Claims arising from fireground injuries or deaths are often based in tort law, involve workers compensation issues or both. However, in the case of Phillips v. District of Columbia, et al., 257 F.Supp. 2d 69 (D.D.C. 2003), claims under 42 USC Section 1983 were added to the mix. Section 1983 provides, in part, that every person who, under color of any custom or usage of any state, including the District of Columbia, causes any citizen of the United States or person within its jurisdiction to be deprived of rights or privileges secured by the Constitution and laws is liable to the person injured.

The facts in this case arose when a fire broke out in a townhouse on Cherry Road in Washington, D.C., on May 30, 1999. Unfortunately, that fire claimed the lives of two firefighters and caused serious injuries to three others. Two of the injured firefighters and the estates of the two firefighters who perished in the fire brought suit.

The defendants included the District of Columbia; Donald Edwards, the fire chief at the time; Thomas Tippett, the deputy fire chief at the time; Damian A. Wilk, who was the battalion chief and incident commander at the scene; and Frederick C. Cooper Jr., one of the officers on the scene — all in their personal as well as their official capacities. The plaintiffs alleged an assortment of constitutional violations and intentional torts giving rise to injuries and loss of life.

The response to the call unfolded something like this. Upon arriving at the scene, Firefighter Anthony Sean Phillips Sr. entered the first floor of the residence along with his officer, Lt. Cooper. Firefighters Louis J. Matthews and Joseph Morgan and Lt. Charles Redding also entered the first floor.

After entering the building, Cooper became separated from Phillips. He exited the building and subsequently learned that Phillips had not. While the other firefighters were still inside the house, a truck arrived on the scene and began ventilating the front of the townhouse. When a second truck arrived, it prepared to ventilate the basement.

The plaintiffs allege that while the firefighters were inside the house, Bttn. Chief Wilk twice radioed Redding to locate his position. However, Redding did not receive this transmission because Wilk allegedly had not established a fixed command post and was relying on a weaker portable radio. Consequently, the firefighters were unaware of each other's presence. Communications within the building were impaired and visibility was poor.

The plaintiffs further alleged that the improper and untimely ventilation of the structure resulted in a sudden increase in temperature. Redding ran from the townhouse with his face and back burning, but was able to tell the incident commander that Matthews was still in the townhouse. He was unaware, however, that Morgan and Phillips also were still in the structure. Wilk allegedly didn't order a rescue effort until approximately 90 seconds later, when Morgan exited the townhouse, critically injured. In the ensuing search, Phillips was found unconscious and severely burned. He was removed from the townhouse about seven minutes after the rescue effort began. Matthews was found unconscious and severely burned approximately 11 minutes after the rescue effort began. Phillips died of his injuries about 23 minutes after his removal from the townhouse, while Matthews died of his injuries on the following day.

National Institute for Occupational Safety and Health investigators concluded that the Washington (D.C.) Fire Department did not follow its SOPs. Specifically, the investigators found a failure to properly ventilate the building and to coordinate personnel activities, a failure to use the communication system effectively, a continuing failure surrounding SCBA maintenance, and the need to provide all firefighters with automated personal alert safety systems.

The District of Columbia prepared a reconstruction report that mirrored the NIOSH findings and also restated criticisms articulated in a report published two years earlier. That earlier report had focused on the 1997 death of Firefighter John Carter in a fire at a grocery store. The Cherry Road report recognized that deficiencies in training, staffing, equipment and administration noted in the Carter report persisted and stated “further inaction on these recommendations cannot be tolerated.” The report concluded that “the events that took place demonstrate the serious consequences that result from failure to train, equip and staff appropriately.”

The plaintiffs brought Section 1983 actions, claiming that the “policy and custom not to implement recommendations to improve operation of the D.C. Fire Department and enforce standard operating procedures was the product of a conscious and deliberate decision and not simple or negligent oversight made under emergency, spur-of-the-moment conditions without either the opportunity or time for deliberation.”

The defendants filed motions to dismiss the plaintiffs' claims, arguing that the plaintiffs had failed to state a claim upon which relief could be granted. The U.S. District Court for the District of Columbia then considered the defendants' motions.

The court first reviewed the claim against the District of Columbia, saying that 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.

In Section 1983 cases involving due-process challenges to executive action, the threshold question is whether the behavior of the officials is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” In some circumstances, conscience-shocking conduct may be evidenced by something less than intentional conduct. Such a circumstance may exist where the government has a heightened obligation toward the individual, or where the government's “agents create or increase the danger to an individual.” A municipality's failure to adequately train employees may rise to the level of “deliberate indifference.”

The U.S. Supreme Court has held in past cases that the “provisions of the Federal Constitution afford protection to employees who serve the government as well as to those who are served by them, and Section 1983 provides a cause of action for all citizens injured by an abridgement of those protections.”

The district court then noted that in this case, the plaintiffs alleged a policy and custom that shocks the conscience and implicates the deceased and injured firefighters' Fifth Amendment liberty interests. The district court concluded that the plaintiffs had sufficiently alleged that the government violated their substantive due-process rights by acting with deliberate indifference. The court found that the allegations presented evidence of “opportunities to do better” on the part of the city “teamed with a protracted failure even to care.”

The court went on to say 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. It said that in light of the events surrounding and resulting from the 1997 grocery store fire, as well as the NIOSH report and deficient implementation of the fire department's SOPs, the story that the plaintiffs painted shocked the conscience sufficiently to allow them to proceed with their Section 1983 claim against the city.

The court next considered the Section 1983 claims brought against the individual defendants. In order to establish personal liability in a Section 1983 action, it's enough to show that the official, acting under color of state law, caused the deprivation of a federal right.

The court noted that the plaintiffs asserted that the defendants knew of the critical need to institute necessary training and to enforce mandatory operating procedures. The plaintiffs further alleged that the defendants “knew of the dangers if they did not do so, affirmatively chose to do nothing and by so doing … created and/or enhanced the risk of injury to firefighters.”

The court said that it was fair to assume that defendants holding the positions of fire chief, battalion chief and lieutenant would have had advance notice of the fatal pattern and practice of SOP violations. The chief, specifically, was charged with the “responsibility for training instruction, supervision, discipline, control and conduct of firefighters, including the compliance with all policies, customs, instructions, and SOPs.”

The court then ruled that in light of the supervisory and decision-making capacities of these individuals, and the ongoing failure to institute corrective training or to follow the fire department's own rules even after a number of safety reports, the court could not at that point find that the plaintiffs “could prove no set of facts” that would support their claim for relief. The court went on to say that subsequent stages of the proceedings might well reveal that some of the defendants weren't responsible for acts or omissions in violation of clearly established law and would then be entitled to be dismissed from the suit.

Interestingly enough, after the District Court handed down this decision, the U.S. Court of Appeals for the District of Columbia Circuit decided two cases unrelated to this one but that raised issues that might bear on this case. Consequently, the District Court reconsidered its earlier ruling and handed down that opinion in Estate of Phillips, et al., v. District of Columbia, et al., Civil Action No. 00-1113 (EGS), U.S. District Court for the District of Columbia (2005). As a part of that review, the court noted that the plaintiffs had already dismissed all personal claims against Cooper and Wilk.

Upon reconsideration, the court concluded that its original ruling would stand. It noted that the plaintiffs were not alleging that the fire chief and deputy chief had a general responsibility to detect and prevent constitutional violations. Rather, the plaintiffs alleged that two previous reports put the fire department, the fire chief and deputy chief on notice of specific circumstances and problems that, if not addressed, were almost certain to result in injury or death. The court went on to say that at least one report had focused on training and failure to follow SOPs. Based on these facts, if proved, the plaintiffs may be able to link the likelihood of particular constitutional violations to past transgressions, and to link these particular supervisors to those past practices or familiarity with them.

In this later opinion, the court placed particular weight on the fact that under District of Columbia law, the firefighters were not free to resign their positions without permission from the mayor and one month's notice. Consequently, they didn't have the choice to avoid responding to calls for their services by terminating their employment, and thus became individuals toward whom the District of Columbia had a heightened obligation.

The court noted the importance of deference to governmental policy decisions, that is, decisions that require a weighing and balancing of numerous, often competing, factors and interests amid inevitable constraints. It noted the slippery slope that would result if Section 1983 actions against government officials were allowed to proceed every time a policy choice negatively affected an individual or group.

The court distinguished this case, however, by saying that it wasn't a situation where the fire chief and deputy chief simply made a policy decision in light of budgetary, staffing or other outside pressures that it wasn't feasible to enact mandatory procedures, adequately train firefighters, or heed clear warnings that continued inaction would lead to death or serious injury. Rather, the plaintiffs' allegation that the city and these individual defendants did nothing because they simply didn't care, if proved, would be deliberate indifference that would shock the court's conscience.

This is a case of considerable significance and teaches us a number of lessons, including:

• Work-related injuries can lead to personal liability for management personnel in addition to liability in their official capacity.
• When making staffing, resource allocation and purchasing decisions, document the reasoning behind them.
• Base decisions on budgetary or other considerations that classify them as policy decisions, rather than allowing practices to simply develop through custom.

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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, Fire Department Occupational Safety and Health Program.