Will Lorraine report affect tenants' lawsuit?

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February 28, 2009

Will Lorraine report affect tenants' lawsuit?

Lawyers differ over references to building conditions

By Richard Gaines The Gloucester Daily Times Sat Feb 28, 2009, 05:43 AM EST

The After Action Report into the fight against the Lorraine Apartments building fire of Dec. 14 and 15, 2007, contains harsh judgments about the effectiveness, if not the effort, and created the context for fire Chief Barry McKay's announced retirement.

Whether the report by Municipal Resources Inc. — which also had strong words for the owners and their lack of attention to required diligence — plays a similar role in the civil litigation over the fire won't be known for a while.

Superior Court Judge Leila Kern has scheduled an April 30 hearing on cross summary judgment motions filed by the plaintiff, Shanna Schultz, on behalf of more than dozen fellow tenants of the Lorraine, and the defendants, owners Gary Raso and Daniel Gatinerri, organized as Middle Street Partners LLC.

The $10,000 review, commissioned by Mayor Carolyn Kirk after she took office in January 2008, was released by the mayor Thursday after weeks of careful review of the document. The release was accompanied by McKay's retirement letter.

The assignment of the researcher-authors — George Klauber, the fire chief in Derry, N.H.; Alan Gould, the emergency management director in Rye, N.H.; and Donald Bliss, the former New Hampshire fire marshal who is nationally credentialed on emergency management — was to examine and evaluate how the city responded. The eight-alarm Middle Street blaze was the most powerful and dangerous to traumatize Gloucester in recent memory; it took four days to fully extinguish, and was hot and wild enough to scar all surrounding buildings and destroy Temple Ahavat Achim, which stood close by the Lorraine's east side.

But the examination could not avoid an assessment of the circumstances the firefighters confronted when they arrived to investigate a call from a resident who reported smoke, but no fire.

The physical assessment led to a review of the conditions in the four-story wood structure and confirmed published reports in the Times that the building had not been made as safe from fire as prudence, law and city policy intended.

When the fire broke out — probably in the basement, the report speculated — the Lorraine had been without a safety inspection, an occupancy permit or fire alarm inspection for longer than legal. The fire alarm system also didn't work correctly, the team from Municipal Resources reported.

Yesterday, the sides in the litigation disagreed on the relevance of the findings.

"The findings ... substantiate everything alleged in Mr. Schultze's lawsuit," the plaintiff's legal team said in an e-mail, "from the lack of inspections to the inadequate fire alarms and egress issues that have long been at issue."

But Kevin Kenneally, attorney for Raso and Gatinerri, read the findings differently.

"My preliminary reading," he said in an e-mail, "confirms that the property owners had no role in the cause of the fire and the unfortunate outcome. Nothing in the report casts blame on my clients, and the pending summary judgment hearings that will resolve these issues."

On Schultz's behalf and that of the other former tenants who are ready to join the suit to make it a class action should the judge reject the defendants' motion for summary judgment, attorney Ana Crnilovic has based her claim on the legal theory of a "warrant of habitability."

That's the presumption that a property owner has kept rental apartments in code. To fail to do so and still rent is, according to the legal concept, a "fraudulent inducement."

"Defendants were making money hand over fist on the non-conforming use," Crnilovic said in a filing to the court late last year, "and showed no gratitude to the city or to the tenants, as will be most definitely shown at trial."

Kenneally, meanwhile, has countered that the owners did not cause the fire or inhibit the evacuation, so they caused no harm or compensatable damages.

Long before the sides get to fight out their conflicting theories in Lawrence Superior Court, the city of Gloucester will begin reforming its Fire Department. Kirk said she intends to name an interim chief Monday; McKay's retirement is effective March 29.

Kirk made clear she saw the response to the fire as emblematic of the deep dysfunction within the department, with McKay isolated from his core deputies and the rank-and-file firefighters.

"The lack of day-to-day coordination set the stage for the lack of coordination that night," she said.

"It's time for reflection by the chief, the deputies, the captains, the officers, the community, for the mayor's office, the community at large," Kirk said, "We all have to come to our own conclusions."

Richard Gaines can be reached at rgaines@gloucestertimes.com