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Black Sunday: What’s the Big Fuss? It was Just a Fire!

The Black Sunday fire occurred on January 23, 2005, a tragic day in a tragic decade for FDNY. Six firefighters were force to jump from the top floor of an apartment building on East 178th Street. Miraculously only two firefighters were killed, as the 50 foot fall had the potential to take many more lives. The other four trapped firefighters suffered broken bones and disabling injuries.

There were a number of contributing factors that led to the fire extending up and trapping the six members. The fire started on the floor below, and crews were unable to get water on the fire for an extended period of time. The trapped firefighters were searching above the fire. The apartment they were in was an illegally converted unit.

The apartment had been illegally subdivided by erecting walls to create additional rooms that the tenants then rented out for $75 to $100 a week. The arrangement blocked the firefighters from reaching a fire escape, leaving them with the choice of burning to death or jumping. Had they reached the fire escape, it likely would have been just another fire.

Prosecutors filed criminal charges against both the tenants and the building owners. The theory was that the tenants made the illegal subdivisions and the owners looked the other way, each making a conscious choice to put money before safety. All were charged with manslaughter, criminally negligent homicide and reckless endangerment.

A year ago this month the tenants were acquitted of all charges, and the owners were convicted of criminally negligent homicide and reckless endangerment. So it was rather shocking to learn that Judge Margaret L. Clancy of New York Supreme Court (the original trial court…. it’s a long story if you are not from NY… but the NY Supreme Court is a trial court not an appellate court) set the verdicts aside yesterday, February 23, 2010, concluding that the prosecution failed to prove that the defendant owners knew about the illegal partitions.

Failed to prove the owners knew…. That phrase keeps echoing in my mind. Failed to prove the owners knew? What about an owner who looks the other way at fire code violations? How do you prove that someone looked the other way? You put the evidence before they jury and ask them to make the inference about what the defendant knew. Juries are entitled to draw a reasonable inference.

According to an attorney for the owners, David J. Goldstein, “There was absolutely no evidence that either of these defendants were aware of the conditions in the third-floor apartment of that building,” he said. “In order to be criminally negligent or reckless, you have to know that a condition exists.” I disagree. A defendant who chooses to remain ignorant of the facts is just as culpable as one who  knows.

Failed to prove the owners knew… why would a judge look for a way out for defandants under circumstances like this…. 

The fire problem in the United States is much larger than in any other industrialized country – in part because we continue to play these “blameless” games when it comes to fire. Have a fire??? No problem… its an accident, we are sorry for your loss, go collect your insurance. Overload an extension cord and start a fire… sorry for your loss, go collect your insurance. Fall asleep cooking because you were drunk… sorry for your loss, go collect your insurance.

Why do we as a society so willingly tolerate accidents when it comes to fire? We don’t do it with vehicle accidents. In fact we don’t do it with any other type of accident that occurs. Its like Americans have a different value system when it comes to fire. If this case involved the owners of a commercial truck who claimed they didn’t know the brakes were defective, we would have no problem saying you should have made sure the truck had regular inspections and not simply relied on the driver. Why do we so willingly tolerate conscious ignorance when it comes to fire.

Judge Clancy is not alone in her willingness to tolerate “accidents” related to fire. In her mind, as tragic as the outcome was, it was just a fire. It’s not like someone used a gun… or a motor vehicle. It was an accident.

That tolerance of fire is a nation-wide problem. Other countries that do not share that tolerance have much lower incidences of fire. The Black Sunday tenants and the owners would most certainly have faced criminal consequences in those countries. The result of a legal system that takes such behavior seriously….. is fewer fires.

What do you think?

Comments - Add Yours

  • John K. Murphy

    Does this not fall under the Firefighters Rule and Premise Liability? The common law firefighter’s rule originated in the case of Gibson v. Leonard, 32 N.E. 182 (Ill. 1892). There, the Illinois Supreme Court held that a firefighter who entered private property in the performance of his job duties was a licensee, and as such, the property owner owed the firefighter a duty only to “refrain from willful or affirmative acts which are injurious.” Id. at 189. Practically, this meant that a firefighter, injured while fighting a blaze on private property, could not recover tort damages from the property owner whose ordinary negligence caused the fire.
    A number of courts reason that police officers and firefighters, aware of the risks inherent in their chosen profession, have assumed those risks. See e.g. Armstrong v. Mailand, 284 N.W.2d 343 (Minn. 1979) (firefighter assumes all risks of the job); Berko v. Freda, 459 A.2d 663 (N.J. 1983) (nature of police work requires officers to recognize inherent dangers; police officer assumes the risks of the job). As such, the firefighter or police officer should not be allowed to recover when injured as a result of confronting these known and accepted risks.
    A third rationale advanced is public policy. The Supreme Court of Virginia, in Pearson v. Canada Contracting Co., 349 S.E.2d 106, 111 (Va. 1986), cited two fundamental policies in support of that state’s firefighter’s rule: First, injuries to firemen and policemen are compensable through workers’ compensation. It follows that liability for their on-the-job injuries is properly borne by the public rather than by individual property owners. Second, firemen and policemen, unlike invitees or licensees, enter at unforeseeable times and at areas not open to the public. In such situations, it is not reasonable to require the level of care that is owed to invitees or licensees.
    Still other courts reason that the public pays to train firefighters and police officers on the ways to confront dangerous situations, and compensates them for doing so. If these public employees were permitted to bring suit against the taxpayers whose negligence proximately caused injury, the negligent taxpayer would incur multiple penalties in exchange for the protection provided by firefighters and police officers. See Kreski v. Modern Wholesale Elec. Supply Co., 415 N.W.2d 178, 187 (Mich. 1987).
    The Various Forms of the Rule
    Not only have courts been unable to agree on a consistent rationale for the rule, they have not been able to agree on the proper parameters for the rule. A number of courts which recognize the firefighter’s rule as a viable defense to negligence claims allow recovery for willful and wanton conduct resulting in injury. As one court observed, “a tortfeasor who acts wilfully and wantonly is so culpable that the fireman’s rule ought not to preclude the injured officer from suing the egregiously culpable wrongdoer.” Miller v. Inglis, 567 N.W.2d 253, 256 (Mich. Ct. App. 1997).
    Courts have allowed police officers and firefighters to recover for injuries resulting from an act of negligence unrelated to the specific reason for which the officer or firefighter was originally summoned. As stated by the Supreme Court of New Jersey:
    The core of the “fireman’s rule” is that a citizen’s ordinary negligence that occasioned the presence of the public safety officer shall not give rise to liability in damages for the injuries sustained by the officer in the course of the response to duty. . . . The corollary of the rule is that independent and intervening negligent acts that injure the safety officer on duty are not insulated.
    Wietacha v. Peoronard, 510 A.2d 19, 20-21 (N.J. 1986) (citation omitted) (Police officers were injured while investigating a traffic accident when drivers negligently hit parked police cars; officers could pursue action against drivers whose negligence occurred subsequent to officers’ presence at the scene). See also Terhall v. American Commonwealth Assoc., 218 Cal. Rptr. 256, 260 (Cal. App. 1st Dist. 1985) (“Having an unguarded hole in the roof was not the cause of [the firefighter’s] presence at the scene, and the firefighter’s rule has never been applied to negligence which did not cause the fire.”). According to one commentator, all jurisdictions allow recovery under these circumstances. See Jack W. Fischer, The Connecticut Firefighter’s Rule: ‘House Arrest’ for a Police Officer’s Tort Rights, 9 U. Bridgeport L. Rev. 143, 149 (1988).
    More recently, a number of state legislatures have acted to limit or abolish the firefighter’s rule. For instance, in 1987, only one year after the Virginia Supreme Court’s decision in Pearson, supra, the Virginia legislature passed a statute providing that:
    An owner or occupant of real property containing premises normally open to the public shall, with respect to such premises, owe to firefighters . . . and law-enforcement officers who in the performance of their duties come upon that portion of the premises normally open to the public the duty to maintain the same in a reasonably safe condition or to warn of dangers thereon of which he knows or has reason to know, whether or not such premises are at the time open to the public.
    An owner or occupant of real property containing premises not normally open to the public shall, with respect to such premises, owe the same duty to firefighters . . . and law-enforcement officers who he knows or has reason to know are upon, about to come upon or imminently likely to come upon that portion of the premises not normally open to the public. . . .
    Va. Code Ann. § 8.01-226 (Michie 2001). See also Cal. Civil Code § 1714.9 (West 2001) (allowing police officers and firefighters to recover where negligence occurred after negligent party knew of officer’s or firefighter’s presence, or where negligent act or omission violated statute, or was independent of reason officer or firefighter was summoned); Nev. Rev. Stat. Ann. § 41.139 (LEXIS L. Publg. 2001) (firefighter or police officer may maintain action for injuries suffered as a result of another’s willful acts, as well as for negligent acts occurring after the person who caused the injury knew or should have known of the police officer’s or firefighter’s presence).
    Effectively, the State of New York has statutorily abolished the firefighter’s rule by providing that: In addition to any other right of action or recovery otherwise available under law, whenever any police officer or firefighter suffers any injury, disease or death while in the lawful discharge of his official duties and that injury, disease or death is proximately caused by the neglect, willful omission, or intentional, willful or culpable conduct of any person or entity, other than that police officer’s or firefighter’s employer or co-employee, the police officer or firefighter suffering that injury or disease, or, in the case of death, a representative of that police officer or firefighter may seek recovery and damages from the person or entity whose neglect, willful omission, or intentional, willful or culpable conduct resulted in that injury, disease or death. . . .
    N.Y. General Obligation Law § 11-106 (McKinney 2001). While the New York statute forecloses a tort action against a co-worker or an employer, it virtually eliminates the firefighter’s rule as it pertains to all other third-party tortfeasors, and allows police officers and firefighters to recover for ordinary negligence.
    New Jersey similarly limits the scope of the firefighter’s rule by statute. See N.J. Stat. Ann. § 2A:62A-21 (West 2001) (whenever any law enforcement officer or firefighter suffers injury while in the discharge of his official duties and that injury is the result of the neglect, willful omission, or willful or culpable conduct of any person or entity, other than that law enforcement officer’s or firefighter’s employer or co-employee, the injured law enforcement officer or firefighter may seek recovery from the person or entity whose neglect, wilful omission, or wilful or culpable conduct resulted in that injury). See also Minn. Stat. Ann. § 604.06 (West 2001) (the fireman’s rule shall not operate to deny any peace officer or public safety officer a recovery in any action at law or authorized by statute); Fla. Stat. Ann. § 112.182 (West 2001) (common-law firefighter’s rule abolished).
    A terrible tragedy and loss of our firefighter brothers.

  • http://profile.typepad.com/6p0120a62b3877970c Curt Varone

    John
    Good points! I think the civil suits will play themselves out in a way that is more favorable to the families of the deceased and injured firefighters – and perhaps that is a better arena for these issues to be discussed than a criminal case of involuntary manslaughter or negligent homicide.

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