DCFEMS Dismissed from L’Enfant Plaza Suit

A US District Court judge today dismissed the District of Columbia Fire and Emergency Medical Services Department from the mass tort suit involving the L’Enfant Plaza smoke incident.

The incident occurred on January 12, 2015 when an electrical problem caused power cables to begin emitting large quantities of smoke inside a tunnel just south of L’Enfant Plaza station. A Yellow Line train full of commuters stalled in the tunnel and through a series of miscues, riders remained in the smoke for nearly thirty minutes before being evacuated. One passenger, Carol Glover, died from smoke inhalation and many others were injured.

Over 100 of the injured filed suit against the Washington Metropolitan Area Transit Authority (WMATA), and later the DC Fire and Emergency Medical Services Department (FEMS). The Metro cross-claimed against FEMS claiming it was their failures to follow their own policies that led to the injuries.

Today Judge Tanya S. Chutkan dismissed FEMS from the suit concluding that the decision-making by fireground commanders was protected by sovereign immunity.

  • This case consolidates the claims of approximately 100 plaintiffs who allege injuries stemming from an incident on January 12, 2015 when they were trapped in a smoke-filled Metro train for approximately forty-five minutes.
  • On January 12, 2015, at approximately 3:15 p.m., WMATA train 302 encountered dense smoke and came to an emergency halt in a tunnel several hundred feet past the L’Enfant Plaza Station on the Yellow Line track in the direction of Huntington, Virginia.
  • Passengers were instructed to stay on the train with the doors closed, as the train would be returning to L’Enfant Plaza station.
  • At 3:28 p.m., pursuant to D.C. Fire and Emergency Medical Services Department protocol, OUC dispatched a “Metro Station Box Alarm,” which included five Engine Companies, two Ladder Trucks, two Battalion Fire Chiefs, one Battalion Fire Chief to WMATA Operations Command Center, one Heavy Rescue Squad, one Basic Life Support Unit, one Advanced Life Support Unit, and one EMS Supervisor.
  • Approximately forty-five minutes after the train first became disabled, at 4:00 p.m., FEMS began evacuating the over 200 passengers from the train.
  • Plaintiffs allege in Count II that FEMS “had a duty to provide prompt, competent medical treatment and fire rescue services to the general public, including the passengers trapped on Train 302.”
  • They allege that the District breached that duty by:
    • Failing to prioritize the immediate evacuation of Train 302’s passengers;
    • Failing to establish a unified command post with the MTPD, as required under NIMS protocol;
    • Failing to effectively communicate and coordinate with the MTPD incident commander throughout the duration of the incident;
    • Failing to inform the MTPD and the ROCC about FEMS’s decision to turn off the power to the second railway track at L’Enfant Plaza;
    • Refusing the MTPD incident commander’s offer to utilize MTPD’s radio communication system to overcome the communication difficulties caused by FEMS’s malfunctioning radio system;
    • Actively avoiding contact with the MTPD incident commander by refusing to allow him into the FEMS battalion chief’s vehicle; and/or
    • Otherwise creating an antagonistic environment that deterred effective communication and coordination between the on-site rescue teams.
  • WMATA’s cross-claim against the District states ten Counts for contribution or indemnity based on delegated duty, negligent training, and negligence, and alleges that the District has an implied contractual duty or an equitable duty to indemnify WMATA based on the [Metro Rail Transit – Fire/Rescue Emergency Procedures Policy Agreement, also referred to as the Fire Chief’s Agreement]
  • WMATA alleges that FEMS failed to follow the procedures in the Fire Chiefs’ Agreement, most significantly by failing to establish the Unified Incident Command and ignoring the MTPD Deputy Chief’s efforts to report to that Unified Incident Command and provide critical information to facilitate the emergency response.
  • WMATA claims that as a result, the FEMS Incident Commander failed to ascertain that the train’s passengers were trapped inside a smoke-filled tunnel.
  • It is “settled” that the District is “protected by sovereign immunity if the [challenged governmental] acts are ‘discretionary,’ but subject to liability if the acts were ‘ministerial’ in character.
  • This discretionary-ministerial test mirrors that of the discretionary function exception to the Federal Tort Claims Act.
  • WMATA argues that the Fire Chiefs’ Agreement is the type of “policy” that required a specific course of action for FEMS to follow. It further argues that the Agreement’s terms were specific enough that all acts taken in response to the January 2015 incident were ministerial, rather than discretionary, and therefore the District is not immune from suit.
  • The District first argues that the emergency response “necessarily involved discretionary decisions by the FEMS officials in charge, who had to weigh competing demands on their time and resources in responding to the emergency” and that “FEMS officials had to make on-the-spot determinations regarding the allocation of firefighting resources and the methods to effectuate the evacuation.”
  • The language of the Agreement plainly permits (and in some instances requires) officials to exercise judgment or make choices in the course of their duties. Most significantly, the Introduction states that the procedures outlined in the Agreement “are not intended to serve as the only set of governing procedures for WMATA or any jurisdictional fire department, but rather provide a foundation in which specific and related operational procedures may be developed and implemented by WMATA and each relevant fire/service agency.”
  • The court concludes that this language does no more than, in the Agreement’s own words, “provide a foundation” that is too generalized to prescribe a specific course of action for FEMS or a specific FEMS official to follow.
  • In the court’s view, the high level strategy and decisions involved in the response to a fire emergency such as this one, in which FEMS officials may have to consider competing demands, availability of resources, coordinating with other agencies, and maintaining the safety of FEMS responders, all in a quickly evolving emergency situation, is clearly the type of activity that justifies official immunity to assure… “fearless, vigorous, and effective decisionmaking.”
  • Accordingly, the court will GRANT the District’s motion to dismiss Count II of Plaintiffs’ Master Complaint and WMATA’s cross-claim.

Judge Chutkan declined to rule on the FEMS’s alternative defense, the public duty doctrine.

Here is the decision: in re Yellow Line Cases

Personally, I think the public duty doctrine is a stronger case…

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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