Lawsuit by Firefighters' Widows Could Expose Raw Nerves

Civil Suit is Raising Questions

SHAUN SUTNER
Reprinted with Permission, Telegram & Gazette

WORCESTER -- It inspired a presidential visit, an outpouring of compassion and a prolonged period of public mourning.

Now the lawyers have entered the picture in a big way.

Along with criminal proceedings, the blaze at the vacant Worcester Cold Storage warehouse has spun off its first civil lawsuit: a negligence action against the building's owners, filed by the widows of three of the six city firefighters who died in the Dec. 3 conflagration.

Unless it is settled right away, the suit is sure to dredge up painful issues that have largely been dormant since the fire, touching raw nerves in an already traumatized city.

“At a minimum, it would force the entire community to relive in excruciating detail the events surrounding this tragedy,” said state Sen. Robert A. Bernstein, D-Worcester, who is a lawyer. “That certainly would be unfortunate, but unavoidable, if it gets that far.”

In fact, the lawyer for the defendants, Ding On “Tony” Kwan and his wife, Shu May Kwan, has already alleged in court documents that the actions of the firefighters were themselves contributing factors in the men's deaths.

Fire officials say that while an examination of their role in the context of civil litigation is unfortunate, they are prepared to endure one.

“The lawyers will take it the way they want to take it,” said Deputy Chief Gerard A. Dio, chairman of an internal Fire Department board that is pursuing its own inquest into the blaze.

“We have made provisions for all possibilities,” he added. “We're prepared to answer any questions. That's the nature of the game.”

In the months to come, the strategy of trying to shift the blame from Mr. Kwan to other parties is likely to give rise to many questions -- about decision-making by fire officials, about the adequacy of equipment and about training and procedures.

“At some point I would hope for some closure, but all those issues are going to be litigated,” said Daniel M. Wrenn, a Worcester lawyer who has represented many defendants in civil lawsuits. “At some point I expect they're going to point to things that could have been done differently.”

According to local legal observers, the success of the suit -- and the likelihood of others -- may hinge on a comprehensive federal inquiry into the fire. A report by the National Institute of Occupational Safety and Health, expected sometime this summer, will address whether mistakes were made in fighting the fire.

As the widows' civil action moves forward so, too, will the criminal case against the two homeless people charged with manslaughter in the deaths of the six firefighters. It likewise will shine a potentially harsh light on the tragedy.

Already, the case has put the emphasis on issues involving homelessness and abandoned buildings, producing a muffled debate about blame and responsibility. The defendants, Thomas S. Levesque and Julie Ann Barnes, are said to have started the fire by accidentally knocking over a candle during an argument; they are due back in court on Thursday.

Finally, it would be hard to ignore the possibility of further suits.

In the immediate aftermath of the blaze, parallel situations in other cities were a subject of discussion and speculation. In Seattle, where a similar warehouse fire killed four firefighters in 1995, a jury awarded $5.6 million last year to one of the firefighter's widows on the grounds that the city should have anticipated the tragedy.

But the prospect of legal action against Worcester is tempered by a $100,000-per-plaintiff cap on municipal liability in Massachusetts and by wide-ranging immunity from lawsuits for fire and police departments.

Hector E. Pineiro, a lawyer who won $400,000 from the city in a civil rights lawsuit in January, sees no reason to expect action against Worcester on behalf of the firefighters' survivors.

“They rushed into that building and put their lives on the line after they heard people may have been in there,” Mr. Pineiro said of the firefighters.

Still, City Solicitor David M. Moore stands ready to mount a defense.

“We know that after incidents like this, lawsuits frequently happen, and we know this is a possibility,” Mr. Moore said.

Mr. Moore noted that before taking a negligence suit to court, a complainant must first file a claim with the city. “We have received no such claims,” he said.

But experts note that there is considerable potential for difficult inquiries, even with the two proceedings already under way.

In a sign of the high moral and financial stakes riding on the criminal and civil cases, the Kwans, Mr. Levesque and Ms. Barnes are all represented by high-powered lawyers who are certain to mount top-flight defenses.

The Kwans' insurance company has hired a prominent Boston civil litigation lawyer, Leonard H. Kesten, to help defend the case. Mr. Kwan also has a personal lawyer, David H. Gibbs of Boston.

Asked to discuss the suit, Mr. Gibbs issued the following statement: “Tony Kwan remains saddened by the tragedy and is concerned for the six families and their well-being.” He would not speak further.

Yet the response Mr. Kesten filed to the complaint by the three widows is an indication of issues that will be raised in court. It states, among other things, that no financial damages should be awarded because the negligence of others was “greater than the alleged negligence of the defendants and that such negligence ... contributed to their injuries.”

Meanwhile, Louis P. Aloise, a lawyer for Ms. Barnes, and Edward P. Ryan Jr., Mr. Levesque's attorney, have made it clear that they will question whether there is sufficient cause to charge their clients with involuntary manslaughter in the deaths.

Even early on, there were signs that post-fire controversy would take on legal overtones. As several charity funds grew rapidly over the winter, the firefighters' families retained lawyers to represent their interests.

When it appeared uncertain last month whether a $6.4 million fund collected by the Telegram & Gazette would end up entirely in the families' hands, their lawyers pressured the newspaper to move quickly. Now, six $1 million accounts have been set up by the newspaper to meet the needs of the six families.

As for the civil suit -- filed April 21 by the widows of Firefighters Timothy P. Jackson and Jeremiah M. Lucey and fire Lt. Thomas E. Spencer -- there are several possibilities.

Some lawyers predict an out-of-court settlement, saying it would be in the interest of the defendants to resolve the matter quickly, in order to avoid negative publicity and the inevitable sympathy for the widows.

Several lawyers interviewed for this story said, however, that the case against the Kwans will be challenging in the absence of any legal charges against them and the apparent lack of clear evidence of wrongdoing.

“If this kind of case ever really does go to the jury, one would think that these widows, presented as plaintiffs, are going to have such an emotional impact that the jurors are going to be kind to them,” said Peter Ventura, a city lawyer who represents plaintiffs. “But if you look at the sterile facts and remove the emotions, it could be a harder case.”

For this reason, many expect the defense to seek a change of venue to another community.

At the same time, the plaintiffs' lawyers may have some fodder to work with. The suit alleges that the owners knew homeless people were living in the building and did not do enough to keep them out.

The plaintiffs' lawyers are probably well aware of a previous fire at the location, seven months before the Dec. 3 blaze, that was also thought to have been started by squatters.

Moreover, Mr. Kwan was cited by the city several times over the building being unsecured, although he corrected the problems after being notified about them.

The lawyer for the widows, Amy G. Wanger of Winchester, did not return several calls seeking comment this week. In an earlier prepared statement, Ms. Wanger said the lawsuit raised broad issues.

“This lawsuit is about public safety in relation to vacant and abandoned buildings ... If just one owner of vacant or abandoned property learns of this lawsuit and, as a result, takes corrective steps to secure such property, we will consider our actions to be successful,” the statement said.

One question that remains is whether family members of the other three deceased firefighters -- Paul A. Brotherton, Lt. James F. “Jay” Lyons and Joseph T. McGuirk -- will also sue the Kwans.

Lawyer Robert J. O'Keefe, who represents Firefighter McGuirk's widow, Linda, says it is unlikely that his client will initiate a similar action.

“Not in the immediate future, if ever,” Mr. O'Keefe said. “First of all, there are a lot of questions to be answered, such as liability, damages and ability to collect.”

Mr. O'Keefe said a civil action against the city by his client is highly unlikely. “Why would the city be liable?” he said. “They're a well-trained department, and they know what they're doing.”

Before proceeding any further, Mr. O'Keefe said, he wants to see the report from the NIOSH inquiry.

Sen. Bernstein, for his part, urged people to refrain from jumping to conclusions.

“No one in our community should stand in judgment of anyone involved in this,” he said. “They all have the rights and opportunities available to them, and I don't think it's productive to do any finger-pointing.”