Black Sunday: What’s the Big Fuss? It was Just a Fire!

The Black Sunday fire occurred on January 23, 2005, a tragic day in a tragic decade for FDNY. Six firefighters were force to jump from the top floor of an apartment building on East 178th Street. Miraculously only two firefighters were killed, as the 50 foot fall had the potential to take all six lives. The other four trapped firefighters suffered broken bones and disabling injuries.

There were a long list of contributing factors that led to the fire extending up and trapping the six members, too many to list all here. The fire started on the floor below the top floor. Engine crews on the fire floor were unable to get water on the fire for an extended period of time. The trapped firefighters were searching above the fire when the fire rapidly extended vertically. The apartment they were searching was an illegally subdivided unit.

The apartment had been illegally modified to create additional rentable rooms that the tenants then rented out to sub-tenants for $75 to $100 a week. New walls had been erected, walls that blocked the firefighters from being able to reach a fire escape. Had they reached the fire escape, the fire likely would have been just another fire. The presence of the illegal walls left the firefighters with the choice of burning to death or jumping.

Prosecutors filed criminal charges against both the tenants and the building owners. The theory was that the tenants made the illegal subdivisions and the owners looked the other way, each making a conscious choice to put money before safety. All were charged with manslaughter, criminally negligent homicide and reckless endangerment.

A year ago this month the tenants were acquitted of all charges, and the owners were convicted of criminally negligent homicide and reckless endangerment.

So it was rather shocking to learn that Judge Margaret L. Clancy of New York Supreme Court (the original trial court in the case…. it’s a long story if you are not from NY… but the NY Supreme Court is a trial court not an appellate court) set the verdicts aside yesterday, February 23, 2010, concluding that the prosecution failed to prove that the defendant owners knew about the illegal partitions.

Failed to prove the owners knew…. That phrase keeps echoing in my mind. Failed to prove the owners knew? What about an owner who looks the other way at fire code violations? How do you prove that someone looked the other way? You put the evidence before they jury and ask them to make the inference about what the defendant knew. Juries are entitled to draw a reasonable inference. Isn’t that what happened in this case?

According to an attorney for the owners, David J. Goldstein, “There was absolutely no evidence that either of these defendants were aware of the conditions in the third-floor apartment of that building,” he said. “In order to be criminally negligent or reckless, you have to know that a condition exists.” I disagree. A defendant who chooses to remain ignorant of the facts is just as culpable as one who knows.

Failed to prove the owners knew… why would a judge look for a way out for defendants under circumstances like this….

The fire problem in the United States is much larger than in any other industrialized country – in part because we continue to play these “blameless” games when it comes to fire. Have a fire??? No problem… its an accident, we are sorry for your loss, go collect your insurance. Overload an extension cord and start a fire… sorry for your loss, go collect your insurance. Fall asleep cooking because you were drunk… sorry for your loss, go collect your insurance.

Why do we as a society so willingly tolerate accidents when it comes to fire? We don’t do it with vehicle accidents. In fact we don’t do it with any other type of accident that occurs. Its like Americans have a different value system when it comes to fire. If this case involved the owners of a commercial truck who claimed they didn’t know the brakes were defective, we would have no problem saying you should have made sure the truck had regular inspections and not simply relied on the driver. Why are we so willing to tolerate conscious ignorance when it comes to fire.

Judge Clancy is not alone in her willingness to tolerate “accidents” related to fire. In her mind, as tragic as the outcome was, it was just a fire. It’s not like someone used a gun… or a motor vehicle. It was an accident.

That tolerance of fire is a nation-wide problem. Other countries that do not share that tolerance have much lower incidences of fire. The Black Sunday tenants and the owners would most certainly have faced criminal consequences in those countries. The result of a legal system that takes such behavior seriously….. is fewer fires.

What do you think?

UPDATE: This post was originally made on our old blog platform. During the move to WordPress, the comments we lost.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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