Wrongful Death Suit Over Baltimore LODD Training Death Tossed

The 4th US Circuit Court of Appeals handed down an important decision in the LODD wrongful death suit of Baltimore City firefighter recruit Racheal Wilson. Wilson died on February 9, 2007, in a live burn training exercise gone-bad.

Wilson’s mother, Virginia Slaughter, originally filed a wrongful death suit in state court alleging negligence, gross negligence, recklessness, and wilful and wanton conduct. The 4th Circuit summarized those allegations as follows:

The complaint alleges that Wilson’s death was avoidable with adequate preparations for the exercise and that the Fire Department created unduly dangerous conditions in staging the exercise. The complaint alleges:

     that it was improper for the Fire Department to stage the building by tearing down wallboards and ceilings, by leaving debris, and by adding flammable excelsior to the walls; and that Fire Department officials “knew that [such a] building was unsuitable” for a training exercise;

     that the Fire Department did not conduct a preburn orientation, walkthrough, and planning, as is required for such exercises;

     that the Fire Department did not properly equip recruits and, more specifically, that it did not give Wilson appropriate protective clothing;

     that instructors were not equipped with radios and were not trained to supervise a live burn;

     that, contrary to the National Fire Protection Association’s standards, the Fire Department set fires at multiple locations in the building;

     that the Fire Department allowed the fires to burn too long before recruits entered the building; and

     that the water supply for fighting the fire was inadequate, as it was taken from only one hydrant.

Unfortunately for Ms. Slaughter, the suit also alleged that the city’s conduct violated Wilson’s civil rights by depriving her of her life without due process. In particular, she alleged that the city’s carelessness in conducting the live burn “shocked the conscience” and was “deliberately indifferent” toward Wilson’s safety.  Recovery was sought under 42 U.S.C. § 1983.

Alleging a due process violation is a gamble that plaintiff’s lawyers sometimes make. It gets plaintiffs around certain tort immunity protections that governmental entities may otherwise have. But it has a drawback… and Baltimore’s attorneys exploited it.

Based on the Federal civil rights claim, the city of Baltimore successfully had the case removed from Maryland state court to Federal court because there was a “Federal issue”. Once in Federal court, the city then moved to have the due process claim dismissed. The trial court agreed which in essence ended the Federal lawsuit, and put Ms. Slaughter in the ironic situation have having to refile her state law tort claims back in Maryland state court. Ms. Slaughter opted to appeal the dismissal to the 4th Circuit.

The law underlying liability for due process violations is pretty complicated, but the court’s decision does a very good job of simplifying the issues. Using quotes from the decision we can review the key points:

     “The touchstone of due process is protection of the individual against arbitrary action of government.”

     “Arbitrary action,” however, is used in a constitutional sense, which encompasses “only the most egregious official conduct,” namely that which “shocks the conscience.”

     …the [Supreme] Court has held that the government’s deliberate indifference to the care of persons in its custody can shock the conscience for purposes of finding a substantive due process violation.

     …the plaintiffs argue that cases also recognize that a showing of deliberate indifference can be sufficient to establish a substantive due process violation when the State either created the danger or was in a special relationship with the plaintiff…

     But the plaintiffs candidly acknowledge that, apart from situations involving custody, the Supreme Court has never applied a “deliberate indifference” standard merely because the State created a danger that resulted in harm.

     The [Supreme] Court has reasoned that the deliberate indifference standard relates to “[t]he ‘process’ that the Constitution guarantees in connection with any deprivation of liberty,” imposing on the government a “continuing obligation to satisfy certain minimal custodial standards.”

     But the … [Supreme] Court made clear that this standard does not apply to persons in an employment relationship with the government.

The 4th Circuit then upheld the trial court’s dismissal of the due process claim. The short explanation for the ruling is that the court found no due process violation was possible on the facts. Deliberate indifference in the employment context does not arise to the level of a due process violation in the absence of an “intent to harm”.

The court pointed out that if plaintiffs such as Ms. Slaughter were allowed to sue under § 1983 “the consequences of creating such an exception … based on the fact that the State created the danger would tend to constitutionalize virtually every state-sponsored activity that created or involved a risk of danger.”

No word on whether Ms. Slaughter will appeal to the US Supreme Court or refile her state law claims.

Here is the decision. Slaughter v Baltimore

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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