The opinion of the court was delivered by: Emmet G. Sullivan, United States District Judge.
MEMORANDUM OPINION AND ORDER
On May 30, 1999, a fire claimed the lives of two firefighters and seriously injured three others. Plaintiffs in the instant case, two injured firefighters and the estates of two firefighters who perished in the fire, bring suit against the District of Columbia, the former Fire Chief and individual employees of the fire department for alleged constitutional violations and intentional torts giving rise to injuries and loss of life. Pending before the court is defendants' motion to dismiss.*fn1
Upon consideration of defendants' motion to dismiss, the oppositions and replies thereto, oral argument of counsel heard on March 20, 2003, and the relevant statutory and case law governing the issues, the Court finds that defendants' motion to dismiss is DENIED IN PART with respect to plaintiffs' claims brought pursuant to 42 U.S.C. § 1983 against individual defendants and the District of Columbia, GRANTED IN PART with respect to plaintiffs' claims brought pursuant to 42 U.S.C. § 1985 against the District of Columbia and individual defendants, GRANTED IN PART with respect to plaintiffs' claims of intentional torts against the District of Columbia, and DENIED IN PART with respect to plaintiffs! claims of intentional torts against individual defendants.
On May 30, 1999, a fire broke out in a townhouse at 3146 Cherry Road, N.E., Washington, D.C. The fire took the lives of District of Columbia Fire Department ("DCFD") firefighters Anthony Sean Phillips, Sr. and Louis J. Matthews. Firefighter Joseph Morgan suffered severe burns, and DCFD Lieutenant Charles Redding was also burned in the fire.
Firefighter Phillips was assigned to DCFD Engine Co. 10, and Matthews and Morgan were assigned to DCFD Engine Co. 26. Redding was an officer assigned to Engine Co. 26. The firefighters were responding to a multi-alarm fire on Cherry Road.
Firefighter Phillips entered the first floor of the residence with his officer, Lieutenant Cooper, as did Matthews, Morgan and Redding. After entering the building, Cooper was separated from Phillips. Cooper exited the building and subsequently learned that Phillips had not. When Redding entered the townhouse, he had been informed that the fire was on the first floor of the house. As the firefighters were inside the house, a truck arrived on the scene and began ventilating the front of the townhouse. A second truck then arrived and prepared to ventilate the basement.
While the firefighters were inside the house, the Incident Commander ("IC") twice radioed Redding to locate his position. However, Redding did not receive this transmission. The IC had not established a fixed command post and was relying on a weaker portable radio device rather than the stronger radio mobile. The firefighters inside the house were unaware of each other's presence. Communications were impaired and visibility was poor. Redding did not even have a hand light with which to illuminate the inside of the townhouse.
The improper and untimely ventilation of the house resulted in a sudden increase in temperature. Redding ran from the townhouse, with his face and back burning. He relayed to the IC that Matthews was still in the townhouse. Redding was unaware that Morgan and Phillips were also in the townhouse at that time. The IC did not order a rescue effort until approximately 90 seconds later, when firefighter Morgan exited the house critically injured. Firefighter Phillips was found unconscious and severely burned, and was removed from the townhouse approximately seven minutes after the rescue effort began. Matthews was found unconscious and severely burned approximately eleven minutes after the rescue effort began. Phillips died of his injuries approximately 23 minutes after his removal from the townhouse, while Matthews died of his injuries on the following day.
National Institute for Occupational Health and Safety ("NIOSH") investigators concluded that the DCFD did not follow standard operating procedures ("SOPs"). Specifically, the investigators found that there was a failure to properly ventilate the building and to coordinate personnel activities; that there was a failure to utilize the communication system effectively; and that there was a continuing failure surrounding the maintenance of self-contained breathing apparatuses as well as the need to provide all firefighters with automated personal alert safety systems.
The District of Columbia's Reconstruction Report mirrored the findings of NIOSH and restated criticisms articulated in a report published two years earlier. The earlier report focused on the 1997 death of firefighter John Carter in a fire at a grocery store. The Cherry Road report recognized that deficiencies in training, staffing, equipment and administration, noted in the Carter report, persisted and stated that "[f]urther inaction on these recommendations cannot be tolerated." The report concluded that "[t]he events that took place demonstrate the serious consequences that result from failure to train, equip, and staff appropriately."
Plaintiffs point to a number of deficiencies in the defendants' implementation of standard operating procedures, which they allege resulted in the death and injuries of the firefighters at Cherry Road. Phillips' complaint, for example, alleges:
"(a) the failure to follow appropriate equipment
backup procedures (Engine No. 12, as fourth-due engine
company, proceeded to the front of the structure and
took position. By so doing, Engine No. 12 did not
backup Engine No. 17, the second-due engine company,
in the rear of the structure);
"(b) the failure by an Officer-in-Charge (Defendant
Cooper) to maintain required contact with a member of
his crew, Firefighter Phillips, on the fireground;
"(c) the failure by Defendant Cooper to immediately
account for, report the fact of, and locate a missing
firefighter (Firefighter Phillips);
"(d) the failure by the D.C. Fire Department to have
sufficient personnel on the scene to perform
"(e) the failure to provide a size-up of the rear
conditions (a size-up of rear conditions was never
reported by Engine No. 17, the first arriving unit in
the rear); and
"(f) the failure to have an available backup unit in
service to replace Truck No. 13 which delayed
Phillips Compl. at ¶ 27.
Plaintiffs claim that "[s]uch policy and custom not to implement recommendations to improve operation of the DCFD and enforce SOP's was the product of a conscious and deliberate decision and not simple or negligent oversight made under emergency, spur of the moment conditions without either the opportunity or time for deliberation." Pls.' Opp'n at 8.
In this matter, four cases have been consolidated for all purposes:
Lysa Lambert Phillips v. District of Columbia, Civ.
Action No. 00-1113
Cassandra Brown Shields v. District of Columbia, Civ.
Action No. 00-1157
Joseph Morgan v. District of Columbia, Civ. Action No.
Charles Redding v. District of Columbia, Civ. Action
Plaintiffs Lysa Lambert Phillips and Cassandra Brown Shields bring suit on behalf of the estates of the deceased firemen, Phillips and Matthews. In addition, Phillips brings claims individually and as mother and next best friend of her two minor children, and Brown brings suit on behalf of firefighter Matthew's two minor children. Plaintiffs and firefighters Joseph Morgan and Charles Redding are firefighters who were injured in the Cherry Road Fire and bring suit on their own behalf.
I. Plaintiffs' Constitutional Claims
Plaintiffs' constitutional claims are asserted against the District of Columbia as well as against defendants Donald Edwards, Frederick C. Cooper, Jr., Thomas Tippett and Damian A. Wilk in their personal capacities.*fn2 Phillips and Redding allege constitutional violations pursuant to 42 U.S.C. § 1983 and 1985. Morgan and Shields assert claims pursuant to 42 U.S.C. § 1983 only.
Phillips and Shields each bring two claims of violations of constitutional and civil rights.*fn3 The first counts are characterized as "survival actions" brought by Shields and Phillips as the representatives of the dead firemen's estates. The second counts are characterized as "wrongful death" actions, with Phillips asserting the claim individually and on behalf of herself and her deceased husband's two minor children, and Shields bringing suit as the next best friend of Matthews' minor children.
2. Plaintiffs' Non-constitutional Claims for Intentional Tortious Conduct:
All plaintiffs assert non-constitutional claims for "intentional tortious conduct" pursuant to local and common law and seek compensatory damages. All plaintiffs bring such claims against the District and against Edwards in his personal and official capacities. In addition, Phillips brings tort claims against. Cooper in his personal and official capacities and Redding brings tort claims against defendants Wilk and Tippett in their personal and official capacities.
Phillips brings one "intentional tort" claim as a survival action, as representative of her husband's estate. She brings a second count as a wrongful death claim, on behalf of herself and her minor children. Similarly, Shields' complaint contains two tort claims against Edwards, one as a survival action, asserted as representative of her son's estate, and a second claim of wrongful death, brought on behalf of herself and her son's minor children.
All plaintiffs seek punitive damages for defendants' alleged intentional tortious conduct.
As personal representative of the decedent, Phillips asserts punitive damages against the District of Columbia and against Edwards and Cooper in their personal and official capacities. Shields seeks punitive damages for intentional tortious conduct by the District and Edwards in his personal capacity as personal representative of Matthews and on behalf of Matthews' minor children. Plaintiff Morgan seeks punitive damages against the District and against Edwards in his personal and official capacities. Redding ...