Town, firefighter cleared of liability

FI-greenwich-town-sealA wrongful death suit filed on behalf of Jacqueline Bardales Chirieleison against Greenwich and one of its volunteer firefighters has been resolved in favor of the town after a lengthy trial court process and a subsequent summary judgment.

The suit was filed following a 2007 Interstate 95 motor vehicle accident in which a car occupied by Jacqueline Bardales Chirieleison, Reynaldo Sanchez and Gerson DeLeon struck a fire truck manned by the Cos Cob Fire Police Patrol, resulting in the death of both Ms. Chirieleison and Mr. Sanchez.

According to court documents, on Sept. 30, 2007 at approximately 5:30 a.m., a vehicle driven by Rafael DeLaCruz struck a car abandoned on the shoulder of I-95 North between exits four and five. Mr. DeLaCruz’s car became engulfed in flames, prompting state police and the Cos Cob Fire Police Patrol, a volunteer organization operating under the town’s fire department, to respond to the scene.

Upon responding, volunteer firefighter Robert Lucas drove a fire truck to the scene, parking it across the interstate in a manner that shielded emergency personnel from highway traffic. At the direction of the scene commander, Mr. Lucas left the vehicle’s emergency lights on, then positioned the fire truck so that it blocked the right and center lanes of the highway, then exited the vehicle and, accompanied by another firefighter, placed warning flares in a line extending approximately 100 feet from the truck to the guardrail.

Upon deciding to additionally set up cones around the accident scene, Mr. Lucas and his fellow firefighter began walking back to the fire truck to retrieve the cones, as other emergency personnel responded to the scene. It was at that time that Mr. Sanchez, who was driving, as well as Mr. DeLeon and Ms. Chirieleison were traveling on I-95, returning from a dance club in New York City.

According to police and court reports, at approximately 6:09 a.m., Mr. Sanchez veered out of the way of the line of cars traveling in the left lane of the highway. His vehicle crossed the line of warning flares surrounding Mr. DeLaCruz’s accident scene at a high rate of speed and collided with the fire truck. Mr. Sanchez and Ms. Chirieleison died as a result of the accident, while Mr. DeLeon survived but suffered severe memory loss and could not recall any part of the incident.

Ms. Chirieleison’s death prompted her mother, Graciela Chirieleison, to file wrongful death action, containing three counts, against Mr. Lucas and the town. The first and second counts alleged negligence against Mr. Lucas and the town, respectively. The third count alleged nuisance against the town. And although trial court proceedings were concluded in favor of the defendants — Mr. Lucas and the town — Mrs. Chirieleison appealed the decision.

In her appeal, she claimed that the court had improperly concluded that the defendants were shielded from liability based on doctrine of qualified governmental immunity, meaning she believed that Mr. Lucas and the town had performed acts in which they had no room to make judgment calls, rather than discretionary acts., therefore proving their negligence. She additionally claimed that she had provided sufficient evidence to prove the town was guilty of the third count, nuisance.

According to Assistant Town Attorney Aamina Ahmad, Mrs. Chirieleison’s appeal went on for years until the defendants filed a motion for summary judgment in September 2011. By January 2012, the court had officially granted the defendants’ motion for summary judgment pertaining to all three counts, and ultimately upheld the trial court’s conclusion, in favor of the defendants.

In response to count one, the court disagreed with Mrs. Chirieleison that Mr. Lucas’ acts were ministerial rather than discretionary, arguing that he was shielded from liability based on the doctrine of qualified governmental immunity. According to the court, governmental acts are performed wholly for the direct benefit of the public and are discretionary in nature and, since all motor vehicle accidents present unique challenges and require various measures, Mr. Lucas had used his judgment in response to the accident, thereby making him immune to liability.

In fact, during appeal proceedings, Mr. Lucas testified that neither the town’s fire departments nor the fire police patrol had any written policies or procedures pertaining to the positioning of fire trucks or laying cones or flares in response to an accident, proving that his decision to park the fire truck across the center and right lanes of the highway was his own choice.

In response to count two, negligence against the town, the court noted that in a motor vehicle accident, the plaintiff, in this case Mrs. Chirieleison, can’t simply prove that a collision occurred and then ask the defendant to show evidence that the collision wasn’t a direct consequence of negligence on their part. They also concluded that Ms. Chirieleison’s death, along with Mr. Sanchez’s death and Mr. DeLeon’s memory loss, provided a total lack of evidence as to the direct cause of injury and that Mrs. Chirieleison had therefore failed to provide any facts that supported her claim of negligence.

In response to count three, nuisance, the court concluded that Mrs. Chirieleison had not provided any proof that the positioning of the fire truck had a natural tendency to create danger and to inflict injury on people or property. The court further concluded that there was no proof that the town’s actions were the direct cause of Ms. Chirieleison’s injuries or that it was unreasonable or unlawful to park the fire truck across the right and center lanes of the highway to shield emergency personnel. As public nuisance law is concerned with interference with a public right, a plaintiff must provide proof of four elements to succeed in a nuisance cause of action, and the court determined that Mrs. Chirieleison had not proven any of those elements, referred to in legal terms as “prima facie,” and had therefore failed to prove count three of her case.

Ms. Ahmad told the Post she believes the court made the right call on all three counts. Government workers, she said, are often put in situations in which they are protecting the public and working for the greater good, so they should not be held liable if something goes wrong, as they are serving a “bigger purpose.” People like Mr. Lucas are “on the front lines every day” and shouldn’t be held liable for something that, in hindsight, could have been done differently, she added. Emergency situations require personnel to make quick, in-the-moment decisions in the face of danger that should not be used against them when they were acting in the name of public safety, Ms. Ahmad said.

And while Ms. Ahmad said the town has always had an unwritten rule that it must protect its residents and employees if they exercise discretion, others used this case to ensure that future volunteer emergency personnel would not have to endure a similar liability battle.

Joe Kaliko, a Greenwich resident and president of the Cos Cob Fire Police Patrol at the time of the 2007 accident told the Post that Mr. Lucas’ predicament prompted him to advocate for legal action on behalf of volunteer emergency workers. Mr. Kaliko held a meeting with a number of town officials, including members of the Representative Town Meeting, asking that the town create a brief policy stating that it would back up its volunteer workers in liability suits, but the officials would not oblige, he said.

It was around this time that Mr. Kaliko met state Rep. Fred Camillo (R-151) at a legislative breakfast and explained the issue of indemnification. The duo teamed up to change the state’s liability law to include the protection of volunteer firemen and emergency medical personnel, in addition to paid employees, who were already legally covered. Eventually, the pair’s advocacy paid off and an indemnification statute protecting the unpaid emergency workers was put into effect in 2011, mandating that each of the state’s municipalities defend their volunteers, including the fire police patrol, Mr. Kaliko said.

As an added layer of security, Mr. Camillo and Mr. Kaliko also pursued and acquired insurance for the town’s fire police patrol. Now, its members have increased protection from any liabilities they might incur, Mr. Kaliko said, adding, “it’s worth every penny.”

With regard to Mrs. Chirieleison’s case, she has the option to petition it to the Supreme Court, but Ms. Ahmad said the town has heard no word of such plans being made.

Mrs. Chirieleison’s attorney, Bruce J. Corrigan Jr., was unable to return the Post’s calls for comment before press time.

 

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