Court Upholds Dismissal of Delaware LODD Lawsuit

Risk of injury or death is inherent to a firefighter’s job.
Lieutenant Ardythe Hope (left), Captain Christopher Leach (top), Lieutenant Jerry Fickes (bottom). (department photos)

Federal court agrees that risk of injury or death is inherent

DOVER, Del. (AP) – A federal appeals court has upheld the dismissal of a lawsuit against the city of Wilmington and several former city officials stemming from an arson that left three city firefighters dead and three others injured.

A three-judge panel on Wednesday agreed with a federal district judge who had ruled that the risk of injury or death is inherent to a firefighter’s job and that any increase in risk based on actions by city officials did not alter the fundamental nature of that risk.

The lawsuit was filed in 2018 by the injured firefighters and the estates and survivors of those who were killed.

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The lawsuit argued that a policy of “rolling bypasses” that took fire engines out of service in an effort to save costs led to staffing shortages and increased the risk that firefighters would be hurt or killed. The plaintiffs claimed that those cost-saving measures violated their substantive due process rights under the Fourteenth Amendment of the U.S. Constitution.

The appeals court noted that while a government employee can bring a substantive due process claim if the state compelled the employee to be exposed to a risk of harm that was not inherent in the job, the Constitution’s due process clause does not guarantee public employees certain minimal levels of safety and security.

It also noted that the judge had found no indication that the firefighters were compelled, either by threats of job loss or otherwise, to be exposed to such risks.

The judge also had noted in her ruling last year that the policies questioned by the plaintiffs were well known and had been in place for many years before any firefighters were allegedly injured as a result. Citing federal circuit rulings, the judge said that while the defendants may have a duty under state law to provide a working environment free from unreasonable risks of harm, they have no duty to do so under the Constitution.

Arson suspect Beatriz Fana-Ruiz was sentenced to 30 years in prison in December 2019 after pleading guilty to one count each of second-degree murder, arson and assault. She had been charged with six counts of first-degree murder, as well as assault, arson and reckless endangering.

Authorities said Fana-Ruiz was angry about her living situation and unhappy with her life when she set a fire in the basement of the row house where she was staying.

Lt. Christopher Leach and Senior Firefighter Jerry Fickes died at the scene after the first floor of the home collapsed. Senior Firefighter Ardythe Hope was hospitalized in critical condition for several weeks before she died.

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