Firefighter trainee Bradley Golden was killed while participating in a live-fire exercise when he and two other firefighters were trapped on the second floor of an abandoned house. The other two firefighters suffered burns.
According to news reports, the three firefighters were participating in a rapid intervention exercise in which they were playing the role of "victims" to be rescued by other firefighters. Firefighters had planned to set a fire in a steel barrel on the second floor, which would have generated smoke and heat only. However, prosecutors allege that Assistant Chief Alan Baird ignited a sofa on the first floor instead, which burned out of control, trapping the three firefighters on the second floor.
Oneida County District Attorney Michael Arcuri claims that this incident went far beyond mere negligence, to the point of recklessness. The exercise was conducted in an old wooden structure with only a single staircase and boarded-up windows. Thus, there was a highly flammable environment with limited escape routes. Arcuri contends that the fire was ignited in a couch, which was placed in the staircase. Further, he claims there was not a charged hoseline when the was fire started.
To compound the problem, Arcuri alleges that the three trapped firefighters were rookies who had not been trained in the use of self-contained breathing apparatus (SCBA). He questions why it was necessary to have three "victims" for the rescue exercise.
In February, prosecutors charged Baird with second-degree manslaughter and second-degree assault. Baird pleaded innocent to the charges at a Feb. 19 hearing. Prosecutors offered a plea-bargain agreement to Baird, which he turned down. The case is now awaiting trial.
The New York Penal Code (Section 125.15) states that a person is guilty of second-degree manslaughter when "he recklessly causes the death of another person." That raises the question as to whether Baird's actions were reckless. Recklessness is one of those subjective terms in the law that many courts have sought to define in innumerable cases involving virtually endless factual situations.
The Penal Code says that a person acts recklessly when "he is aware of and consciously disregards a substantial and unjustifiable risk. …The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in that situation." The person must be aware of the risk and make a conscious decision to disregard the risk of his activity.
As one court said, "Before a person can be held criminally liable … it must be proven that he engaged in conduct which involved a substantial and unjustifiable risk of death and constituted a gross deviation from the standard of conduct or care that a reasonable person would observe in that situation." Other courts frequently refer to the requirement of "substantial and unjustifiable risk" in their analyses. This is a higher burden of proof than would be required for criminally negligent homicide, which occurs when the defendant doesn't perceive the risk created by his actions.
Was this house burning a substantial and unjustifiable risk?
Obviously, there is an inherent risk associated with live-firefighting activities such as this house burning, but there certainly can be justification for doing it. Live-firefighting activities provide valuable training. The more difficult question is whether the training, as conducted by Baird, created a risk that was a gross deviation from that which a reasonable fire department would accept.
Did he conduct the training in a way that allowed substantial and unjustifiable risks? That will require a jury to compare the way in which this training exercise was conducted with generally accepted fire service standards for live-firefighting training. If there were a gross deviation from the safety precautions normally taken in this kind of training, then the jury might find Baird guilty. Its verdict should be based on whether it finds facts justifying a conclusion that Baird's actions created a substantial and unjustifiable risk.
In judging whether Baird acted recklessly, the jury might be asked to compare his actions with an industry standard. There are standards for conducting live-firefighting training exercises such as this, both in New York and nationally. The National Fire Protection Association (NFPA) 1403, Standard on Live Fire Training Evolutions, is the national standard for live-firefighting exercises. Following a 1982 training accident that killed two firefighters, NFPA began a process that led to the issuing of this standard in 1986. It addresses every aspect of a training evolution, from the acquisition of the property through the post-training critique and record keeping.
NFPA 1403 emphasizes firefighter safety throughout. It includes a number of specific requirements that are potentially relevant to this case. There must be adequate exits, and participants must be briefed in a pre-burn walkthrough. There are restrictions on the use of fuels such as debris found in the structure, which should not be used in order to prevent unanticipated burns. Section 4.4.14 specifically states, "No person(s) shall play the role of a victim inside the building." There are several provisions for providing both attack lines and backup lines. Section 4.4.10 requires that, "A building evacuation plan shall be established …"
The NFPA standards do not carry the force of law (unless specifically adopted by a state), so it is not necessarily illegal to conduct a house burning that fails to comply with every part of the standard. But they certainly serve as a valuable point of reference for a jury to use in judging whether a fire department's activities are reasonable or reckless.
Regardless of the outcome of the trial, this tragedy teaches some painful lessons about the critical importance of carefully planning and executing training exercises. The law does not prohibit house burnings, and recognizes that there may be acceptable risks involved with them. However, these risks must be limited to those which are reasonable and necessary.
Steve Blackistone, a Firehouse® contributing editor, is an attorney and a member of the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.
