Judge Tosses Wilmington LODD Suit

A federal judge in Delaware has dismissed a lawsuit filed by the families of three Wilmington firefighters who were killed and three other firefighters who were injured in a 2016 building fire. The September 24, 2016 fire claimed the lives of Lieutenant Christopher Leach, FF Ardythe Hope, and FF Jerry Fickes. The other plaintiffs, FF Brad Speakman, Senior FF Terrance Tate, and Lieutenant John Cawthray, were seriously injured during the rescue efforts.

The suit attributed 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. The suit named 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. The plaintiffs’ argued that the defendants’ conduct was so outrageous that it amounted to a denial of due process in violation of the US Constitution. More on why the plaintiffs opted to bring suit as a federal Constitutional Rights case, as opposed to a more traditional negligence-based  action.

In dismissing the case, Judge Maryellen Noreika ruled:

  • [T]his matter concerns the death of three Wilmington Fire Department (“WFD”) firefighters and the substantial injury of three other firefighters as a result of a house fire that occurred on September 24, 2016 in Wilmington, DE.
  • Plaintiffs allege that the injuries sustained were proximately caused by the policies and actions of… Defendants, regarding “rolling bypass,” which Plaintiffs contend violated their substantive rights guaranteed by the Fourteenth Amendment of the United States Constitution.
  • Plaintiffs’ Complaint asserts three counts under 42 U.S.C. § 1983: a “state-created danger” count (Count I), a “shocks the conscience” standalone count (Count II), and a “maintenance of policies, practices, and customs” count (Count III).
  • “To survive a motion to dismiss… a civil plaintiff must allege facts that ‘raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact).'”
  • Dismissal under Rule 12(b)(6) is appropriate if a complaint does not contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”
  • “The threshold question . . . is whether [Plaintiffs have] sufficiently alleged a deprivation of a constitutional right.”
  • “'[A]s a general matter . . . a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.'”
  • As with most rules, however, this one has at least one exception – “state-created danger” claims, like Count I, which require foreseeable and fairly direct harm, a “special relationship” between the government and the injured party, a government officer’s use of authority to create an opportunity for danger, and conduct that “shocks the conscience.”
  • Yet where the injuries alleged result from a person’s municipal employment, such exceptions rub up against another, well-settled Supreme Court edict – that the Due Process Clause is “not a guarantee against incorrect or ill-advised personnel decisions,” nor does it “guarantee municipal employees certain minimal levels of safety and security in the workplace” or impose federal duties analogous to those imposed by state tort law.
  • As another District Court has noted, “Th[is] friction . . . is particularly acute where a plaintiff is injured in the course of performing law-enforcement, firefighting, and similarly inherently-dangerous duties.
  • These types of employees are exposed to state-created dangers every day – a police officer assigned to arrest an armed and violent suspect or a firefighter instructed to enter a burning building will always face an increased exposure to danger than he or she had before that assignment, that risk will always be known to the supervisors making the assignment, and the decision to issue the directive will always be made in contemplation (and arguably disregard) of that risk.
  • Yet it simply cannot be that such decisionmaking by supervisors, even if tragically flawed, bears constitutional implications; to hold otherwise would dramatically expand the scope of judicial scrutiny of first-responder operations and would effectively convert the Constitution into a guarantee of workplace safety
  • [A] government employee may … bring a substantive due process claim against his employer “if the [municipality] compelled the employee to be exposed to a risk of harm not inherent in the workplace.”
  • Such behavior is “conscience shocking” and claims based on such behavior are outside the scope of those prohibited.
  • Here… the question is whether the alleged risks faced by Firefighter Plaintiffs … were inherent to the Firefighter Plaintiffs’ employment and whether they were compelled to face them.
  • Inherent risks are those to which an employee can expect to be exposed during the course of his employment.
  • A risk is only not inherent if it is “qualitatively different from the types of risks the employee agreed to face when he or she accepted employment.”
  • Thus, an increase in the likelihood of an inherent risk does not necessarily transform it into a non-inherent risk unless the increase is so severe that supervisors know an employee will almost certainly and immediately be injured if he performs his work.
  • Plaintiffs argue that having a “sufficient number” of on-duty fire-fighters minimizes risk.
  • Or to use the factual terms from the Complaint, allows for a ‘manageably dangerous’ environment – an environment where the risks are manageable because of the sufficient level of staff.
  • Yet defendants’ actions, policies and orders flipped this, drastically reducing staffing to crisis levels, thus inversely elevating fire risk, creating an “unmanageably dangerous” environment.
  • That is the environment within which [P]laintiffs had to fight the [September 24, 2016] fire – without the staffing and equipment mandated by the City’s own legislative body.
  • Plaintiffs … claims are not based on allegations that present Defendants or others created or caused the creation of a new risk to Firefighter Plaintiffs, but, rather, that the action and/or inaction of Defendants, including Present Defendants, increased the risk of injury or death in a fire faced by Firefighter Plaintiffs.
  • [E]ven if the heightened risks Firefighter Plaintiffs faced and ultimately suffered from could be construed as not inherent to their employment… Plaintiffs have made no allegation or suggestion that Firefighter Plaintiffs were compelled – either with threats of job loss or otherwise – to be exposed to those risks.
  • As such, all of Plaintiffs’ claims – as currently alleged – are precluded.
  • Accordingly, the Complaint will be dismissed because Plaintiffs have failed allege the necessary underlying constitutional violation for any of the three counts.

Here is a copy of the decision:

An attorney for the plaintiffs, Thomas S. Neuberger, was quoted by Delewareonline.com as saying they would be appealing the ruling: “That’s what the courts of appeal are for and we’re confident that the Third Circuit Court of Appeals in Philadelphia will give a fair hearing of all the issues.”  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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