EMERGENCY VEHICLE OPERATION - LAW AND LIABILITY
by
CHARLES POLK PLAYER
Attorney and Director of the Dallas County Fire Academy
Fire personnel, both paid and volunteer, are called on to drive a motor vehicle on
routine and emergency calls. The law is very specific in saying that a firefighter
answering a dispatched fire alarm is not exempt from all road rules, regulations,
laws and liability.
No matter how great the emergency, the driver of an emergency vehicle must
always drive defensively being ready to stop if a motorist fails to yield to oncoming emergency traffic. The firefighter may be dead right on having the rightof-way, but if he ends up dead, the only benefit will be to his next of kin and his
attorney.
In addition, the driver of an emergency vehicle must be trained to drive under
emergency conditions. The driver must have a good driving record for if there is
an accident; the court could find the person or department liable for putting him
under the wheel. In 1983, a Dallas jury awarded $1.6 million dollars to a woman
after it was proven that the driver of the vehicle that struck her was a "reckless
and incompetent driver" and the company was "grossly negligent" in putting him
under a wheel. While the company was not a government, the law is applicable
to a fire department - both volunteer and paid.
In a government case, the City of Frisk was ordered to pay $40,230 when it hired
an individual to drive a city water truck and that individual had a very bad driving
record. In January of 1980, the truck driver hit a youth that was riding a
motorcycle. It was shown that the city either knew or should have known of his
driving record and that the city showed "heedless and reckless disregard of the
rights of others who would be affected by his action." The driver's record
included four DWI convictions, one accident when he ran into the back of a
school bus and driving on the wrong side of the road in another incident. He was
driving while his license was suspended at the time of this last accident. The city
failed to check his driving record.
1.
The Law
A.
The Texas Tort Claims Act
1
In 1970, Texas passed the Tort Claims Act, Article
6252-19 making governmental units liable for personal
injuries and property damage as a result of governmental
functions with certain exceptions. The two exemptions that
firefighters are most interested in are 8 Emergency Calls and
9 - Riot, Police, and Fire. Also, important is 15 which
continues immunity for the individual government
employees.
Section 8.
Emergency Calls - Any claim arising out of the action of an
officer, agent or employee while responding to emergency
situations when such action is in compliance with the laws
and ordinances applicable to emergency action.
This says that a firefighter responding to an emergency and the firefighter
violates the law, then he is not protected under this section.
Section 9.
Riot, Police, Fire - Any claim based on an injury or death
connected with any act or omission arising out of civil
disobedience, riot, insurrection, or rebellion or arising out of
the failure to provide, or method of providing, police or fire
protection.
B.
The Texas Motor Vehicle Laws
The Texas Motor Vehicle Laws are set forth under V.C.S. 6701d. Uniform Act
Regulating Traffic on Highways.
It defines what is an "Emergency Vehicle” and how it must be operated in
responding to an "Emergency.” Note, the law says that when not on a run, all the
road rules apply. In other words, when a firefighter is returning from a fire call,
there are no exemptions to the road rules.
Emergency Vehicles - The law defines an " Emergency Vehicle"
under Section 2(d) and says "Authorized Emergency Vehicle'
means vehicles of the Fire Department (fire patrol), police vehicles,
public and private ambulances for which permits have been issued
by the State Board of Health, emergency vehicles of municipal
departments or public service corporations as are designated or
authorized by the governing body of an incorporated city, private
vehicles operated by volunteer firemen or certified Emergency
Medical Services volunteers while answering a fire alarm or
responding to a medical emergency.......
In the case of volunteers, they should be fully enrolled on the
rosters of their respective organizations and meeting all of the
requirements of selection and training.
The 'Emergency Vehicle" section must be read with the other
sections that cover emergency lights, sirens, obedience to traffic
laws and exceptions to speed laws.
2.
Section 124 gives the exceptions to the traffic laws. The exceptions
are good only when certain conditions exist.
(b)
The driver of an authorized emergency vehicle when
responding to an emergency call .... when responding to but
not upon returning from a fire alarm, may exercise the
privileges set forth in this section, BUT subject to the conditions
herein stated.
(c)
The driver of an authorized emergency vehicle may:
(1)
Park or stand irrespective of the provisions of this
chapter.
(2) Proceed past a red or stop signal or stop sign, BUT
only after slowing down as may be necessary for safe
operation.
(3) Exceed the maximum speed limits SO LONG as he
does not endanger life or property.
(4) Disregard regulations governing direction of movement
or turning in specified directions.
(d)
The exemptions herein granted to an authorized emergency
vehicle shall apply ONLY when such vehicle is making use of
Audible and Visual Signals meeting the requirements of
Section 124 of this Act, exception that an authorized
emergency vehicle operated as a police vehicle need not be
equipped with or display a red light visible from the front of the
vehicle......
The exceptions are severely limited and are granted only
when the driver slows down at stop signals, does not
endanger life and property and meets the requirements of
Section 124 in the use of red lights and siren. If any of these
are not met, the court could rule that the driver was not
meeting the requirements and, therefore, was not protected.
Section (e) is very important as it says: The foregoing
provisions SHALL NOT RELIEVE THE DRIVER of an
Authorized Emergency Vehicle from the DUTY to DRIVE
WITH DUE REGARD FOR THE SAFETY OF ALL
PERSONS, nor shall such provisions PROTECT THE
DRIVER FROM THE CONSEQUENCES OF HIS RECKLESS
DISREGARD for the Safety of Others.
This puts it right on the driver. The city, county or state
may dodge the liability, but if the vehicle driver is reckless
and drives like an idiot, he will end up all alone in a civil
and possible criminal law suit. This is emphasized in the
next Section
The provisions of this Act, applicable to the drivers of
vehicles upon the highways shall apply to the drivers of
ALL vehicles owned or operated by the United States, this
State or any county, city, town, district, or any political
subdivision of the State, subject to such specific exceptions
as are set forth in this Act with reference to authorized
emergency vehicles.
Under this reading, it does include the Firefighters and
Emergency Medical Personnel responding in their private
vehicles because they are acting under the color and
authority of a governmental agency.
This section allows the exceptions only when it is safe to
do so and that the vehicle meets the requirements of
Section 124.
3.
Section 124 Audible and Visual Signals on vehicles, signal
lamps and signal devices says that EVERY Authorized
Emergency Vehicle may be equipped with,
in addition to, any other equipment and Distinctive M
required by this Act, siren, exhaust whistle or bell capable of
giving an audible signal.
(b)
Every school bus and EVERY Authorized Emergency
Vehicle shall, in addition to any other equipment and
Distinctive marking required by this Act, be equipped
with Signal Lamps mounted as high and as widely
spaced laterally as practicable, which shall be capable
or displaying to the front two alternately flashing RED
LIGHTS located at the same level and to the rear two
alternately flashing RED UGHTS located at the same
level, and these lights shall have sufficient intensity to
be visible 500 feet in normal sunlight.....
There is nothing in the Act making blue, green, purple, or pink lights as
authorized Emergency Lights. A fire engine with one blue and one red light does
not meet the wording of the ACT. What a court would say, is not known at this
time. Red lights behind the grill or a single Kojak light on the roof, does not meet
the Act requirements.
The question on the use of private cars by volunteers was answered December
20, 1971 in Attorney General's Opinion M-1017. The Summary states.......
A private vehicle used by volunteer firemen to respond to fire alarms must
be equipped with audible and visual signals required by Section 124,
Article 6701d, Vernon's Civil Statutes, in order to qualify such vehicle as
an "authorized Emergency Vehicle* as defined by Section 2 (d), Article
6701d, Vernon's Civil Statutes. Such private vehicles may have such
signals installed when not in use to answer fire alarms. The placement of
such visual signals as to satisfy the position requirements of Section 124
is a matter of fact depending on the vehicle involved.
From reading this opinion, ft would seem that if the TWO RED LIGHTS
ALTERNATELY FLASHING TO THE FRONT AND THE TWO RED LIGHTS
ALTERNATELY FLASHING TO THE REAR should be mounted on the roof of
the vehicle and as widely spaced as possible. If they are on the roof and in
operation along with a siren, the private vehicle meets the “Authorized
Emergency Vehicle" definition. There is no need to take a chance on what a
court might rule on the argument that "in the back window is just as good as on
the roof of the vehicle." If the vehicle did not have a roof, then there would be a
valid argument.
4.
Horns and Warning Devices are covered in Section 133 and
states the requirements for Authorized Emergency Vehicles
in section (d)
(d)
Any authorized emergency vehicle may be
equipped with a siren, whistle or bell capable
of emitting sound audible under normal
conditions from a distance of not less than five
hundred (500) feet and of a type approved by
the department, but such siren shall not be
used except when such vehicle is operated in
response to an emergency call or in the pursuit
of an actual or suspected violator of the law, in
which said later event the driver of such vehicle
shall sound said siren when necessary to warn
pedestrians and other drivers of the approach
thereof.
Remember the law is talking about "dispatched at
emergency calls, not just because you see smoke in the
distance or there is an emergency in the next city and you
want to go over to see what is happening. Note: Air horns
are not included as Emergency Warning Devices.
5.
Exceptions to Speed Laws are covered in Section 172.
Section 172 - Exceptions to Speed Laws. The provisions of
this Article regulating speeds of vehicles shall
not apply to Authorized Emergency Vehicles
responding to calls, nor police patrols, nor to
physicians and/or ambulances responding to
emergency calls provided that incorporated
cities and towns may - by ordinance regulate
the speed of ambulances, emergency medical
services and authorizes emergency vehicles
operated by blood banks and tissue banks.
Although it does not say so in this section, the driver of an
Authorized Emergency Vehicle may not speed
unless sit is safe to do so as ft says in Section
24 (c) 3. The Miles Per Hour are not as
important as the condition of the road, the
weather and the traffic that determine a "SAFE'
speed under the 'EXISTING' conditions.
Posted speed has little to do with it. Driving an
engine 30 MPH on an ice covered road
approaching a stop sign would not be safe
speed even if posted 45 MPH.
6.
The law tells the drivers of non-emergency vehicles to yield
the right of way to emergency vehicles. Under Section 75 this
is spelled out.
(a)
Upon the approach of an authorized emergency
vehicle making use of audible and visible signals
meeting the requirements of Section 124 of this Act
......
The driver of every other vehicle shall yield the rightof-way and shall immediately drive to a position
parallel to and as close as possible to the righthand-edge or curb of the roadway clear of any
intersection and shall stop and remain in such
position until the authorized emergency vehicle has
passed, except when otherwise directed by a police
officer.
(b)
This Section shall not operate to relieve the driver of an
authorized emergency vehicle from the duty to drive with
due regard for the safety of all persons on the highway.
The case states that the other driver need not expect the
approach of an emergency vehicle and he must be aware of the
approach before he is required to yield. Red lights and a siren
does not give the driver of an Authorized Emergency Vehicle the
right to go through a red light at 60 mph when he may be over
driving his lights and siren.
CASELAW
It makes no difference what the legislator thought or intended when the law was
passed. It makes no difference what we think the law says. The final
determination of what the law says or even if it is a valid law, rests with the
courts.
The public is quick to sue these days for wrongs they feel the governmental
agency has done them. 'The King Can Do No Wrong" is fast fading. Injured
citizens are suing more and more, especially on motor vehicle-related accidents.
The big problem is that they are collecting. Right or Wrong - You, the driver of
an emergency vehicle, can be sued. If you do not file an answer to that suit in
the proper number of days, no matter how silly you think the suit is, judgment will
be entered against you. In most jury trials, the firefighter and his city or county is
the defendant. A jury is very likely to find for the plaintiff for there is any way they
can. Even if you win, you lose to a certain extent because of the expense of
your lawyer and the time lost in court. Always have your own personal lawyer
and do not depend on the city or District Attorney to defend you. There might be
a conflict of interest. Here are some of the "Landmark' cases in Texas that deal
with Authorized Emergency Vehicles that tell what the law says and what the law
means.
A.
Gramier-Dismukes Co. v. Payton 22SWd 544 (1929)
An ambulance driver going 40-45 mph in a fog was held negligent regardless of
the Penal Code which exempted ambulance drivers from arbitrary speed laws.
B.
Watkins v. Houston Electric Co. 155 SW2d 973 (1941)
Decedent was a driver of a fire truck and ran a red light on an emergency run. A
bus hit the fire truck. The court held that the decedent was negligent. He did
have the right-of-way but only with due regard for the safety of others. The fire
truck passed a blind corner in the face of a red light at 25 mph. The Statute says
that you can only proceed against a red light after slowing down as necessary for
safe operations and can exceed the speed limit if it does not endanger life and
property. The driver of the fire truck was not relieved of his duty and was not
protected from the consequences of his reckless disregard for the safety of
others.
C.
Eubanks v. Hood 304 SW2d 567 (1957)
A police car on call traveling at an excessive rate of speed struck the right rear of
a car at an uncontrolled intersection. Passenger in auto sued the two police
officers and the City of Big Springs. Verdict of $8,500 for Plaintiff. Held manner
in which the city police officer operated police car while in performance of duty
did not involve matters within his discretion as an officer or any judicial act within
official jurisdiction nor neglect of public duty. Ordinarily an act committed in
violation of statutory duty constitutes negligence per se. Even responding to an
emergency call at the time of collision did not relieve the officer of his duty of
exercising reasonable care for the safety of others. Although the city is not liable
for the negligence of the acts of its police officers in official discharge of their
duties, a police officer is not immune from the liability of his own negligence while
so engaged.
D.
Watkins v. Goolsby 337 SW2d 363 (1960)
Ambulance was going 40-45 mph and ran a stop sign. He had his lights and
siren going. Saw truck and tried to brake but struck the truck. Goolsby was
driving the truck and was approaching intersection at right angles to path of
ambulance. He contended that he did not see or hear. Ambulance said that it
was his duty to yield right-of-way to emergency vehicle. Court held that if he was
not aware of the approach, then the driver of the truck could proceed in a lawful
manner because he had a right to assume that other vehicle would stop for the
traffic control.
E.
Estep v. City of Dallas (1976)
The Dallas City Council made a $25,000 settlement to the widow of a pedestrian
struck by a City police car. The police car swerved to miss another car and ran
up onto the sidewalk striking the pedestrian.
F.
Radtke v. Brazoria County 566 SW2d 326 (1978)
The Texas Supreme Court ruled that a Deputy Sheriff and Brazoria County must
pay a plaintiff $65,000 in damages when a patrol car spun out of control and
struck the plaintff's car. The trial jury said the Deputy was 60% responsible and
the County was 40% responsible for not properly training and supervising the
deputy. The County appealed contending R was not liable for the actions of the
deputy but the Supreme Court disagreed and ordered the payment of the
judgment to the plaintiff.
G.
Terrell v. State 588 SW2d 786 (1979)
Highway patrolman was trying to apprehend speeder when he started up and
pulled onto westbound lane of highway striking plaintiff's car. The patrolman had
not turned on his red lights or siren. Trial Court entered judgment for the state
but the appeals court reversed and remanded saying that Art. 6252-19, Sec. 14
(9), RCS (Torts Claim Act) does not exempt the state from liability for claims
arising from negligent operation of police vehicles. On the other hand, Sec. 14
(8) does exempt the State from liability for claims arising from negligent
operation of a police vehicle by an officer responding to an emergency situation.
However, Sec. 14 (8) cannot apply here because the patrolman was not in
compliance with the law applicable to emergency action. To lawfully operate a
patrol car in emergency action, one must make application of vehicles audible
and visual signals.
Conclusion
The law gives the firefighter the right to disregard the traffic laws only......
1.
Respond to a dispatched emergency (not from)
2.
When it is safe for him to do so (if you have a wreck, it is not safe to do
so)
3.
When the vehicle meets ALL of the standards set forth for an emergency
vehicle (red lights behind the grill or a Kojak light does not meet the fire
requirements. Also, there is nothing in the law about blue, pink, or any
other color but red for emergency lights.)
The law also says that the other driver does not have to anticipate the approach
of an emergency vehicle so he must yield only if he is AWARE of the emergency
vehicle's approach. The state, county, or city may be able to dodge liability but
the driver cannot.
A word of caution on liability insurance - unless your policy has a rider or
endorsement in black and white stating that you are covered while operating your
private car as an emergency or you are covered while driving an emergency
vehicle - you are not. In fine print it probably has an exclusion on driving an
emergency vehicle. As one insurance agent told volunteer firefighters, “When
you start your run, just drop your policy out the window and then pick it up on the
way back.”
You have your life in your hands, the lives of your fellow firefighters and the lives
of other citizens on the road. It is much better to get there a little late than not
get there at all and the law must be followed for you to have any protection.