Employment & Labor Law for Public Safety Agencies

Back to list of subjects             Back to Legal Publications Menu

Injuries to Applicants, Trainees, Participants & Observers

·         For TASER® training-related injury litigation, see Legal Aspects of Training Injuries - Part Two, 2007 (9) AELE Mo. L. J. 201 at p. 205 et seq. (Sep. 2007).

·         Also see related topics in this digest: Injuries to Employees, Workers' Compensation - Claim Validity and Workers' Compensation - Exclusive Remedy

     An employee of a state Department of Health Services had a job answering phones and processing benefit applications. When she filed a form notifying her employer of her chronic back pain, she obtained permission to stand and stretch for five minutes every half hour at work. She later took several leaves of absence, sometimes stating that it was because of her disability, but sometimes giving no reason. She was fired after she failed to return to work when her unpaid contractual and statutory medical leave was exhausted. Her lawsuit claimed that the employer failed to accommodate her disability and terminated her employment in violation of the Rehabilitation Act, 29 U.S.C. 794. A federal appeals court upheld the termination, ruling that she had not shown that she was an “otherwise qualified” employee, as required by the Rehabilitation Act.  She had only supplied two terse doctor notes, stating “medical leave of absence until 11/17/10” and “medical leave of absence until 12/17/10,” which did not explain whether she was receiving treatment or the likely effectiveness of any treatment. The plaintiff was not capable of performing the essential functions of her job, because she failed to attend work, and failed to show that she would be able to return to work on a regular basis. Whitaker v. Wisconsin Department of Health Services, #16-1807, 2017 U.S. App. Lexis 3446 (7th Cir.).

     Five Los Angeles injured police recruit officers sued the city after they were either fired or constructively discharged when they were unable to get the necessary medical clearances to return to the police academy. A jury decided that the city had unlawfully discriminated against them because of physical disabilities, and failed to provide them reasonable accommodations. An intermediate California appeals court ruled that the plaintiffs could not prevail on a disability discrimination claim under a state statute because they could not meet the fitness standards for peace officers and therefore were not qualified to perform the essential functions of police recruits. But substantial evidence supported the jury's verdict that the city's refusal of temporary reassignment to light duty assignments was a failure to make reasonable accommodations under state law because of the city’s past practice of doing so before the city changed its policy. The city policy of assigning injured recruits to light-duty administrative positions indefinitely until their injuries healed or they became permanently disabled ended while the plaintiffs were still recuperating from their injuries. Rather than allowing them to remain in their light-duty assignments, the Department asked them to resign or the Department would terminate them, unless they could get immediate medical clearance to return to the Academy. Past damages were awardable for this failure to reasonably accommodate, but the appeals court agreed with the city that an award of future economic losses based on projected lifetime earnings as police officers was unreasonably speculative, considering the fact that they had completed only hours or weeks of their training. Therefore, the court vacated that portion of the damages award and the trial court's award of attorneys' fees and costs. Atkins v. City of Los Angeles, #B257890. 8 Cal. App. 5th 696, 2017 Cal. App. Lexis 115.
     The Washington State Patrol appealed a trial court's denial of its motion for summary judgment in a lawsuit brought by a trooper for alleged deliberately intentional infliction of "certain injury" from being shot with a Taser in the dart mode during training. An intermediate state appeals court, finding that the plaintiff had presented a genuine issue of material fact on his claim that the defendant intentionally inflicted "certain injury," upheld the denial of summary judgment and remanded the case for trial. The Taser exposure caused the plaintiff instant temporary pain, discomfort, trouble breathing, and incapacitation. He was later diagnosed with a fracture in his vertebrae and a "bulged disc." The court said that the description, by the person responsible for developing the training program, of the Taser's "most typical effect's, together with the Taser manufacturer's warning that Taser probes cause "wounds," were sufficient evidence of "certain injury" to create a material issue of fact as to that claim allowing a lawsuit despite the providing of workers' compensation benefits. Under state law, workers' compensation immunity from an injury lawsuit does not apply if an employer knows of and willfully disregarded certain injury. This exception does not depend, the court ruled, on the severity of the initial injury that an employer deliberately causes in disregard of its knowledge that its action will always produce this "certain injury." Whether the defendant willfully disregarded that injury would occur was a question of fact for the factfinder. Taken in the light most favorable to the plaintiff, the evidence submitted could be interpreted as showing that the employer knew that the mandatory Taser training would certainly cause the injuries of the probes inflicting wounds and the exposure to an electrical current, yet disregarded this by still requiring the training. Michelbrink v. Wash. State Patrol, #44035-1-II, 2014 Wash. App. Lexis 973.
     A fire department "live burn" training exercise got out of hand. A recruit participating in the exercise became trapped on the third floor of the three-story vacant building being burnt, and died from her injuries. Her surviving family filed a federal civil rights lawsuit claiming that the city had acted with deliberate indifference to the decedent's safety, in violation of substantive due process. Such a claim could not be pursued in the absence of any evidence that the department actually intended to inflict harm on the participating recruits, for which there was no evidence. Slaughter v. Baltimore, #10-2436, 2012 U.S. App. Lexis 11482 (4th Cir.).
     A training officer entered the area where a training exercise simulating an arrest was being enacted. He was supposed to fire his weapon into a sandbox, but failed to do that. When he pointed his gun at a prone officer playing the role of the arrestee, the weapon discharged, killing him. His surviving family filed a federal civil rights lawsuit asserting Fourth, Eighth, and Fourteenth Amendment claims. A federal appeals court found that the plaintiffs had not adequately alleged a Fourth Amendment excessive force claim, merely mentioning the Fourth Amendment without stating how it was violated. The Eighth Amendment claim was also inapplicable as there was no criminal prosecution or "adjudication of guilt" against the dead officer. The court did find that the failure to follow necessary safety precautions could be found to "shock the conscience" in violation of substantive due process. There was no basis for liability claims against the mayor or municipality, however, since the mayor was not involved and there was no showing that the death was caused by an official policy or custom. Due process claims against defendant officers present at the incident, including a supervisor, could proceed, as well as claims against some police defendants not present that day, but who had direct responsibility for the training exercise. Marrero-Rodriguez v. Municipality of San Juan, #11-1195, 677 F.3d 497 (1st Cir. 2012).
     Federal court dismisses a wrongful death action brought by the family of a recruit firefighter who was killed in a live burn training exercise in a three-story row house. The deceased's hose was not charged with water pressure and her team had been instructed to bypass fires on the first two floors and to proceed directly to the third floor. Reckless conduct on the part of training supervisors is not a constitutional violation. Slaughter v. Mayor of Baltimore, #L-10-1157, 2010 U.S. Dist. Lexis 127698 (D.Md.).
     Appellate court upholds the right of an injured Chicago police academy trainee to bring a workers’ comp. claim. Dodaro v. Illinois Workers’ Comp. Cmsn., #1-09-0447WC, 2010 Ill. App. Lexis 799 (1st Dist.).
     Federal court rejects a suit brought by U.S. Navy civilian police officers challenging the use of direct-impact pepper spray in while in training. The risk of injury by the spray was offset by the benefit of training. FOP v. Gates, # 08-0039, 602 F.Supp.2d 104, 2009 U.S. Dist. Lexis 20403 (D.D.C.).
     Because a police trainee had signed a liability release to participate in physically demanding training programs, he was not entitled to damages after he was injured while carrying 70-pound cooler containing the lunches of other police recruits. Such releases serve a public interest in obtaining adequately trained police force. Marcinczyk v. New Jersey Police Training Cmsn., #A-4340-07T3, 406 N.J. Super. 608, 968 A.2d 1205, 2009 N.J. Super. Lexis 94 (App. Div.).
     Federal court dismisses a suit brought by U.S. Navy civilian police officers and their unions, challenging the direct application of pepper spray into the faces of trainees. The DoD properly determined that the risk of injury by the spray was offset by the benefit of training. There was no showing that the DoD harbored a malicious or sadistic intent to injure trainees that would support a substantive due process claim. FOP v. Gates, #8-0039, 2009 U.S. Dist. Lexis 20403 (D.D.C.)
     Fourth Circuit rejects a wrongful death suit filed by the parents of a firefighter trainee. Due process does not impose a duty on municipalities to provide their employees with a safe workplace or to warn them against risks of harm. Waybright v. Fredrick Co. Dept. of Fire & Res. Serv., #07-1289, 2008 U.S. App. Lexis 11755 (4th Cir.).
     U.S. District Judge rejects constitutional claims brought by the estate of a Maryland firefighter trainee that died from heat exhaustion during physical training exercises, but remands the state claims to the state court. No fact supported the application of a state-created danger theory of liability. Waybright v. Frederick Co. Fire & Rescue, #05-55, 2007 U.S. Dist. Lexis 14432 (D. Md. 2007).
     New York court refuses to dismiss a suit brought by an officer who was injured during a tactical training exercise. The training area lacked protective floor padding. Singleton v. City of New York, #9640/06, 2006 NY Slip Op 26412, 2006 N.Y. Misc. Lexis 2928 (2006). [2006 FP Dec]
     Martial arts instructor was not liable for the injuries suffered by a student who was a willing participant. Bevolo v. Carter, #04-4220, 2006 U.S. App. Lexis 9874 (7th Cir. 2006). [2006 FP Jun]
     Appellate court rejects a negligence lawsuit filed by a police student who was seriously injured while practicing arrest takedown techniques. Assumption of risk bars such claims. Saville v. Sierra College, #C047923, 2005 Cal. App. Lexis 1843 (3rd App. Dist. 2005). [2006 FP Feb]
     Anaheim police lieutenant, who suffered on-duty injuries and later was denied promotions and forced to take early retirement, wins a $5.2 million jury award. Welch v. City of Anaheim, (Orange Co. Super. Ct. 2005). {N/R}
     Illinois appellate court strikes down a "release" signed by a firefighter applicant who was injured during the agility test. However, village was not liable under a statutory immunity law. White v. Village of Homewood, 628 N.E.2d 616 and 673 N.E.2d 1092 (Ill.App. 1996). [1997 FP 153]
     Federal court dismisses all claims against an employer after an applicant suffers a fatal heart attack during the pre-employment agility test. Tafoya v. Bobroff, 865 F.Supp. 742 (D.N.M. 1994). [1995 FP 58]
     An applicant for sheriff's deputy who was injured while performing a fitness course was not entitled to damages. Chapman v. Gonzales, 824 S.W.2d 685 (Tex.App. 1992).

Back to list of subjects             Back to Legal Publications Menu