is based on a combination of case law and statutory law

Answer 16

State civil law
(Case + Statutory)

Question 17

This law is based largely on statutory law

Answer 17

State criminal law
(Statutory ONLY)

Question 18

State law approaches fire inspections in 1 of 2 ways:

Either the _____ adopts a code and requires enforcement OR

The ____ authorizes ______ to adapt their own codes and enforce them

Answer 18

• State
• State authorizes Local Government

Question 19

_____ tend to be maintenance inspections of buildings

Answer 19

Fire inspections

Question 20

The legal authority for code enforcement at the state and local level is the constitutionally recognized concept of ______ ______.

Answer 20

• Police Powers

Question 21

Actions that require judgment

Answer 21

Discretionary acts

Question 22

Acts that don’t require judgment

Answer 22

Ministerial acts

Question 23

The question of whether a defendant owed ____ to the plaintiff is at the heart of ____ law

Answer 23

• A duty of care
• Negligence

Question 24

A lawyer discrediting testimony offered by a witness is called:

Answer 24

Impeachment of witnesses

Question 25

____ is a complex legal argument that says in effect that fire code enforcement is for the good of the public at large

Answer 25

Duty doctrine

Question 26

The Constitution of the United States define what three items?

Answer 26

- Structure and operation of the FEDERAL government - INDIVIDUAL rights - Allocation of power BETWEEN the federal government and the individual states

Question 27

Most legal scholars mark the ratification of the Constitution as the?

Answer 27

Final act of the Revolutionary War

Question 28

American courts develop and explain ____ law Local councils, state legislature, and Congress develop and explain ____ law

Answer 28

- Common - Statutory

Question 29

State constitutions, and the federal constitution provide for a judicial review of ____ law

Answer 29

Statutory

Question 30

Trial courts make legal decisions, but those decisions have no _____ power, and thus are not binding on any other court

Answer 30

Precedential

Question 31

Courts with precedential powers are called _____. These 3 courts are appellate courts: p. 118

Answer 31

*Courts of RECORD or Appellate Courts* - US Supreme Court - US Circuit Courts of Appeal - State Supreme Courts (P. 149, court of appeals = appellate court - mentions jury)

Question 32

With the exception of the US Supreme Court, appellate courts in the United States can establish precedent in:

Answer 32

A limited geographic area

Question 33

Which title number of the Civil Rights Act, also prohibits workplace harassment on the basis of race, national origin, religious belief, age- and gender - sexual harassment - in particular?

Answer 33

Title VII

Question 34

The difference between ADA and the Rehab Act is that the Rehab Act applies to _____; ADA, applies to ____, regardless of the number of employees

Answer 34

- Federal fund recipients (Rehab) - All local governments (ADA)

Question 35

A ____ is defined as a person who can perform the essential functions of a job with or without reasonable accommodation

Answer 35

Qualified individual

Question 36

What is the most challenging aspect of implementing ADA in fire departments?

Answer 36

Most departments currently employ firefighters with disabilities who, in most departments, would disqualify new applicants.

Question 37

Five provisions from FMLA

Answer 37

- Up to 12 weeks unpaid leave in any 12 month when employees exhausted sick leave or other benefits. - Guaranteed healthcare benefits and his or her own job upon return from leave - Must’ve worked for the employer for at least one year - Employer can ask for medical opinions or other verification, and can require employee does not return to work after leave repay the employer the cost of the healthcare benefits that are guaranteed during leave - Employer can deny leave to any of the highest paid 10% of its employees if would cause “substantial and grievous injury” to the employees operations

Question 38

What is 29 CFR 1910.134 and what are the parameters?

Answer 38

OSHA Respiratory protection standard - Two in/two out rule - Members must remain in visual or voice contact - Radio not sufficient to satisfy this - Exception 2 in/2 out is immediate occupant rescue

Question 39

Even though federal OSHA standards may not apply in a given JURISDICTION, they can be introduced as what in a civil lawsuit?

Answer 39

Evidence of COMMUNITY standard

Question 40

The focus of what act was on hazardous material site cleanup?

Answer 40

Comprehensive Emergency Response Compensation and Liability Act of 1980 (CERCLA)

Question 41

When Congress responded in 1986 by amending CERCLA via this act, it included provisions dealing with firefighter exposure to the risks of hazardous materials incidents, and specifically addressing hazardous materials response training.

Answer 41

Superfund Administration and Reauthorization Act (SARA)

Question 42

Title III of SARA, which is known as _____, provides for local and regional planning for chemical emergencies and reporting of chemical releases.

Answer 42

Emergency Planning and Community Right to Know Act (EPCRA)

Question 43

This standard makes the judge the gatekeeper for admission of scientific evidence, making sure that such evidence is relevant and reliable, and that what is represented as a scientific knowledge is, in fact, based on an analysis that meets standards of the scientific method.

Answer 43

Daubert standard

Question 44

Of the two methods of alternative dispute resolution (ADR), which is most often associated with resolving collective bargaining disputes?

Answer 44

Arbitration

Question 45

OSHA standards typically represent the minimum standards for firefighters and fire departments in how many states?

Answer 45

50

Question 46

The three defenses a local government has for a negligence suit:

Answer 46

- Comparative and contributory negligence (%) - Assumption of risk - Duty (heart of negligence law)

Question 47

This defense to a negligence suit filed against a local government presumes that fire and other safety codes were enacted for the good of the community, not for the benefit of any particular person. This can only be overridden if the inspector creates a duty to an individual.

Answer 47

Duty Doctrine

Question 48

Three ways in dealing with personal liability for government employees

Answer 48

- Employee found negligent, shares cost with employer - Liability limited as long as act as within scope - Revolved around how negligent (ordinary, willful, gross)

Question 49

When discussing the difference between ordinary negligence and gross negligence, how do courts draw the line between the two? F & R

Answer 49

- Foreseeability - Recklessness

Question 50

When fire department (or fire chiefs) are sued, the lawsuit usually occurs as a result of one of the more following actions: (6) 3 are similar

Answer 50

- Doing something UNAUTHORIZED - IGNORING legally mandated procedures - DEPARTING from rules, regulations, and standard operating procedures - VIOLATING civil rights - DENYING due process - Failing to DOCUMENT

Question 51

This was the last year that the average fire chief could be worry-free about the law or lawsuits.

Answer 51

1964

Question 52

This standard gives OSHA broad discretion to apply a safety standard recognized INDUSTRYWIDE when OSHA has no specific standard in place standard

Answer 52

OSHA general DUTY standard

Question 53

Tyler and Clifford left fire service investigators with what simple rule of thumb?

Answer 53

When in doubt, get a warrant

Question 54

In a negligence lawsuit, a major goal of lawyers on both sides is to do what?

Answer 54

Make sure the jury understands the standard of care that a firefighter is expected to exercise.

Question 55

Common law is created by courts as they resolve disputes and the rationale for resolution of the dispute are embodied in a JUDGE’S DECISION generally known as ____.

Answer 55

Opinion or memorandum

Question 56

The decision is binding within the court’s jurisdiction, and any future case involving the same (or similar) facts with common law. The BINDING decision is called ___.

Answer 56

Precedent

Question 57

Limited governmental immunity is based on two concepts. Of the four terms used, these two are based on HAVING immunity or liability protection?

Answer 57

Discretionary or governmental

Question 58

Limited governmental immunity is based on two concepts. Of the four terms used, these two are based on NOT having immunity or liability protection?

Answer 58

Ministerial or proprietary

Question 59

Steps of a lawsuit or Rules of Civil Procedure (4) CADT

Answer 59

- Complaint - Answer - Discovery - Trial

Question 60

___ negligence can merit legal protection ____negligence can leave the employee unprotected

Answer 60

- Ordinary - Gross

Question 61

Four laws and who they apply to: - 1974 federal water pollution control act - Comprehensive emergency response compensation liability act of 1980 - Super administration and authorization act (SARA) - SARA Title III

Answer 61

- Environmental protection - Hazardous material site cleanup - Firefighter exposure to risks of hazardous material incidents - Local and regional planning for chemical emergencies

Question 62

This sets the floor for public employee compensation; a local government employer can provide salary benefits that are more generous than those contained in this

Answer 62

FLSA

Question 63

Four types of statutes that defined and limited local government (and firefighter) immunity from negligence suits

Answer 63

- Scope of employment (acting within their scope) - Level of negligence (gross, wanton, etc) - Type of act or action (discretionary vs ministerial) - Good Samaritan laws

Question 64

Local government defenses to a negligence suit (3)

Answer 64

- Comparative and contributory negligence (% of fault) - Assumption of risk - Duty (duty doctrine vs duty relationship)