Magistrate Recommends Dismissal Of Remaining Counts in Cap’n Nemo’s Case

A federal magistrate judge in Maine has recommended that the remaining counts in a controversial civil suit against the Tremont Fire Department and several of its members be decided as a matter of law in their favor.

The suit filed by Robert and Judy Cousins, owners of Cap’n Nemo’s restaurant in Tremont, accused the department and the firefighters of intentionally allowing their building to burn down in December, 2013. The US District Court for the District of Maine dismissed the suit in 2015, only to have it reinstated in September 2016 by the 1st Circuit Court of Appeals. Last year, the district court dismissed ten counts, leaving six counts as viable.

The underlying facts are worth reviewing. According to the court:

• On December 4, 2013, a fire of undetermined origin destroyed Plaintiffs’ restaurant and residence in Tremont, Maine.
• A notable feature of the premises was a 40-foot tower/lighthouse built by Plaintiff Robert Cousins within the existing footprint of the preexisting restaurant/residence.
• The fire began on the top floor of the tower.
• Including the ground floor, the tower was a five story structure.
• According to the report of the State Fire Marshal’s Office, Plaintiff Judy Cousins reported that the fire started at approximately 7:15 p.m.
• Robert Cousins told investigators that he attempted to put out the fire with a fire extinguisher, and told Judy Cousins to dial 9-1-1.
• The record reflects that a woman named Paula Farrell called 9-1-1 at 7:44 p.m., and reported that the top of the lighthouse tower was “all in flames-it’s all on fire-it’s all engulfed.”
• Upon receipt of Ms. Farrell’s report, an officer sent an emergency tone to the Tremont Volunteer Fire Department at 7:45 p.m., reporting that the tower was on fire.
• Fire Chief Keith Higgins of the Tremont Volunteer Fire Department, a defendant in this action, then directed volunteer firefighters to the fire scene, and told the dispatcher to call both the Southwest Harbor and Mount Desert Fire Departments for assistance at the fire scene.
• Chief Higgins and several volunteer firefighters from the Tremont Volunteer Fire Department arrived at the fire scene at approximately 7:49 p.m.
• According to Plaintiffs, Defendant Heath Higgins was the first firefighter to arrive at the premises, and he instructed Robert Cousins to leave, stating that he was now responsible (“I got it now.”).
• Robert Cousins asserts that at the time, he had almost succeeded in suppressing the fire with a single fire extinguisher and could have completed the job with one more extinguisher.
• Around 7:58 p.m., Fire Chief Samuel Chisolm of the Southwest Harbor Volunteer Fire Department, also a defendant, arrived at the fire scene with several volunteer firefighters.
• Several volunteer firefighters from the Mount Desert Volunteer Fire Department arrived at the scene at approximately 8:20 p.m.
• At or around 8:00 p.m., Southwest Harbor Volunteer Fire Department Deputy Chief Jack Martel arrived and his helmet camera was recording.
• Deputy Chief Martel asserts the footage depicts the tower fully engulfed with flames of more than 15-feet in height rising
• Although Judy Cousins was the first person to discover the fire, Plaintiffs have provided no reliable evidence of the time the fire started.
• At most, they dispute (without citing evidence) the assertion in the Fire Marshal’s report that Judy Cousins reported the start of the fire as 7:15 p.m.
• Although Plaintiffs assert that Robert Cousins told Judy Cousins to call 9-1-1 when the fire allegedly was small enough that Robert Cousins might have extinguished it with a hand extinguisher, there is no evidence of record that Judy Cousins made the call or otherwise alerted any member of the Tremont volunteer fire department before dispatch received the 7:44 p.m. call from Ms. Farrell.
• At his deposition, Robert Cousins testified that he should have taken a second extinguisher up the stairs and that the firefighters arrived four minutes later.
• As of 8:05 p.m., the entire tower was consumed in flames, which were visible through the windows in the lower levels of the tower.
• As described by Southwest Harbor Volunteer Firefighter Mary Ellen Martel, and depicted in photographs she took at the scene, flames were “at and/or exiting the windows at every level of the tower [and] the top of the tower was non-existent,” having been consumed by fire.
• By 8:44 p.m., the entire structure was ablaze and there effectively was no restaurant or residence to spare from destruction.
• According to Chief Higgins, after assessing the structure, the surrounding exposures/risks, and the location, magnitude, and progression of the fire, he determined that the tower may lack structural integrity, lacked a route of access that did not expose firefighters to potential electrocution, and presented a challenge that exceeded available resources (human, water, and equipment).
• Chief Higgins, therefore, directed firefighters to perform a defensive attack from the exterior of the structure.
• A defensive attack involves the application of as much water as effectively as possible from the exterior of the structure, to control, to the extent possible, the progression of the fire and to contain and eventually extinguish the fire.
• Defendants characterize the fire at Plaintiffs’ premises as difficult to access and rapidly expanding, and they note the risk that fire could spread to surrounding buildings, exposures, and neighboring properties.
• The Tremont and Southwest Harbor Volunteer Fire Departments applied thousands of gallons of water (approximately 40,000 gallons) to the structure and surrounding exposures through the use of multiple apparatuses and equipment, including several hand lines, an engine-mounted deck gun, and Southwest Harbor’s ladder truck.
• Linda Risley, a bystander with no affiliation to Tremont or Southwest Harbor, or their fire departments, took several photographs of the progress of the fire. Ms. Risley’s photos appear to be the earliest available photographs of the fire.
• Risley states that she took her first photograph at 7:54 p.m., ten minutes after Ms. Farrell’s 9-1-1 call, and five minutes after the arrival of the first Tremont firefighters.
• The initial photograph, IMG_6864, reflects that a serious fire was underway within five minutes of the arrival of the Tremont firefighters and that water was being applied to the structure.
• The record also reflects that water supply issues could have hampered the fire suppression effort. The Town of Tremont does not have pressurized fire hydrants.
• The Tremont and Southwest Harbor Fire Departments brought approximately 9,000 gallons of water to the fire scene.
• Subsequently, they relied on a “tanker shuttle” consisting of several tanker trucks and fire engines to collect water from the dry hydrants and transport the water to the scene.
• After applying the original 3,600 gallons of water to the fire scene, the Tremont Volunteer Fire Department’s tanker truck broke down on route to a nearby pond to get more water.
• After learning of the breakdown, Chief Higgins called immediately for tankers from the Trenton Volunteer Fire Department and Bar Harbor Fire Department to assist with the tanker shuttle.
• At approximately 8:15 p.m. the fire was still contained to the tower structure.
• Firefighters continued to apply thousands of gallons of water to the structure as consistently as possible, given the limited water supply.
• Around this time, something within the structure ignited, which caused the fire to expand rapidly.
• At 8:37 p.m., one of the firefighters reported that something was fueling the fire up the backside of the tower.
• The Trenton Volunteer Fire Department’s tanker truck and the Bar Harbor Fire Department’s tanker truck arrived to the fire scene at approximately 8:40 p.m.
• The Trenton volunteer firefighters and Bar Harbor firefighters set up portable dump tanks to hold water adjacent to the structure, but before they were able to fill each portable tank, embers from the fire fell onto and burned holes in the vinyl walls of both tanks.
• Without portable tanks into which the tankers could dump their water, hand lines attached to each tanker’s pumper applied the tankers’ water directly to the structure.
• This approach was necessarily less efficient because when the tankers were emptied, the tankers had to leave the scene to refill the tanks.
• At 8:41 p.m., Chief Higgins radioed the dispatcher and directed him to call the Regional Communication Center to request any available tankers go to the fire scene.
• By 8:44 p.m., the entire structure was fully involved in flames.
• Roger Audette, Defendants’ expert witness, has opined that the fire suppression efforts met or exceeded the fire suppression efforts expected of a reasonable volunteer fire department in the same or very similar circumstances and the defensive firefighting tactic employed by Chief Higgins and responding firefighters was appropriate and met the standard of care expected of a reasonable volunteer fire department in responding to the December 4, 2013 fire at Plaintiffs’ restaurant and residence.

Mr. and Mrs. Cousins, who were serving as their own attorneys pro-se, opted not to retain an expert witness. That failure proved to be fatal to their case. The magistrate concluded that without expert testimony, the Cousinses were unable to rebut the testimony of Augusta Fire Chief Roger Audette, who served as an expert witness for the defense. The lack of an expert impacted the negligence counts, the emotional distress counts, and even the constitutional due process counts.

As explained in the magistrate’s ruling:

• Plaintiffs challenge the techniques Defendants used to suppress the fire.
• Plaintiffs question the decision to employ a defensive rather than an interior attack and Defendants’ decision to apply water to the fire and nearby properties in the manner they did.
• While it is perhaps conceivable that certain firefighting approaches could be within common knowledge, proper firefighting techniques generally and which technique to apply in a particular case are matters that typically cannot fairly be considered as within the common knowledge of laypersons.
• To the contrary, firefighting requires a level of training and expertise that is not known to a layperson.
• Given the claims in this case (i.e., that Defendants should have used an interior rather than a defensive approach and should not have applied water to nearby structures or areas), expert testimony is necessary for Plaintiffs to establish the standard of care required and whether an alternative approach would have generated a different result.
• In other words, which approach Defendants should have employed to confront the fire on Plaintiffs’ property and whether a different approach would have produced a different result are topics that require expert testimony.

Here is a copy of the decision: Cousins v. Higgins_ 2018 U.S. Dist. LEXIS 108220

Congratulations to Chief Higgins and the other defendants in this case. It had to have been a tortuous five year ordeal.