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Baltimore Settles Live Burn LODD Case for $200,000

The City of Baltimore has reached settlement in the wrongful death case of a trainee killed during a live-fire training exercise in a vacant building in 2007.

Racheal M. Wilson, age 29 and the mother of two, died on February 9, 2007 from asphyxiation and burns suffered at a live burn exercise conducted in an acquired structure. Investigations of the incident revealed numerous safety violations that led to the termination of three members of the training academy staff.  All three were named as defendants in the lawsuit.

The NIOSH fatality report listed 11 recommendations, including the need to comply with NFPA 1403, ensure instructors are trained to NFPA 1041, provide training divisions with adequate resources, and properly screen the physical and psychological suitability of candidates. The report indicated that Wilson was permitted to participate in the live fire training despite the documented fact that she suffered from mask phobia, and had in previous exercises removed her mask at inappropriate times.

Other reports on the incident indicate that despite the fact that Wilson was known to be unable to control the backpressure from an operating nozzle, she was assigned to the nozzle position on the third floor of the fire building with active fire on the second floor. She was assigned to the third floor with two other trainees who were performing ventilation. When the fire began rapidly extending she attempted to use the nozzle and was knocked backward by the force of the water. As conditions worsened instructors tried to rescue Wilson but she had already suffered fatal injuries including burns to her face and respiratory injuries.

Wilson’s family originally filed suit in state circuit court back in 2010 seeking $35 million in damages. The complaint alleged that Wilson’s death "was part of an official culture of ignorance and indifference to safety" within the Fire Department that "shocks the conscience." Besides state law wrongful death and negligence counts, the complaint went further and alleged Constitutional due process violations under Section 1983.

The due process allegations predictably led the case to be removed to US District Court. In due course the federal claims were dismissed, with the court concluding that even “deliberate indifference” in an employment context does not arise to the level of a due process violation.

The case was then returned back to state circuit court where the parties reached an agreement to end the six year ordeal with a $200,000 settlement. The city council was scheduled to approve the settlement yesterday (July 3, 2013) but as of yet there has been no confirmation that the council has acted.

More on the story.

Comments - Add Yours

  • Mike

    If she couldn't handle wearing a mask or the pressure on a handline, why was she even allowed to continue in the academy?

    • http://firelawblog.com Curt Varone

      Mike

      That would seem to be the $200,000 question… and the basis for the lawsuit.

  • Matt

    The germaine question in my mind is why the incident commander was not criminally charged with negligent homicide or manslaughter in the death of the recruit after an investigation report found that he had made the comment that "she is either coming out of that building as a firefighter, or she is not coming out".  A Chief Officer in Lairdsville NY was found criminally responsible for the death of Bradley Golden.  I am at a loss as to how this is not a similar case.

    • http://firelawblog.com Curt Varone

      Matt

      Interesting question. I had not heard that comment attributed to the instructors – but it would seem to explain why they put her in that situation in the first place.

      The key factor in making a case for involuntary manslaughter will be whether the instructors acted recklessly – ie did they "consciously disregard a known and substantial risk of harm". The mens rea for negligent homicide is a bit less.

      Chief Baird in Lairdsville was found not guilty of manslaughter, but guilty of negligent homicide. There are some factual questions in that case that remain disputed – and I won't go into them here – beyond saying – I agree with you. It would appear that someone is responsible for putting Racheal Wilson in a situation she was not prepared to deal with, and that decision could arise to the level of a criminal homicide offense.

  • Steve

    I am curious as to what would have happened if Ms. Wilson had been terminated for "documented mask phobia".  I'm reasonably sure that would have brought its own lawsuit, but at least she would still be alive, a much preferable result than in this case. 

    • http://firelawblog.com Curt Varone

      Steve

      Another great question. I have a sense that a concern about a possible discrimination suit was lurking in the background – but if she had a mask phobia that she could not overcome, and she could not handle a hoseline – then she could not perform the essential functions of being a firefighter and should have been washed out of the academy.

      We cannot let a fear of lawsuits drive us to make stupid decisions. If she sued for disability discrimination, or even race or gender discrimination – the department would have to prove that they treated her the same as they treated everyone else (ie she was not singled out, hazed, mistreated, etc.), that her disability issues were identified and reasonable accomodations provided (remedial training, strength training, counseling/treatment for the phobia) and that even with a reasonable accomodation she could not perform the essential functions of the job.

      Training officers need to be skilled in dealing with these types of cases. It would appear a neanderthol approach was implemented – when – in hindsight – a more enlightened approach was needed.

       

      • BH

         I have a sense that a concern about a possible discrimination suit was lurking in the background 

        Pretty sad that we've gotten to that point- we'd rather put recruits into potentially fatal situations than risk a discrimination lawsuit because certain segments of society have been trained to believe that every bad thing that happens to them is because of color.  

        Though it pains me to say it, in this regard I think West Coast departments have it all over the East- out there this situation would have been thoroughly documented and the candidate dismissed before such a stupid tragedy could occur.  She would have sued, and lost.  She'd be alive, and the city would be out some legal fees- certainly not $200,000.  

        • http://firelawblog.com Curt Varone

          BH

          Well said.

  • http://www.anthonybuono@berk.com Anthony Buono

    $200,000? That amount says to me that the Plaintiffs got cold feet.  

  • http://firelawblog.com Curt Varone

    Anthony

    Just located this law review article: http://www.fblaw.com/pdf/Kruger-governmental-immunity.pdf

    Maryland has pretty strong immunity protection and it is capped.. not suprisingly… at $200,000. There is some discretion allowed to raise it in certain cases… but the bottom line is the city's liability is capped at $200k.

    The initial filing in state court by the plaintiffs, the trip to FDC and back down to the state court would probably eat up most of the $200,000 – and I'll bet the city's defense costs are up there as well.