NEW YORK – The widow of a firefighter who died fighting a fire in Harlem has been told by the city that she cannot sue for lack of a safe work environment claiming that firefighting is inherently dangerous and that a burning building is not a place of employment.
The New York Post reports that Eileen Davidson, widow of Firefighter Michael Davidson, has been told that an employer cannot provide a safe workplace if the very nature of the work involves specific risks and hazards. The city also claims it did not have control over the circumstances that led to the fire.
Firefighters Michael Davidson, 37, was killed in a Harlem fire on March 22, 2018 after he became separated from his company. The fire began in the basement of a brownstone that was being used as a film set for the movie “Motherless in Brooklyn,” directed by Edward Norton.
Davidson was assigned to Engine Company 69 and became separated from other firefighters as conditions deteriorated.
The cause of the fire was determined to be heat from a boiler igniting nearby combustible materials, but that finding has been questioned by a former FDNY fire marshal who claimed the cause was due to the film company, Class 5 Films, having tampered with the building’s electrical system.
Eileen Davidson asked a judge to allow her to file a lawsuit in May, after the deadline, due to new information from a released fire inspection report showing the city was culpable in her husband’s death.
A lawyer for the city said in court papers that “without a doubt, the risk of running out of air and being overcome by smoke is the kind of specific risk of firefighting that is inherent in the very task of firefighting.”
The city also argued “a fire scene cannot be considered a place of employment within the meaning of the labor law.” The attorney added that the city would be “liable any time a firefighter is injured in the course of his employment.”
Court papers went on to state that the landlord adjusted the boiler a day before the fire and the film company, in agreement with the landlord, altered the building to conform to a movie set. The city had no control over the arrangements between the landlord and the film company.
Davidson’s petition to sue claims the city inspected the building three times before the fire and that a March report revealed that the sprinklers did not operate during the fire. The petition also notes that the building had open violations, including one for the boiler.
Davidson’s lawyer told The Post he will oppose the city’s response noting that firefighters are vested to a special right of recovery by law. Attorneys for the landlord and the film company did not comment.