FDNY Prevails in Gas Explosion Lawsuit

A lawsuit filed against FDNY over a 2014 gas explosion on Staten Island has been dismissed. The suit alleged that firefighters negligently allowed a homeowner to accompany them into his gas filled home, and trigger the explosion by turning on a light switch.

Charles V. Caccese, and Charles V. Caccese, Jr., along with their insurer, State Farm Fire & Casualty Insurance Company, filed the suit in 2014 naming the City of New York and The Brooklyn Union Gas Company d/b/a National Grid. As explained in the ruling issued today by Judge Thomas P. Aliotta of the New York Supreme Court for Richmond County:

  • [O]n January 29, 2014, Caccese, who was not home at the time, received a phone call from his son, Caccese Jr., who advised him that he smelled gas in the house and that there was fire department activity on the street.
  • When Caccese arrived home, he saw a National Grid truck and fire department vehicles on the street.
  • He alerted a New York City firefighter that he smelled gas in his home, and firefighter Jose Saenz asked Caccese where his sewer trap was located.
  • They both proceeded to walk downstairs to his basement to the utility room.
  • When Caccese flipped the switch to turn on the light, an explosion occurred causing both Caccese and Caccese, Jr. to sustain serious personal injuries.
  • Prior to the explosion, it appears that there were reports of an immense gas odor existing throughout the neighborhood where the Caccese residence is located.
  • Defendant, Brooklyn Union Gas responded to the reports regarding the gas odor, and defendant New York City Fire Department dispatched multiple FDNY units to investigate the area and the complaints.
  • It further appears 15 homes were evacuated due to the immense odor of gas and positive gas meter readings in the area of 14 Delaware Street and the adjacent streets and homes.
  • It was subsequently confirmed that there was a break in the gas main in front of 14 Delaware Street and that the gas had apparently traveled uphill through the sewer lines along Delaware Street.

FDNY moved for summary judgment on four grounds:

  1. that there is no special relationship existing between the City and plaintiffs;
  2. the City is immune from liability for discretionary decisions in the provision of fire department services;
  3. any claims of special duty and/or negligent design, maintenance and/or repair of the City’s sewer system must be dismissed since these claims were not contained in the Notice of Claim; and
  4. all causes of action brought by Charles Caccese Jr. are barred by the Statute of Limitations.

Judge Aliotta concluded FDNY was entitled to summary judgment based upon governmental function immunity coupled with the fact that no special relationship existed between the city and the plaintiffs. In doing so he does a good job of explaining the special duty rule.

  • “When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose.”
  • If a municipality was acting in a governmental capacity, then the plaintiff must prove the existence of a special duty.
  • Since police and fire protection are examples of long-recognized, quintessential governmental functions”, plaintiff must plead and prove the existence of a special duty beyond the obligation owed to the public at large.
  • Here, plaintiffs have failed to plead the existence of a special duty between themselves and the municipal defendants in their Notices of Claim or in their complaint.
  • Accordingly, dismissal of the complaint is warranted based on that alone.
  • Nevertheless, assuming, arguendo, that a special duty had been pleaded, in the opinion of this Court, there is no proof that a special duty existed between the plaintiffs and the municipal defendants beyond any obligation owed by it to the public at large.
  • In order to establish a duty owed to plaintiff, all of the following elements must be pled and proven: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured: (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality and the injured party; and (4) the parties’ justifiable reliance on the municipality’s affirmative undertaking.
  • In particular, based on the record submitted herein there was very little communication between the firefighters and Caccese, other than the firefighter asking Caccese the location of the sewer trap and saying “let’s go take a look.”
  • In addition, it was Caccese who led the firefighter down the stairs to the basement.
  • Moreover, there were no assurances made by the firefighter to Caccese, or any actions that can be construed as suggesting that the firefighters were performing any tasks for Caccese beyond the tasks they were performing for all of the homes in Caccese’s neighborhood in accordance with policies and procedures to be followed under the circumstances.
  • [T]he interaction of the firefighters with Caccese and the words used by them, do not constitute an assumption of a special duty. Accordingly, plaintiffs’ motion fails in that regard.
  • Finally, even if Caccese had satisfied his burden of establishing the existence of a special duty in this case, a municipality, nonetheless, acting in a discretionary governmental capacity may rely on the “governmental function immunity defense”
  • That defense provides immunity for the exercise of discretionary authority during the performance of a governmental function, even where the conduct complained of was negligent.
  • Once it is determined that a governmental act is discretionary, i.e., the product of reasoned judgment, the municipality is entitled to absolute immunity.
  • It is not for the trier of fact to second-guess discretionary governmental action, nor is a municipal defendant answerable in damages for the injurious consequences of such action, even when negligent.
  • Here, the facts are sufficient to establish that the actions taken by the firefighters in regard to the subject gas leak were discretionary actions taken during the performance of their governmental function.
  • As can be gleaned from the deposition testimony of the fire department personnel, the firefighters were faced with varying circumstances as they inspected the neighborhood and each particular home.
  • The testimony of firefighter Jose Saenz indicates that every call regarding a fire or gas odor/leak is treated differently, depending on the presenting circumstances, and every emergency is treated on a case-by-case basis.
  • Accordingly, the decision-making process of the firefighters under the present circumstances undoubtedly required the exercise of discretion and judgment and, therefore, the City and the FDNY are entitled to immunity in this case.
  • Plaintiffs have submitted no proof sufficient to rebut the Court’s findings regarding the municipal defendants’ judgment and discretion in this case.

Here is a copy of the ruling:

To those from outside of New York, I would recommend caution in so far as Judge Aliotta explains the exercise of discretion leading to immunity. Most states have realized that such reasoning can immunize virtually every decision government employees makes. The better rule is that fundamental policy-setting decisions are entitled to immunity as the exercise of discretion, but functionary decisions that are essentially carrying out policy do not.

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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