The city of Wilmington (Delaware) and its mayors’ “failure to care” and “indifference” led to the deaths of three Wilmington firefighters and serious injuries to another three in a row home arson in Canby Park in 2016, according to the latest round of court documents filed in a civil lawsuit in the case, obtained by WDEL.
In addition, the Plaintiffs’ Consolidated Answering Brief in Opposition to Defendants’ Motion to Dismiss, filed January 7, 2019 in federal court in Wilmington, asserted that the City of Wilmington is responsible for the “misconduct” of its agents, acting at the highest policy-making levels, and that defendants’ documents, including Motions to Dismiss, include “multiple legal errors that misstate settled law.”
All defendants, including former mayors Dennis P. Williams, James Baker, ex-fire chief Anthony Goode, former fire chief-turned-Emergency Management Director Willie Patrick, Jr., and the city of Wilmington, filed Motions to Dismiss firefighters’ and their families’ claims on October 15, 2018, citing a “failure to state a claim upon which relief can be granted.”
The early morning fire on September 26, 2016, killed Lt. Christopher Leach and senior firefighters Jerry Fickes and Ardythe “Ardy” Hope. Firefighter Brad Speakman was injured so badly, he retired; Senior Firefighter Terrance Tate also retired while Lt. John Cawthray, remains on the force.
Attorney Tom Neuberger, who filed the lawsuit on behalf of the plaintiffs, dismissed notions that the complaint is without merit and alleged a lack of water on the heart of the fire in the rear basement of the home led to a mayday call that would claim firefighters’ lives. He further asserts that the controversial rolling bypass policy, wherein a fire engine is taken out of service, to save costs, prevented hundreds of gallons of water from arriving on the scene within minutes of the fire.
“Seconds make a difference,” said Neuberger in an exclusive interview with WDEL, ahead of the complaint’s initial filing on August 16, 2018. “And there’s an old firefighter saying: ‘Put water on a fire and the problems go away’…all would’ve been prevented if the city had a policy of allowing water to get to the scene of the fire first. Why in the world are you sending a ladder truck?”
Those claims are reiterated in the Plaintiffs’ Response to the Defendants’ Motion to Dismiss.
“In the space of eight months in 2016, two children and three firefighters died, after years of dire warnings–all as a result of the rolling bypass and under-staffing policies in the [Wilmington Fire Department] and the delay these policies caused in the arrival off firefighters and water to any fire scene,” court documents said.
The plaintiffs’ response also noted that under the management of now-deceased Chief James Ford, politicians were not permitted to “meddle” with the safety of the Wilmington Fire Department’s operations.
“The chief took seriously his duties and responsibilities to protect the citizens and firefighters of the city,” court records said. “Morale was high, and the WFD operated within the budgeting parameters set for it by City Council. Most importantly, the WFD was open and honest in its representations to City Council.”
Neuberger asserted that way of thinking changed under Mayor Baker when rolling bypass was initiated; however, Chief Ford refused to comply with Baker’s order calling it “illegal” and “unnecessarily dangerous” to public safety.
“Its implementation would result in the needless, uncalled for, avoidable and preventable deaths of firefighters and civilians, and he would quit and retire as chief rather than implement it,” court records said.
Ford’s alleged strong statements delayed implementation of conditional company closures, until his retirement in 2007, when Patrick took over at them of WFD. Despite strong warnings from union officials, the policy was implemented in a way that included Mayor Baker misleading the public and city council, according to Neuberger.
“Defendants and their appointees repeatedly and falsely explained there would be no increased risk or danger to firefighters or citizens caused by the rolling bypass policy,” the response stated. “For example, defendant Patrick publicly stated there would be ‘no change or compromise’ when it comes to ‘[r]esponse times and safety.'”
Both Patrick and Chief Goode admitted later to the media in 2014 that “‘rolling bypass had increased response times and that those facts had been hidden from the public and city council,'” according to court filings.
Despite long-term use of rolling bypass, which aimed to save money, Neuberger’s court filings assert overtime costs “increased significantly.”
The response also cites the failures of the policy in Philadelphia, which has since rescinded its use.
Those independently named in in this lawsuit have previously declined comment or not returned comment in connection with this lawsuit. But upon the lawsuit’s filing, the city of Wilmington pledged to “aggressively” defend the lawsuit and called it an “inappropriate” response to the fire.
“There are no reasons at all for the city to feel guilt or shame. A grand jury has charged [Beatriz Fana Ruiz] with arson and multiple counts of murder in connection with this fire, and that person is awaiting trial,” said Purzycki on August 16, 2018. “Yet, despite the pending criminal prosecution, plaintiffs’ attorneys have filed a civil complaint seeking money damages from the city affecting all the citizens of Wilmington, but leaving unnamed the individual accused of intentionally setting the fire.
Fana Ruiz is slated to go to trial in March of 2019.
Mayor Purzycki disagreed that rolling bypass played a role in the firefighters’ deaths.
“The city sharply disagrees. An individual has been charged criminally with intentionally setting this fire. Again, facts matter, and the facts will demonstrate the disturbing nature of this lawsuit.”
Neuberger’s response also noted an independent report by the Centers for Disease Control’s National Institute for Occupational Safety and Health (NIOSH), which concluded, in part, the untimely application of water led to the firefighters’ deaths.
“For over eight years, the defendants refused to stop rolling bypass and were indifferent to the endless warnings they received of the deadly consequences of their reckless and misguided policies,” court records stated. “Legally ‘[w]hen such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking’ to the judicial conscience…and is a violation of due substantive process.”
“These extended opportunities to do better, protracted failure even to care, and deliberate indifference to protecting lives is illegal and truly shocking,” court records said.
Check out the full Plaintiffs’ Consolidated Answering Brief in Opposition to Defendants’ Motion to Dismiss:
Amy Cherry Reporting
Amy Cherry is the Assistant News Director and an investigative journalist at WDEL. She joined WDEL’s award-winning news team in 2010 from WBZ Newsradio 1030 in Boston and has received national accolades for reporting.