Dismissal of Wilmington LODD Suit Upheld by Third Circuit

The Third Circuit Court of Appeals has upheld the dismissal of a lawsuit brought by the estates of three Wilmington firefighters who were killed and three others 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. It claimed that the city’s actions were so outrageous that they violated the 14th Amendment’s due process clause.

The due process clause prohibits government from depriving someone of their life, liberty, or property without due process. It has been interpreted by courts to make government liable for harm resulting from conduct that “shocks the conscience,” and in particular when government acts with “deliberate indifference”. Many civil rights attorneys use this theory as a way around the normal tort immunity protection that governmental entities otherwise have. Here is a link to more on this advanced topic.

The District Court dismissed the suit in February, 2020, prompting the plaintiffs to appeal. In wrestling with this issue, the Third Circuit held:

  • As the District Court recognized, “the Supreme Court has ‘always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this [uncharted] area are scarce and open-ended.’”
  • In Collins, the Supreme Court relied on this reluctance to decide that the Due Process Clause does not provide “a remedy for a municipal employee who is fatally injured in the course of his employment because the
  • city customarily failed to train or warn its employees about known hazards in the workplace.” “Neither the text nor the history of the Due Process Clause supports petitioner’s claim that the governmental employer’s duty to provide its employees with a safe working environment is a substantive component of the Due Process Clause.”
  • Addressing the plaintiff’s deliberate indifference theory, the Collins Court was unpersuaded that “the city’s alleged failure to train its employees, or to warn them about known risks of harm, was an omission that can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.”
  • “Decisions concerning the allocation of resources to individual programs . . . and to particular aspects of those programs . . . involve a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country.”
  • Applying Collins, we have concluded that, while the Due Process Clause does not guarantee public employees certain minimal levels of safety and security, “a government employee may bring a substantive due process claim against his employer if the state compelled the employee to be exposed to a risk of harm not inherent in the workplace.”
  • We agree with the District Court that the risk of injury or death is inherent to a firefighter’s job and that any increase in risk on account of either the “rolling bypass” policy, the alleged understaffing, or any other alleged misconduct on the part of Defendants did not alter the fundamental nature of this inherent risk.
  • Like the District Court, we recognize that this case “involves a tragedy,” and we express no opinion as to whether Plaintiffs may have any remedies under Delaware law.
  • However, because Plaintiffs did not allege a cognizable claim under the Due Process Clause of the Fourteenth Amendment, we will affirm the orders of the District Court.

Here is a copy of the decision:

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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