Acts or omissions by a fire officer at an incident that ultimately cause injuries may violate firefighter civil rights.
The days of believing that NFPA standards, textbooks and articles in magazines have no effect on fire departments and fire chiefs are over.
Take, for example, the 1999 townhouse fire in the District of Columbia that resulted in two line-of-duty deaths and two other severe injuries.
Firefighter Anthony Sean Phillips Sr. entered the first floor of the residence with his officer, Lt. Frederick Cooper. After entering the structure, Cooper and Phillips became separated. Cooper exited the building and subsequently determined that Phillips had not.
Meanwhile firefighters Louis J. Matthews and Joseph Morgan, and Lt. Charles Redding also entered the burning building, unaware that Phillips and Cooper were inside. When Redding entered the townhouse, he was informed that the fire was on the first floor. As the firefighters were inside the home, a truck company arrived on the scene and began ventilating the front of the townhouse. A second truck then arrived and ventilated by breaking the rear basement sliding glass door.
While the firefighters were inside the house, Bttn. Chief Damian Wilk radioed Redding twice to determine his position. Redding did not receive these transmissions. Communications were impaired and visibility was poor. Redding did not have a hand light with him. The ventilation efforts of the truck companies resulted in super-heated gases from the fire shooting up the basement stairway to the first floor.
Redding ran from the townhouse, with his face and back burning. He informed Wilk that Matthews was still in the townhouse. Redding was unaware that Morgan and Phillips also were inside. Wilk did not order a rescue effort until approximately 90 seconds later, when Morgan exited the house suffering from severe burns.
Phillips and Matthews were found unconscious and severely burned. Phillips died of his injuries on the scene, while Matthews died of his injuries the following day. Morgan and Redding survived but suffered severe burn injuries.
NIOSH investigation
The National Institute for Occupational Health and Safety conducted an investigation into the facts and circumstances of the LODDs and concluded that the fire department did not follow standard operating procedures, in that there was a failure to properly ventilate the building and to coordinate personnel activities on the scene; that there was a failure to use the communications system effectively; and that there was a continuing failure surrounding the maintenance of SCBAs, as well as the need to provide all firefighters with PASS devices. The fire department's own internal investigation reached similar conclusions, and restated criticisms articulated in a report following the 1997 LODD of firefighter John Carter in a grocery-store fire.
One year later Morgan, Redding, and the families of Phillips and Matthews families filed separate civil rights actions under 42 U.S.C. Section 1983 against the district, Chief Donald Edwards, and three other district officials, including Wilk and Cooper.
In a Section 1983 action against a municipality, the plaintiffs must demonstrate that they were deprived of an actual constitutional right by a pattern or practice of the defendant municipality. A local government may not be sued under Section 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose actions can be said to represent official policy, inflicts the injury that the government as an entity is responsible under Section 1983.
In Section 1983 cases involving due-process challenges to executive action, the threshold question is whether the behavior of the officials is so egregious or so outrageous that it may fairly be said to “shock the contemporary conscious.” Generally, the conscious-shocking conduct required to hold the municipality liable must arise from intentional conduct. However, there are exceptions to this rule. One exception may occur where the state has affirmatively created a dangerous condition. A municipality's failure to adequately train employees may, in some circumstances, rise to the level of “a deliberate indifference.”
It may seem contrary to common sense to assert that a municipality actually would have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees, the need for more or different training is so obvious — and the inadequacies so likely to result in the violation of constitutional rights — that the policy makers of the city can reasonably said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.
Lawsuits also may impose individual liability on government officers for actions taken under color of state law. Plaintiffs need not establish a connection to government “policy or custom.” However, in defending these cases, individual officers may assert personal immunity defenses such as “objectively reasonable reliance on existing law.” To raise such a defense, the governmental officer must claim that at the time he acted, the constitutional right allegedly violated was not “clearly established.”
Chief defendant
In the Edwards case, plaintiffs claimed that the defendants knew of the critical need to institute necessary training and enforce mandatory operating procedures. They also claimed that the defendants “knew of the dangers” if they did not provide the necessary training or enforce mandatory operating procedures. The plaintiffs claimed that because of the mandatory nature of the SOPs, the implementation of the policies or procedures by the supervisory officers was not discretionary.
In addition to the Section 1983 claims, the plaintiffs also raised state law-based intentional-tort claims. The firefighters alleged that the fourth-due engine company failed to back-up the second-due engine company in the rear of the structure; that the officer in charge failed to maintain required contact with a member of his crew on the fireground; that the officer in charge failed to immediately account for, report the fact of and locate a missing firefighter; that the fire department failed to have sufficient personnel on the scene to perform effectively; that the first-arriving unit in the rear failed to provide a size-up of the rear conditions; and that the fire department failed to have an available back-up unit in service to replace a truck, which delayed ventilation procedures. The plaintiffs claimed that these failures were product of a conscious and deliberate decision and not a simple or negligent oversight made under emergency, spur-of-the-moment conditions.
The court noted that the fire department had been put on notice of the serious consequences that could result from its failure to train, equip, and staff appropriately. In light of the events surrounding and resulting from the 1997 grocery-store fire, as well as a NIOSH report and deficient implementation of the district's SOPs, the court found that the story the plaintiffs painted shocked the conscious sufficiently to withstand the district's motion to dismiss the complaints.
The court also found that, in light of the supervisory and decision-making capacities of the individual defendants, and their ongoing failure to institute corrective training or to follow the district's own rules even after the scathing reports were issued, it could not dismiss the claims against the district.
With respect to the state-law claims against the city, the trial court determined that the District of Columbia Police and Firefighters Retirement and Disability Act was the exclusive remedy against the District of Columbia for uniformed personnel injured in the performance of their duties — but not for intentional acts committed by a plaintiff's co-employee. Thus, to the extent the plaintiffs asserted intentional-tort claims against individual defendants in their personal capacities — and not as agents of the district — their claims were not precluded by the disability act.
After losing the first round, the defendants asked the district court to vacate its order denying their motion to dismiss the federal Section 1983 constitutional claim filed against them. The court ruled that the plaintiffs adequately alleged that the individual defendants created a conscious-shocking danger that caused the plaintiffs' injuries and deaths, and that the individual defendants were deliberately indifferent to the high probability of such tragedy.
Inherent dangers
The defendants appealed the trial court's denial of their motion to dismiss and the court's failure to grant them immunity. The appellate court noted that when a plaintiff alleges that the government official failed to act in some way giving rise to damages, the injured party must prove that the official was deliberately indifferent to the injured party's constitutional rights.
The court noted a distinct difference between those constitutional violations based on an affirmative act and those that arise from inaction. Because deliberate indifference requires a “lower threshold” showing than does an affirmative act, the court ruled that only when a special relationship exists between the municipality and the victim can a state official's deliberate indifference be truly shocking.
The appellate court ruled that the chief's alleged deliberate indifference may have increased the firefighters' exposure to the risks present at the fire scene, but the risk itself — injury or death suffered in a fire — is inherent in the firefighters' profession. The District of Columbia was not obliged by the due-process clause to protect public employees from inherent job-related risks.
The court ruled that the firefighters could not legally allege the deprivation of a clearly established constitutional right and therefore the fire chief was entitled to qualified immunity from federal constitutional claims as an individual. Therefore, the appellate court reversed the district court's denial of Edwards' motion to dismiss based on qualified immunity.
The case was then returned to the trial court for further proceedings on the state intentional-tort claims only. By that time, all plaintiffs except for Redding had settled. Edwards was the only remaining defendant. Edwards again filed a motion to dismiss the state law claims filed against him by Redding. The chief argued in his second motion to dismiss that Redding's intentional-tort claims could not stand because the complaint “lack[s] the necessary allegations under district law to set forth these claims” and because “it is inherently impossible that Edwards had the specific intent to kill or injure his own firefighters.”
The court returned to its original decision and stated that the allegations support a reasonable inference that Edwards' acts were intentional. Redding's claims for compensatory and punitive damages against Edwards in his individual capacity withstood the second motion to dismiss. The case will proceed through discovery, including the possibility of depositions from the firefighters, company officers, and chiefs involved in the fire.
Redding's claims have been pending for more than 10 years. The court decisions to date have centered solely on whether the plaintiffs are permitted legally to bring claims against the district and its fire officers. There has been little to no discovery from the actual facts by way of depositions of the witnesses, so it is unclear whether Redding will be able to win his case at trial, if it even makes it that far.
The federal constitutional claims against individual fire officers for the decisions made at a fire will not result in viable causes of action. However, courts will be more willing to permit state law intentional-tort — or state claims based on willful, wanton or egregious behavior — to proceed against individual fire officers based on their acts or omissions before and at emergency incidents. Plaintiffs' attorneys will use SOPs — or lack thereof — and current fire-service standards to allege improper conduct by the fire officer, and will further use these standards to survive defense motions to dismiss or for summary judgment. Ultimately, injured parties will have to prove their claimed facts to win the case. The plaintiffs also will have to prove that the acts or omissions of the fire officer directly and proximately caused the alleged injuries.
The growing trend of case law suggests that the courts will permit these cases to be decided by a jury, as opposed to disposing of them earlier based on the plaintiff's lack of evidence.
David C. Comstock Jr., CFOD, is an attorney specializing in fire litigation and the defense of government entities, including fire departments. He's also chief of the Western Reserve Joint Fire District, Poland, Ohio.
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