Labor – Firefighters – Turnout gear

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Where a plaintiff union has alleged that the defendant promulgated and maintains a standard for firefighters’ turnout gear that effectively requires manufacturers to use polytetrafluoroethylene and other substances that are carcinogenic, the defendant’s motion to dismiss should be allowed in part with respect to a civil conspiracy claim but denied in part as to G.L.c. 93A and negligence claims.

“The International Association of Fire Fighters (‘IAFF’) is a labor organization that represents firefighters. The National Fire Protection Association, Inc., is a non-profit organization that (among other things) promulgates codes and standards related to fire safety.

“The IAFF contends that NFPA promulgated and maintains a standard for firefighters’ turnout gear (also known as bunker gear) that effectively requires manufacturers to use PTFE (polytetrafluoroethylene) and other PFAS (polyfluorinated alkyl substances) that are carcinogenic, especially when subjected to heat. It alleges that NFPA has done so to further the commercial interests of some of its members that produce materials for use in turnout gear that contain PTFE or other PFAS. The IAFF claims that NFPA is liable for engaging in a civil conspiracy with manufacturers of turnout gear, for engaging in unfair or deceptive conduct in trade or commerce in violation of G.L.c. 93A, §11, and for negligence.

“NFPA has moved to dismiss all of these claims. The Court will allow the motion in part with respect to the conspiracy claim, because the IAFF alleges no facts suggesting that the disputed standard is unlawful or that NFPA or any co-conspirators used any unlawful purpose to achieve or maintain the standard. It will deny the motion in part as to the claim under c. 93A and the negligence claim, because the facts alleged by the IAFF plausibly suggest that NFPA may be liable under either or both of these theories, and the IAFF is not required to join equipment manufacturers as defendants before seeking relief against NFPA. …

“The IAFF does not point to, and the Court cannot find, any factual allegations in the complaint that plausibly suggest NFPA or any co-conspirators set about to accomplish an unlawful purpose, or used unlawful means to achieve an otherwise permissible goal. …

“The IAFF has asserted a viable claim that NFPA engaged in unfair or deceptive conduct that interfered with trade or commerce in violation of G.L.c. 93A. …

“The factual allegations that the IAFF asserts in its complaint adequately allege that NFPA was operating in a business context and interfered with trade or commerce by creating circumstances that effectively require fire firefighters to purchase bunker gear laced with potentially carcinogenic chemicals, in order to benefit manufacturers that use those chemicals. …

“NFPA asserts that it owed no duty of care to the IAFF as a matter of law. Whether a defendant owed a duty of care is a question of law that is appropriately addressed on a Rule 12(b)(6) motion to dismiss. … But the Court is not persuaded by NFPA’s assertion that it had no duty to refrain from adopting manufacturing standards that, if followed, could harm or kill people. …

“… The facts alleged in the complaint plausibly suggest it was foreseeable that manufacturers would follow NFPA’s standards when designing and manufacturing fire fighters’ turnout gear, and that doing so would result in fire fighters unnecessarily being exposed to carcinogens. NFPA’s argument that the harms alleged in the complaint are ‘impermissibly remote’ is nothing more than an assertion that they were not foreseeable when NFPA promulgated and allegedly insisted on maintaining the challenged standard. NFPA cannot avoid answering the claim for negligence merely because any physical harm would result from the actions of third-party manufacturers; since it was foreseeable that manufacturers would follow and implement the challenged standard, NFPA had a duty to ensure that doing so would not harm fire fighters. …

“The IAFF does not seek to hold NFPA liable for failing to control the conduct of turnout gear manufacturers, as NFPA contends. Instead, the IAFF alleges that NFPA was negligent in promulgating a standard that if followed would lead to the manufacture of gear that unnecessarily exposes fire fighters to carcinogens. The allegations in the complaint state a viable claim that NFPA owed the IAFF and its members a duty of care, and that NFPA’s alleged breach of that duty has caused harm. …

“NFPA’s assertion that the IAFF’s claim for negligence is barred by the economic loss doctrine is also without merit. That rule does not apply under the circumstances of this case.”

International Association of Fire Fighters v. National Fire Protection Association, Inc. (Lawyers Weekly No. 09-038-24) (9 pages) (Salinger, J.) (Suffolk Superior Court) (Docket No. 2384CV02517-BLS2) (March 5, 2024).

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