Wrongful Death Suit Against Maine City and Firefighter is Dismissed

A wrongful death lawsuit against the City of Portland and a city firefighter over the drowning death of a man who was being pursued by police, has been dismissed. Eric Cohen died on April 12, 2020 after he jumped into the frigid bay waters.

Cohen’s father, John Cohen, filed suit claiming police and firefighters watched Cohen succumb to hypothermia and drown without taking appropriate steps to rescue him. Among the allegations, the suit accused firefighter Ronald Giroux, Jr., of yelling: “tell him we’re gonna kick his ass if he gets out of that water.” The comment was captured on police body cam. Here is earlier coverage of the case.

US District Court Judge Nancy Torresen concluded that there was no proof that Giroux’s comment could be heard by Cohen, nor that it “caused” his death. Quoting from decision:

• Here, the record shows that a firefighter identified as Giroux could be heard on police body cameras saying: “tell him we’re gonna kick his ass if he gets out of that water.”
• This statement was an affirmative threat of violence, directed at Cohen specifically, made just after Giroux arrived on the scene.
• This threat did not create the danger that Cohen faced of remaining in the cold water for an unsafe length of time, but it could have enhanced the danger specific to Cohen by deterring him from coming out of the water.
• To establish [liability], a plaintiff must show that the state actor’s conduct caused the plaintiff’s harm.
• Giroux’s conduct did not alter the course of events that followed in some significant way. Cohen, after committing two violent assaults, fled police and entered the water rather than submitting to authorities.
• He did not come out of the water despite being encouraged to do so.
• By the time Giroux arrived on the scene, Cohen had already been in the cold waters of the Back Cove for twenty minutes, with the rescue boat three minutes away.
• Giroux may have increased the risk to Cohen … but he did not alter the status quo in a way that amounts to causation.
• Moreover… based on this record, a jury would have to engage in impermissible “conjecture or speculation” to find that Giroux’s act caused Cohen’s harm.
• In order to show that but for Giroux’s threat Cohen would have survived, a jury would have to find that Cohen could have made the deliberate choice to come to shore while in a state of alleged psychosis, would have been able to get himself to shore after having been in the cold water for twenty minutes already, could have done so faster than the rescue boat ultimately did, and would not have died of hypothermia or drowning if he had started for the shore at the time the comment was made.
• In a case like this, where the harm was not inflicted by a third party, but rather was the result of the medical effects of prolonged exposure to cold water, proof that the affirmative act caused the harm becomes less obvious and exceeds the realm of common knowledge.
• While jurors may discern certain things without any improper speculation, for example, whether Cohen could have heard the comment or whether prolonged exposure to cold water generally may cause death by drowning or hypothermia, they would need to do more here.
• They would need to find that having been in the cold water for twenty minutes, Cohen could have exited the water on his own volition in the minutes following Giroux’s threat, and either that MEDCU personnel could have delivered life-saving care once they began attending to Cohen eight minutes after Giroux’s threat, or that he would not have needed their care in the first place, and therefore would not have died of drowning or hypothermia.
• This is because the harm-death by drowning or hypothermia-must have been caused by Giroux’s act- the verbal threat of violence-for Cohen to sustain his state-created danger substantive due process claim.
• On this record, jurors would have to engage in impermissible speculation to find this causal link.
• Cohen has not demonstrated a triable issue of fact on the causation requirement.

The court also rejected claims that the lack of an EMS transport vehicle staged on scene, lack of training or any tactical decision-making by firefighters or police was sufficient to violate Cohen’s due process rights, or give rise to liability for wrongful death.

Here is a copy of the complaint: