NJ Appeals Court Denies Suit by Captain For Injuries Caused by Probationary Firefighter

The Appellate Division of the New Jersey Superior Court has held that a fire captain cannot recover for injuries he sustained that he claims were due to the incompetence of a probationary firefighter. The lawsuit was brought by Captain Robert Eckert of the Camden Fire Department.

The facts as explained in the ruling are as follows:

  • On January 31, 2018, plaintiff Robert Eckert, a captain in the City of Camden’s Fire Department, was injured responding to a fire along with two “probationary firefighters,” Achabe Quinones and Jose A. Berrios, both recently transferred to plaintiff’s fire company.
  • Quinones and Berrios were two of thirty-three probationary firefighters hired in May 2017.
  • In July, the Chief of the Department, Michael Harper, assigned two probationary firefighters to each of eight companies, including plaintiff’s company.
  • Seventeen years earlier, the Deputy Chief of Operations for the Department, Joseph Gforer, sent a memorandum to all battalion chiefs stating, “[a]s a matter of safety . . . [c]hiefs will make every effort to avoid staffing any company with more than one probationary firefighter.”
  • Although what exactly occurred at the scene of the January 2018 fire is disputed, plaintiff suffered serious injuries when the metal coupling on a firehose that was connected to a “live” hydrant flew into the air, striking him in the head.
  • Plaintiff contended the incident occurred when Quinones was left alone near a hydrant and improperly activated it as plaintiff carried or was in close proximity to the hose.

Here is a link to an earlier post about the original filing. Quoting from that post: “Captain Robert Eckert was injured January 31, 2018 when he was struck in the head by a hose coupling. The injury resulted from a probationary firefighter turning in a fire hydrant “improperly”. Captain Eckert claims he was hospitalized for 12 days and paralyzed for eight days. He also alleges that he would have been killed had it not been for his fire helmet.

Captain Eckert sued the city alleging a violation of the New Jersey Civil Rights Act (CRA). He contended  that the city violated his substantive due process right to be free from a “state-created danger” and had a policy, practice, and/or custom that shocked the conscience and was deliberately indifferent (akin to federal Monell liability) to his rights.

[NOTE: Some may question why Captain Eckert would make this convoluted type of due process claim, rather than a more straight-forward allegation that the city was negligent for assigning him two probies (or an incompetent probie). The answer lies in the defenses the city has to tort claims, including sovereign immunity, statutory immunity – and most importantly in this case: workers compensation exclusivity. Workers comp exclusivity is the result of the great compromise that made workers comp possible: in exchange for medical coverage and compensation when injured, employees cannot sue their employer or co-workers for negligence. Their exclusive remedy are the benefits available under workers comp. Exclusivity does not bar suits for civil rights violations or intentional acts. You will see this discussed in the court’s ruling quoted below. The term WCA as used by the Appellate Division refers to the Workers Compensation Act.]

The trial court rejected Captain Eckert’s claims, prompting him to appeal to the Appellate Division. The Appellate Division upheld the trial court, but on slightly different grounds. Quoting from the ruling (citations and quotations marks removed to make reading easier):

  • Before us, plaintiff [Captain Eckert] contends the judge incorrectly applied the WCA’s exclusivity provision to dismiss plaintiff’s complaint, and, even if the WCA applied to plaintiff’s CRA claims, for purposes of defeating summary judgment, plaintiff established that Camden’s conduct amounted to an intentional wrong.
  • We start by accepting arguendo plaintiff’s contention that the WCA’s exclusivity bar does not apply to constitutional claims brought under the CRA.
  • Recently, the Court stated more definitively, it is understood that state workers’ compensation exclusivity provisions do not bar claims brought under federal civil rights laws.
  • We assume, therefore, for purposes of this opinion only that the WCA exclusivity provision does not bar plaintiff’s CRA claims.
  • As a result, we need not address plaintiff’s argument that Camden’s conduct amounted to an intentional wrong, and N.J.S.A. 34:15-8 did not foreclose his complaint.
  • Herbert Leary, a battalion chief, was Quinones’ training officer at the fire academy in 2017. Leary found Quinones’ deficiencies to be a concern, which he voiced to others. After retraining, Leary certified that Quinones remained deficient in water supply, hydrant operations, hose lines, was unable to follow simple tasks, and had no sense of urgency.
  • Plaintiff argues he presented a prima facie case of a violation of the CRA because the evidence supported a cause of action under the state-created danger doctrine. We disagree.
  • Section 1983 applies only to deprivations of federal rights, whereas [the CRA] applies not only to federal rights but also to substantive rights guaranteed by New Jersey’s Constitution and laws.”
  • N.J.S.A. 10:6-2(c) provides a private cause of action for violations of constitutional or statutory rights by state actors.
  • Under the Due Process Clause of the Fourteenth Amendment of the United States Constitution, state officials may not deprive an individual of life, liberty, or property, without due process of law.
  • Article 1, paragraph 1 of the New Jersey Constitution contains a grant of fundamental rights and safeguards values like those encompassed by the principles of due process and equal protection.
  • For constitutional due process claims, New Jersey courts apply the standards developed by the United States Supreme Court under the federal constitution.
  • Plaintiff here contends that it is sufficient to sustain a cause of action under the state-created danger doctrine if the state actor acts with willful disregard for the safety of another, even if that conduct or inaction does not shock the conscience.
  • We reject that argument.
  • The United States Supreme Court had yet to recognize a cause of action for a due-process violation based on the state-created danger doctrine.
  • Viewing the motion evidence most favorably to plaintiff, a reasonable factfinder could conclude the harm ultimately caused to plaintiff was a foreseeable and fairly direct result of the decision to assign more than one probationary firefighter to a fire company, that plaintiff was a member of a discrete class of persons subjected to the potential harm brought about by that decision, and the Department affirmatively used its authority in a way that rendered plaintiff more vulnerable to danger than had the decision never been made.
  • Nevertheless, plaintiff fails to meet the second prong of Gormley’s test because no reasonable factfinder could conclude that when Camden assigned two probationary firefighters to plaintiff’s company, it acted with a degree of culpability that shocked the conscience.
  • Conscience-shocking conduct occurs if the state actor intentionally caused unjustifiable harm and never occurs if the harm arose from negligence.
  • Camden placed probationary firefighters who required more assistance and training with highly competent captains who, as plaintiff acknowledged in his deposition, enjoyed training and would be able to bring them up to par rapidly.
  • Plaintiff acknowledged that the placement of probationary firefighters was based on their level of experience and designed to help them develop to be better firefighters.
  • Although Chief Harper received complaints about having more than one probationary firefighter in a company, none of the complaints contained specific allegations regarding dangers that were created by or attributed to the placement of more than one probationary firefighter in a company.
  • The complaints merely expressed a belief that it would be safer if only one probationary firefighter were assigned per company.
  • In sum, the decision to assign more than one probationary firefighter to plaintiff’s fire company was not the outrageous, conscience-shocking level of culpable conduct or deliberate indifference required to prove a state-created danger claim under the CRA.
  • Here, plaintiff offered no proof regarding the insufficiency of Camden’s training program.
  • Indeed, Leary’s certification offered no criticism of the training he conducted but rather only criticized Quinones’ abilities.
  • This proof was clearly insufficient to sustain a CRA cause of action premised on Camden’s allegedly inadequate firefighter training program.

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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