Poisoned chalice

Published:  29 June, 2018

Germany’s highest court of law finds German fire service liable for AFFF used at incident and dismisses claim of public-office immunity.

On 14 June the German Federal Court of Justice in Karlsruhe, southwest Germany ruled that the fire service of the city of Baden-Baden could not claim immunity from liability after using PFOS-containing foam during an emergency.

The judgement is the result of an eight-year-long legal battle between the owner of an industrial premises and the city of Baden-Baden. It is widely regarded as an important test case that will affect the fire service’s operations and its use of firefighting foam.

Sometime prior to 2010 the local fire service had been donated old foam stocks by a chemical company on the Baden-Airpark industrial site. Without realising that it contained PFOS, the fire service used around 8,000 litres of this AFFF foam concentrate at an incident on 8 February 2010 involving a major fire that destroyed commercial warehousing and administrative buildings. As a result, the site in the district of Sandweier became heavily contaminated with fluorochemicals.

Baden-Baden took landowner Claus Reformwaren to court for the remediation and clean-up costs in 2010, with court judgements in 2014 and 2017 finding against the landowner. However, the latest judgement from the highest court in Germany has unanimously reversed the previous ruling on the grounds that the earlier judgement was clearly faulty and incorrect.

The German Federal Court of Justice judgement dismissed the claim that the actions of the fire service incident commander were covered by immunity to liability (haftungsprivileg) because it was an emergency, but rather that their actions counted as contrary to the obligations of public office (amtspflichtwidrig).

The full court judgement* was clear in its denial of the appeal of the defendant, the city of Baden-Baden. It said that the lower court had correctly recognised that the decision of the incident commander to use a PFOS-containing foam in order to prevent spread of the fire to an adjoining warehouse, represented a failure of judgement and was therefore a dereliction of duty in a public office, and that the incident commander had behaved negligently.

However, the judgement ruled that neither the incident commander nor the defendant could claim immunity from liability in accordance with German Civil Code regulation §680 BGB (Security management).

Based on the requirements of the obligations of public office under §839 BGB (Liability in the case of official breach of duty), every degree of negligence establishes liability when public-office obligations are violated. This also applies in the case of an emergency incident and when ensuring protection against danger under public law. It also said that a reduction in the level of liability did not apply in such cases.

The judgment noted that office holders are obliged to respond professionally to an urgent danger and are typically prepared for the associated emergency situation; they are specifically trained for this and can fall back on established procedures.

It said that the risk of a mistake by such emergency personnel was clearly smaller than for others involved by chance, and that public bodies with liability for public-office duty violations by their officers were better protected against the financial risks and costs associated with fire service incidents than private-sector emergency responders. The judgment noted that if a reduced level of liability were to be valid for all public danger protection as regards emergency situations, important areas of state business would be exempt from simple negligence. The judgement said that immunity from liability was neither compatible with the basic rules of official liability nor was it necessary.

The clear message from this judgement is that any degree of negligence by the incident commander nullifies any defence involving waiving liability in an emergency, removing immunity from liability or the award of civil damages, including the significant costs associated with environmental remediation.

The judgement is in line with the principle that the end-user – in this case the fire service and its employer the state of Baden-Baden – is responsible for the pollution caused and with the overarching environmental legal principle that ‘the polluter pays’.

Legal costs are estimated at around 1.9 million euros (US$2.2 million). Exact clean-up costs are unknown, but in January this year local reports quoted site remediation works, which include groundwater treatment, as amounting to two million euros (US$2.3 million) and rising.

*Bundesgerichtshof Karlsruhe (German Federal Court of Justice) 14 June 2018. “III ZR 54/17 Amtshaftung aufgrund Feuerwehreinsatzes bei Grosbrand”.

Image: Flag of the state of Baden-Württemberg (Shutterstock)

  • Operation Florian

Sign up: eMagazine & eNewsletter

The latest issues in your inbox.

Company Profiles

Renka´s Fire Engine No. 1

Firefighting, fast, safe, everywhere. Michael Renka GmbH, based in Germany, is a manufacturer of firefighting vehicles, pumps and rescue equipment.

Waterax - We move water

Trusted by wildland firefighters around the world, WATERAX sets the industry standard by developing innovative, portable fire pumps and water-handling equipment designed to withstand demanding applications and rugged environments.

Big Water Flow for Industrial and Municipal Firefighting Applications

Protecting the lives of the public and firefighters while limiting the structural damage caused in large scale fires is our primary mission

We are committed to improving lives and doing business in the right way

We have a unique mix of capability and culture that we refer to as 3M Science and we strive to develop products that improve people’s daily lives in a multitude of ways.

HazSim - Bringing situational HazMat training to life

HazSim, LLC provides innovative simulation training to ensure your team works safely and effectively. HazSim Pro simulation equipment is in use by hundreds of fire departments, training schools, industrial fire teams, and private trainers across the US, Canada and further afield as well as the US Army.

The ultimate in innovation, quality and service

For 60 years Lehavot has been delivering the world’s most advanced fire detection and suppression automatic systems

Advancing rescue technology

The specialist supplier of quality PPE and Rescue Equipment to Emergency Services.

Revolutionizing fire fighting foam technology

The one-stop resource for fire fighting foam concentrates and custom-designed foam suppression systems hardware.

Trust the best, let us be your foam solution

AUXQUIMIA is a Spanish company whose main activity is the design, manufacture and commercialization of firefighting foam concentrates.

Williams Fire & Hazard Control offers a full line of specialized fire response equipment for oil and gas platforms

From storage tanks and pipeline emergencies to offshore platforms and vessels at sea, Williams' response personnel and specialized equipment quickly address adverse fire emergencies.

The leader in truck-mounted hydraulic platforms

Our mission is to provide the best and the safest solution to professionals that work at height.

If you want quality, you want Zico

Since its inception Ziamatic Corp has provided the men and women of the fire service with products designed to make their jobs safer and easier.

The independent alternative

Dafo Fomtec AB is a privately owned company with head office in Stockholm Sweden and manufacturing in Helsingborg in the south of Sweden.