During the night of Dec. 7, 1996, and into the following morning, a heavy snowfall blanketed Somers, Conn. Shortly after midnight, the defendant, Chief Edward Pagani Jr. of the Somers Volunteer Fire Department, received a call that an electrical wire was down and arcing near 879 Main St. While on his way to the scene, he was notified that the house at that address was burning, and he called for a response from the fire department.

Shortly after he arrived, there was a large electrical explosion, after which the electric wires continued to hum and crackle. Pagani contacted the dispatcher and requested that the dispatcher notify the power company to disconnect the power, but he never received verification that the power company had done so.

After the firefighters arrived there was a second explosion, after which the electric wires ceased humming and crackling. All of the lights in the neighborhood were dark. Pagani then believed the power was no longer operative. He saw no reaction when snow fell on any of the wires in the area or when firefighters were brushed by an electric wire hanging by the front entrance.

Firefighters fought the fire for some time, entering and exiting the house, ventilating the premises, and tending to hot spots. During this time, Pagani heard another explosion and found firefighter Todd Arnone on the ground. Unfortunately, Arnone had been electrocuted after coming into contact with an electrical wire hanging by the door.

Pagani previously had purchased a “hot stick,” a device that can detect the presence of electrical current. The hot stick was in a truck at the scene but wasn't used. Its use by the department had never been approved, and no firefighter had been trained in its use.

The personal representative of Arnone's estate subsequently filed suit against a number of defendants, including Pagani. The suit against the chief alleged both that he had engaged in willful and malicious conduct and that he had deprived Arnone of his rights under the 14th Amendment to the U.S. Constitution. The trial court dismissed all counts of the plaintiff's complaint against Pagani.

The personal representative appealed in the case of Arnone v. Connecticut Light and Power Company et al., AC 24596, Appellate Court of Connecticut (2005). In conducting its review of the lower court's ruling, the appellate court first considered whether the defendant's conduct was indeed willful and malicious.

The plaintiff claimed that Arnone's injuries and death were caused by Pagani's willful and malicious wrongdoing by “sending firefighters into the house with a downed power line that he knew or should have known was energized, by failing to confirm that the line was not energized prior to sending firefighters into the building, by failing to use the hot stick, by failing to wait for the power company to arrive and turn off the power, by failing to contact the power company directly, by ordering men to fight the fire even though he had been advised that the line was energized, and by failing to tell the volunteers that the line remained energized.”

The court first noted that the Connecticut workers' compensation statute contains, as do those in many states, what's often called the co-employee bar rule. In relevant part, the statute says that “if a fireman or, in the case of his death, his dependent, has a right to benefits or compensation … by reason of injury or death caused by the negligence or wrong of a fellow employee while both employees are engaged in the scope of their employment for such municipality, such fireman or, in the case of his death, his dependent, shall have no cause of action against such fellow employee to recover damages for such injury or death unless such wrong was willful and malicious….” (Emphasis added.)

In other words, the Connecticut workers' compensation law would bar this action against Pagani and the plaintiff would be limited to only the workers' compensation benefits, unless the plaintiff could prove that Arnone's injury was caused by Pagani's willful and malicious conduct.

The court then stated that to prove willful and malicious conduct, a showing of actual intent to injure the plaintiff was required. This meant that the intentional or deliberate act or conduct alleged must have been designed to cause the injury that resulted. While a willful and malicious injury is one inflicted intentionally without just cause or excuse, it doesn't necessarily involve the ill will or malevolence shown in express malice. Its characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.

The plaintiff argued that willfulness was synonymous with recklessness and that Pagani's conduct was reckless. The court then acknowledged that the terms “willful,” “wanton” and “reckless” often have been treated as meaning the same thing. The result is that willful, wanton or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. It requires more than a mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simple inattention.

The court went on to state that recklessness is a state of consciousness with reference to the consequences of one's acts; it's more than negligence or even gross negligence. While the state of mind amounting to recklessness may be inferred from conduct, to infer it there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. Wanton misconduct is reckless misconduct. It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. Its characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. Both the action producing the injury and the resulting injury must be intentional.

The apppellate court agreed with the trial court's conclusion that the “willful and malicious” standard is difficult to meet in emergency situations. For example, a police officer's discharge of a weapon that unintentionally severely injured a fellow officer in the course of duty was held not to be willful or malicious conduct. Even a reckless failure to abide by regulations and safety standards doesn't indicate a conscious and deliberate attempt to injure.

The court then ruled that even if the term willful has become synonymous with reckless, the defendant's actions did not rise to the level of recklessness. The court pointed out that the plaintiff conceded that it had never suggested in its complaint or in its briefs that the defendant intended to injure anybody. The court ruled that it therefore follows that the injury resulting from the defendant's actions wasn't intentionally inflicted.

The evidence indicated that the defendant believed that there were no live electric wires at the premises and that he sent firefighters into the building in an attempt to save the structure. The defendant instructed the dispatcher to call the power company and requested that the power be disconnected, and he observed no evidence that the power remained active.

Although he did not receive confirmation that the power was in fact disconnected and did not use the hot stick to verify that the power was disconnected, there are no facts alleged that indicate the defendant made those decisions with the intent to injure any of the firefighters at the scene, including Arnone. The intent to injure simply could not be implied from the defendant's conduct or from those circumstances.

The court further noted that although it is arguable that the term willful may now be construed as synonymous with reckless, there's no authority that suggests maliciousness and recklessness have likewise become synonymous. Regardless of whether Pagani's actions were construed to be willful, the court said that there's no way a reasonable trier of fact could construe them also to be malicious.

The court held that no reasonable trier of fact could construe these facts to find that Pagani had an actual intent to injure Arnone, nor could it imply that he had such a design. The court concluded that a finder of fact reasonably could conclude that the defendant believed that the power wasn't operative at the premises.

The court went on to say that even if it assumed, for the sake of argument, that there was evidence that Pagani deviated from his standard practices as described in his deposition by failing to treat all downed wires as live wires and failing to obtain confirmation that the power had been disconnected, the facts alleged and the evidence presented indicate that this deviation would constitute mere negligence, which isn't sufficient to show that the defendant acted in a willful and malicious manner.

The court went on to point out that even if it assumed, for argument's sake, that a reasonable trier of fact could construe the facts to conclude that the defendant acted in a reckless manner, that still wouldn't be sufficient to show that the defendant's actions were willful and malicious as required by the workers' compensation statute. The court then ruled that a fair and reasonable trier of fact couldn't possibly determine that the defendant's conduct was willful and malicious.

The court moved on to consider whether Pagani's conduct amounted to an arbitrary, excessive use of governmental power in violation of Arnone's civil rights pursuant to the 14th Amendment to the U.S. Constitution and Section 1983 of Title 42 of the U.S. Code. Section 1983 provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress….”

Thus, in order to state a valid claim under Section 1983, a plaintiff must establish: that the conduct complained of was committed by a person acting under color of state law, and that this conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States. In this case, the deprivation alleged by the plaintiff is an impairment of Arnone's right to substantive due process before being deprived of his life, as guaranteed by the 14th Amendment.

The court said that despite the important role of substantive due process in securing fundamental liberties, that guarantee doesn't entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm. Rather, substantive due process protects against only the most arbitrary and conscience-shocking governmental intrusions into the personal realm.

The court held that the facts alleged in the plaintiff's complaint fail to meet the standard for a violation of substantive due process. The plaintiff claimed that because volunteer firefighting is conducted under state law and because there's evidence that the decedent was deprived of life without due process of law, there is at least a genuine issue as to whether the elements of Section 1983 have been met. The plaintiff further alleged that Pagani, acting in his capacity as the chief of the Somers Volunteer Fire Department, allegedly knew of an unusually dangerous condition at the fire scene created by a downed, energized power line but “nonetheless directed the decedent and others to enter the scene and extinguish the fire, and took no steps to safeguard or even to alert them to the unusual danger.”

The appellate court then said that it agreed with the trial court that the plaintiff had not stated a viable claim as a matter of federal law. It further noted that the U.S. Supreme Court has held that even if standards of reasonableness under tort law were violated, that sort of judgment call doesn't shock the conscience as exceeding the bounds of governmental authority.

The court went on to say that it viewed Pagani's actions to be difficult choices made in the line of duty that were not intended to cause harm but which nonetheless resulted in Arnone's unfortunate death. The court concluded that although prudence and adherence to established policy arguably might have prevented the unfortunate result, and a reasonable fact-finder might construe Pagani's actions to be negligent, a fact-finder could not reasonably conclude that his actions were of such a nature that they shocked the conscience. Consequently, no viable claim of deprivation of Arnone's civil rights had been presented, and the Appellate Court dismissed the case against Pagani.

This case illustrates several points:

• There's a big difference between negligence and willful and malicious conduct.
• Even without supporting evidence, there's an incentive to bring a claim of willful and malicious conduct when an action for ordinary negligence is barred.
• Negligent acts do not necessarily give rise to a claim of violation of constitutional rights.
• Courts do recognize that emergencies present special decision-making circumstances.
• While the court found that Pagani's actions were not willful and malicious conduct, it didn't find (and was not asked to find) that he was not negligent.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He has been legal counsel for the Wisconsin State Fire Fighters Association, legal counsel and Wisconsin director for the National Volunteer Fire Council Inc., president of the NVFC Foundation, and current NVFC chair. Stittleburg sits on the NFPA board of directors and has served on the committee for NFPA 1500.