By Scott Sandlin
The Albuquerque Journal
CARLSBAD, N.M. — Firefighters and rescue workers who responded to a “scene from hell” after a gas pipeline explosion near Carlsbad in August 2000 won the right from the New Mexico Supreme Court to sue for emotional distress two years ago.
Today, their attorneys begin trying to persuade a jury that they are entitled to damages from El Paso Natural Gas Company for what they allege was a lack of maintenance of its 50-year-old, 30-inch, highpressure gas pipeline that led to the explosion.
The fireball from the explosion killed a dozen members of an extended family camping by the banks of the Pecos River south of Carlsbad, including four children. It left a 20-footdeep crater 86 by 46 feet in size.
The first responders’ lawsuit described the scene in which “babies were burned and charred,” family members “suffered burns so severe they were unrecognizable,” and “one family member asked to be shot.”
The suit, which has been winding its way through the legal system for years, contends that the volunteer and professional firefighters suffered “severe trauma, injury and emotional distress” that has affected their personal lives, has resulted in frequent nightmares and flashbacks, and has been debilitating and traumatizing.
Opening statements are scheduled today before 5th Judicial District Judge Freddie J. Romero in Roswell in a trial expected to last five to six weeks.
A change of venue was granted from Carlsbad, where the lawsuit was filed on behalf of Christopher Lee Baldonado and 23 other volunteer and professional first responders.
Earlier lawsuits on behalf of the families were settled in 2002.
A judge’s first ruling in the case rejected the responders’ lawsuit, citing the so-called “fireman’s rule.” That rule limits the liability of an owner or occupier of property based on the idea that firefighters “confront a known peril with full realization of the risk.”
El Paso Natural Gas convinced then-trial Judge William Lynch that the case should be dismissed based on the fireman’s rule in 2004.
Lynch, now a federal magistrate judge, noted firefighters were not physically injured by the fire or explosion, and said any expansion of law allowing for recovery of damages should be changed by the state Legislature.
The firefighters appealed.
Each of three judges on the Court of Appeals panel that considered the claims said the firefighters case should go forward on the claim of intentional infliction of emotional distress, despite El Paso’s contention that New Mexico made no exception in its firefighter’s rule for reckless or intentional conduct.
“We think it is open to proof under the allegations of the complaint that (El Paso) was guilty of prolonged, systemic indifference to the potential failure of its aging pipeline system, and that it was not a question of if defendant’s pipeline would fail, but when and where,” wrote Court of Appeals Judge Joseph Alarid.
Judges Jonathan Sutin and Celia Foy Castillo agreed, for slightly different reasons.
“I see no reason to grant immunity to one who intentionally causes a fire to which a firefighter responds,” Sutin wrote. The New Mexico Supreme Court took a year crafting changes to the firefighter’s rule. In a December 2007 opinion, Chief Justice Edward Chávez wrote that the court was modifying earlier court rulings to allow damages if a firefighter can show intentional conduct or recklessness that exceed risks inherent in the firefighters’ professional duties.
“The potential injuries to the firefighter are the same, whether they arise from negligence, recklessness or intentional conduct,” Chávez wrote. “From a public policy viewpoint, we do not want to reward reckless or intentional acts by insulating defendants from liability.”
The decisions paving the way for today’s trial have not gotten a warm reception in all quarters.
“There is no doubt,” the Carlsbad Current-Argus editorialized, “responders witnessed human misery and death in horrible terms that day. But honestly, how does that differ in any substantial way from witnessing a similar scene where an explosion occurred at a house full of family and friends, after a doit-yourself homeowner tried unsuccessfully to fix his leaking gas oven?”
El Paso has paid millions of dollars in damages to family members.
And in 2007, El Paso Corporation agreed to a $15.5 million fine as part of a settlement with the U.S. Department of Justice and pipeline safety regulators, and committed to spending $86 million to modify the 10,000-mile pipeline system.
Press reports at the time said the company already had spent $225 million on monitoring and repair of internal corrosion, which the National Transportation Safety Board found was the cause of explosion.
Its 2003 report on the explosion said four major safety issues contributed to the tragedy: design and construction of the pipeline in 1950, the corrosion control program, the adequacy of the federal safety regulations on pipelines and federal oversight of El Paso.
But it is the human costs that the first responders’ attorneys will be focusing on as the case goes to trial.
Their experience, the lawsuit says, was “a searing, traumatizing experience” that has not gone away and has caused physical symptoms and recurrent nightmares and flashbacks .
The lawsuit says the firefighters - from Carlsbad, Otis, Loving and Joel fire departments - knew that there might be injuries or deaths, but even after arriving at the campsite, didn’t realize that human beings had been caught up in the flames. They gathered away from the 500-foot fireball because of the intense heat.
Then they found vehicles, and heard human cries.
The campsite had been transformed into an inferno.
“A father and grandfather were killed as they tried to run toward the truck in which (a young man) was trapped ... flesh fell off arms and faces and legs,” the lawsuit says.
The family had been camping near the site when the explosion occurred about 200 yards from their campsite. Some died at the scene. Others were rushed to area hospitals. None survived their injuries.
Copyright 2009 Albuquerque Journal