January 23, 2005, became known as “Black Sunday” in the Fire Department of New York. On that day, three firefighters lost their lives in two separate fires. Many other firefighters, including Eugene Stolowski and Brendan Cawley, were seriously injured.
Stolowski and Cawley were fighting a multi-story fire in Brooklyn when their team became trapped by the flames. Without adequate ropes, members of the team began jumping the 50 feet to the ground. A lieutenant did so, and perished. Stolowski threw Cawley, who had less than a month on the job, out a window, and then jumped himself.
Cawley suffered fewer injuries – broken ribs, a concussion, and lung damage. Stolowski’s legs and ribs were fractured, his shattered pelvis was pushed out from his torso, his heart stopped, and his skull had become detached from his spine in what doctors said was an internal decapitation. Twelve surgeries and years later, Stolowski returned to the job, as did Cawley.
The firefighters sued the City, contending that the City had violated New York’s Public Employee Safety and Health Act, which imposes a general duty on an employer to provide employees with “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees.”
The City filed a motion to dismiss the lawsuit, arguing that “it did not negligently violate any relevant government provision or that, if it did, the violation did not directly or indirectly cause plaintiffs’ injuries.” The Court refused to dismiss the firefighters’ claims.
The Court noted that “there is evidence, including testimony and an investigative report, that the failure to issue personal ropes to the firefighters contributed to the injuries and deaths suffered when the firefighters jumped from windows using either no safety devices or a single rope that had been independently purchased by one of the firefighters.
“The City is also not entitled to dismissal of these claims pursuant to governmental function immunity, since the evidence concerning the removal of existing personal ropes in 2000, and the failure to provide new ropes in the period of more than four years from then until the fire giving rise to these claims, raises issues of fact concerning whether the absence of ropes actually resulted from discretionary decision-making – i.e., the exercise of reasoned judgment which could typically produce different acceptable results. We do not consider the City’s argument that the investigative report is inadmissible, which was improperly raised for the first time in its reply brief.”
Stolowski v. 234 East 178th Street, LLC, 2015 WL 869346 (N.Y. A.D. 2015).