Wilmington Brownout LODD Suit Filed

The long-awaited suit brought by three seriously injured Wilmington, Delaware firefighters along with the families of three firefighters who died in a building fire in 2016 was filed today in US District Court for the District of Delaware. The fire on September 24, 2016 claimed the lives of Lieutenant Christopher Leach, FF Ardythe Hope, and FF Jerry Fickes.

The suit names the City of Wilmington, former mayors Dennis P. Williams and James M. Baker, and former fire chiefs Anthony S. Goode and William Patrick, Jr. as defendants.

As described on the US Fire Administration web site, the incident occurred as follows:

  • Lieutenant Leach was assigned to Ladder 2, Senior Firefighter Hope was assigned to Engine 5, and Senior Firefighter Fickes was assigned to Squad 4.
  • At 0256hrs, Wilmington Fire Department units were dispatched to a report of a structure fire at 1927 Lakeview Road in Wilmington. Ladder 2, Engine 5, and Squad 4, along with other Wilmington Fire Department units, were dispatched on the initial alarm.
  • When firefighters arrived on the scene, they found a working fire in a 2-story row house with a basement. Firefighters advanced hoselines into the building to control the fire. As firefighters worked in the interior, a floor collapse occurred. Lieutenant Leach and Senior Firefighter Hope fell into the basement of the building and were trapped by fire and debris. Senior Firefighter Fickes entered the basement, located Lieutenant Leach, and was attempting to remove him when a subsequent collapse occurred and trapped both firefighters.
  • Lieutenant Leach and Senior Firefighter Fickes were pronounced dead as a result of their injuries on September 24th. Senior Firefighter Hope was treated for extensive burns but died as a result of her injuries on December 1, 2016. The cause of death for Lieutenant Leach and Senior Firefighter Fickes asphyxiation and thermal injuries. The cause of death for Senior Firefighter Hope was complications from burns.

Lt. Leach, FF Hope and FF Fickes were posthumously promoted one rank, accounting for some of the media references to Captain Leach, Lt. Hope and Lt. Fickes. The other plaintiffs, FF Brad Speakman, Senior FF Terrance Tate, and Lieutenant John Cawthray, were seriously injured during the rescue efforts.

The suit attributes the deaths and injuries to the city’s policy of understaffing engines and ladders in violation of NFPA 1710 as well as a policy alternatively referred to as “rolling bypasses” or “conditional company closures” that browned out units to save money on overtime. On the evening in question, Engine 6 was out of service in accordance with the city’s “conditional company closures” policy. According to the suit, Engine 6 was the closest engine to the fire, less than a mile from the scene.

The suit alleges that city officials, including two past fire chiefs, deliberately misled the public and the city council regarding the risks associated with the brownouts. It claims city officials even changed the name of the policy from “rolling bypass” to “conditional company closures” to allow Mayor Dennis P. Williams to live up to a campaign promise to end the rolling bypasses while continuing the practice.

The complaint also highlights the efforts of an earlier fire chief, Chief James Ford, to push back against a proposed brownout policy. Chief Ford was the fire chief in Wilmington from 2002 until 2007.

  • Defendant Baker ordered Chief Ford to impose rolling bypass on the WFD.
  • Chief Ford refused to comply with defendant Baker’s order because he believed it to be illegal.
  • Chief Ford explained that rolling bypass is unnecessarily dangerous and that its implementation would result in the needless and avoidable deaths of firefighters and civilians.
  • Chief Ford explained he would quit his job and retire as Chief rather than cause the uncalled for and preventable deaths of firefighters and civilians by implementing rolling bypass.
  • Chief Ford explained that this new policy endangered public safety and refused to implement it.
  • In doing so, Chief Ford fought to save firefighter and civilian lives from improper political meddling.
  • Due to Chief Ford’s stature, reputation and experience, defendant Baker eventually backed down.
  • However, Chief Ford retired as Chief in July 2007.

According to the complaints, Chief Patrick and later Chief Goode acceded to mayor’s wishes regarding brownouts.

The 75-page complaint goes into detail about the fire and is a worthwhile read. The details about the fire start on page 50, paragraph 349 and runs through to page 61, paragraph 416. The complaint includes three counts of Fourteenth Amendment due process violations under 42 U.S.C. §1983. In explaining the factual and legal basis for the deaths and injuries to arise to the extraordinary level of being a Constitutional due process violation, the complaint alleges:

  • [F]or over seven years, defendants had the opportunity to proceed in a deliberate fashion; the luxury of thinking about the issues; the chance for repeated reflection; and extended opportunities to do better.
  • They were faced with a situation where they had the time to make unhurried and considered judgments.
  • In failing to do so, defendants consciously disregarded a substantial and a great risk of serious harm, which was obvious, apparent and grave. They were actually aware of these risks of harm because it was brought to their attention by Chief Ford and the Union, among others. [emphasis added]
  • Defendants’ actions demonstrated a protracted failure even to care. They failed to act upon these great risks of harm due to deliberate indifference, gross negligence and recklessness.[emphasis added]
  • Additionally, they acted intentionally and arbitrarily.
  • At all times material hereto the individual defendants and their agents were acting under color of law.
  • The federal constitutional deprivations described herein are fairly attributable to the City.
  • The defendants either knew or showed a negligent or reckless disregard for the matter of whether their conduct violated federal constitutional rights.
  • The actions of the defendants and their agents or employees were deliberately, intentionally, willfully, purposefully, and knowingly done in violation of federal constitutional rights and because of the exercise of those rights.
  • Their actions were malicious, outrageous, wanton, and taken with evil motive, in bad faith, out of personal animus and without any reasonable grounds to support them.
  • The defendants did not reasonably believe that the actions they took were necessary to accomplish any legitimate governmental purpose.
  • The defendants’ actions were motivated by bias, bad faith, and improper motive.
  • The defendants’ actions constitute an abuse of governmental power.
  • The defendants’ actions do not further any narrowly drawn important, substantial or compelling governmental interest.

Here is a copy of the complaint: Speakman_v_Wilmington

More on the story.

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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