Buffalo Firefighter Sues City For Burn Injuries at Fire

A Buffalo firefighter who was injured last January in a house fire, has filed suit against the city claiming that numerous safety and health violations caused his injuries. Eric Whitehead filed suit in Erie County Supreme Court on August 7, 2019. Whitehead suffered severe burns to both of his hands, which required him to undergo several surgeries and spend six weeks in the local burn unit.

The fire occurred on January 10, 2019 in a two and one-half story wood frame structure. Whitehead was serving as the acting officer of Engine 21, which was first in. He and firefighter Gregory Blum advanced an attack line to the attic, which was believed to be the seat of the fire.

While I am not sure I fully follow the facts as explained in the complaint, it appears that Whitehead is claiming Blum evacuated with building without him. Shortly thereafter he claims he was struck by an “unknown object” which caused him to lose contact with the hose, and become disoriented. At some point thereafter, Whitehead apparently had no alternative but to remove his gloves to activate a “man-down” switch on his radio. He sustained the burns to his hands in the process, but was rescued by other firefighters.

The complaint alleges a violation of General Municipal Law §205-a, which states:

  • 1. In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any fire department injured, or whose life may be lost while in the discharge or performance at any time or place of any duty imposed by the fire commissioner, fire chief or other superior officer of the fire department, or to pay to the wife and children, or to pay to the parents, or to pay to the brothers and sisters, being the surviving heirs-at-law of any deceased person thus having lost his life, a sum of money, in case of injury to person, not less than ten thousand dollars, and in case of death not less than forty thousand dollars, such liability to be determined and such sums recovered in an action to be instituted by any person injured or the family or relatives of any person killed as aforesaid.

As for the city’s role in “causing” Whitehead’s injuries, the complaint faults the city, the fire department, the incident commander and Blum for the following:

  • CITY OF BUFFALO and/or CITY OF BUFFALO FIRE DEPARTMENT, violated and departed from certain, specific, direct and immutable rules, regulations, policies and procedures, and practices in fighting and/or responding to the fire.
  • That these violations and departures include, but are not limited to
  • failing to ensure that all personnel are aware of the dangers of working around a fire, especially an attic and/or structure fire;
  • in failing to have, develop and/or enforce a standard operating procedure that addresses strategies and tactics for the type of fire present at the 82 Butler Avenue premises on
  • January 10, 2019;
  • in failing to ensure that the incident commander received interior status reports and perform/continue evaluating risk-versus-gain;
  • in failing to ensure that crew integrity was maintained at all times on the fireground;
  • in failing to ensure that the incident commander received accurate personnel accountability reports so he could account for all personnel operating at the 82 Butler Avenue premises;
  • in failing to ensure that a separate incident safety officer, independent from the incident commander, was appointed;
  • in failing to ensure that firefighters used their self-contained breathing apparatus and were properly trained in emergency procedures with said apparatus;
  • failing to ensure that firefighters were equipped with proper equipment, including radios with “mayday” buttons which were operable while wearing, wet, flame retardant gloves; failing to identify and/or consider the atmosphere of the whole building located at 82 Butler Avenue, Buffalo, New York as being Immediately Dangerous to Life and Health prior to deducing the fire’s location on January 10, 2019;
  • failing to ensure that each firefighter remained in visual and/or voice contact with one another at all times; failing to adequately and properly train its agents, employees and/or representatives;
  • failing to inform all members of the firefighting team that everyone had been evacuated from the house and they were now performing non-life saving measures;
  • in compromising firefighter accountability;
  • failing to properly and accurately document incident details;
  • in causing and allowing a firefighter to become isolated and distressed requiring rescue; and
  • in failing to provide Plaintiff a place of employment free from recognized hazards likely to cause death or serious physical harm to employees as required by OSHA Section 5(a)(1) of OSHA and Labor Law Section 27-a (Public Employee Safety and Health Act).
  • That, more specifically, these violations and departures include, but are not limited to, failure to comply with certain federal regulations and standards, including, but not limited to, 29 CFR § 1910.134 and 29 CFR § 1910.156 (e)(4)(i), adopted in New York State by 12 NYCRR §800.3; failure to follow certain National Fire Protection Association standards; failure to comply with and follow relevant and applicable OSHA and Labor Law/Public Employee Safety and Health Act Sections; and failure to comply with certain state regulations and standards, including, but not limited to 29 CFR § 1910.134(d)(1)(iii), 29 CFR § 1910.134(g)(4)(i), 12 NYCRR Part 801.29(a), 19 NYCRR Part 426, and 19 NYCRR Part 427.

Only the city and the fire department are named as defendants.

Here is a copy of the complaint:

Here is news coverage that offers even more information about what occurred and the allegations in the suit. However, I am still scratching my head at this one.

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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