Burning Question: Wilmington LODD Suit, Civil Rights Violation, and Deliberate Indifference

Today’s burning question: I saw your article on the Wilmington LODD lawsuit and do not understand why the families of the deceased firefighters would bother suing the city for a civil rights violation. For God’s sake these firefighters were killed and maimed because of the reckless actions of a few people in power who thought they could save some money by browning-out firefighting companies. Why wouldn’t the families just sue the city for wrongful death or maybe negligence? On the facts it would seem like a simpler case to make.

Answer: Civil rights lawsuits are viewed by some attorneys as a strategic “end around” some of the tort defenses that fire departments would typically raise in cases like this. Whether the strategy will actually work is another story. Before we get to that, let’s consider the three big tort defenses that fire departments have so we can better understand the issues.

First of all, municipal fire departments may have sovereign immunity protection from tort suits such as for wrongful death and/or negligence. This immunity protection is likely to be the strongest when the suit alleges that the harm resulted from public policy decisions made by high ranking government officials. There are significant state to state differences in this regard, but as a general rule sovereign immunity protection remains a valid defense in most states from tort claims alleging injuries resulting from discretionary governmental acts and/or policy making decisions.

Second, in many jurisdictions fire departments have statutory immunity protection that immunizes them from tort-based lawsuits. It can be difficult to get around this kind of statutory immunity – which incidentally – most firefighters consider to be a good thing when people are trying to sue us. However, when the shoe is on the other foot the harshness of the rule seems a tad unfair.

Third, employers typically have immunity from lawsuits filed by employees who are killed or injured at work. This immunity arises through a principle known as workers compensation exclusivity. Workers compensation is in essence a social compromise. Employees who are injured at work are guaranteed medical coverage for their injuries and a certain level of compensation for the duration of their disability. In exchange, employers carry comp insurance (or self-insure) and cannot be sued in tort by employees for causing the injuries.

The workers comp system is a no-fault program where the employee does not have to prove the employer was at fault to receive comp benefits, nor can the employee’s fault be grounds for denying coverage. The comp benefits are said to be the employee’s “exclusive” remedy. The end result is that workers compensation laws can make it very difficult for injured firefighters or the relatives of deceased firefighters to sue a fire department for wrongful death or negligence. Again, we do see some state to state differences in this regard but the general rule is firefighters cannot sue their employer in tort for work related injuries.

Civil rights lawsuits provide an alternative way to hold government and governmental officials responsible for deaths and injuries that occur. The legal basis for such civil rights suits comes from the 14th Amendment:  a denial of “life, liberty or property” without due process. One of the key elements that must be shown is that governmental officials acted “under color of law” (in their official capacities) with intent to harm (unlikely here) or with “deliberate indifference” to the harm that occurred.

Civil rights lawsuits are the primary way that police departments are sued following officer involved shootings, high speed pursuits that result in accidents, or when excessive force is used to detain or arrest a suspect. Besides due process issues, police related civil rights suits also implicate a 4th Amendment violation (an illegal search or more commonly an illegal seizure/arrest).

There are many attorneys who specialize in suing police departments and police officers for civil rights violations under a federal law that attorneys tend to refer to by its official citation: 42 USC §1983, or simply a §1983 action. Section 1983 actions allow people to sue governmental entities when their civil rights have been violated. It is not a stretch for these attorneys to apply the same §1983 principles they use when someone is killed or injured at the hands of law enforcement, against a municipality when a firefighter is killed or injured in the line of duty.

Having said all this, the cases where fire departments have actually been held liable for structure fire deaths are few and far between. There are 37 structure fire related civil rights cases in my database (examples being the live fire training death of Rachel Wilson in the Baltimore Fire Department and the Washington DC LODDs of Anthony Sean Phillips and Louis J. Matthews at the Cherry Road Fire).  Generally these suits result in a decision in favor of the fire department. The exceptions…  or rather the sole exception is a case against the City of Philadelphia arising out of the MOVE fire in 1985. Arguably that was more of a police operation than a fire operation but the fire commissioner was named as a defendant in the suit.

There are a few other structure fire based §1983 cases against fire departments that resulted in small settlements, but beyond that the civil rights angle appears to be no more advantageous to injured firefighters than the tort angle. The challenge will likely come down to proving the city and city officials acted with “deliberate indifference”.

Who knows, maybe the Wilmington case will be the one that opens a new wave of civil rights lawsuits against government officials who choose to roll the proverbial dice with firefighters’ lives by understaffing apparatus and closing fire companies to save money. Deliberate indifference. I wouldn’t bet on it… but on the other hand I wouldn’t lose any sleep over it if it did happen. It might wake some people up.

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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