Buffalo, N.Y. (WBEN) - The criminal investigation from the Erie County District Attorney's Office into the March 1 fire at 743 Main Street LLC that killed Buffalo firefighter Jason Arno has officially concluded.
During an extensive and detailed briefing on Thursday, John Flynn says there will be no criminal charges brought about as a result of the blaze that killed the 37-year-old after he had become trapped inside the building during the blaze.
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"At the end of the day, from a legal standpoint, it's clear to me and my team here that I cannot prove beyond a reasonable doubt in a court of law any crime of Criminally Negligent Homicide or Manslaughter in the Second Degree. I cannot prove any arson charges, as well," said Flynn during his press briefing. "The bottom line is no criminal charges are going to be filed against anyone regarding this matter."
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"Certainly the passing of firefighter Arno in the fire on Main Street was a tragedy for our entire community," said Buffalo Mayor Byron Brown on Thursday. "The DA has done his work, has made a determination. I certainly respect the determination of District Attorney Flynn."
Also listening closely and carefully to what the district attorney had to say was local attorney Terry Connors. He says it was quite clear Flynn had conducted an exhaustive investigation to determine whether or not there was any criminal liability, and whether or not violations of criminal laws took place.
"He concluded that did not happen, and he did indicate, though, they found some unfortunate aspects of their investigation that might lead to a finding of negligence, a finding of a violation of some of the codes, something like that that could spark the possibility, or the likelihood of a civil lawsuit," said Connors on Thursday in a conversation with WBEN.
According to Flynn on Thursday, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has officially ruled the fire as accidental, saying the cause was the application of an open flame of a blowtorch that caused combustibles inside a doorway to catch on fire. The combustibles mainly composed of bags of clothes that were inside the building on the other side of a half-inch piece of plywood covering a doorframe.
This took place when roughly between 7:36 a.m. EST and 8:17 a.m. EST when two workers from the contracting firm, JP Contracting, used a blowtorch and leaf blower, in conjunction, to melt ice and snow on the ground and on the brick of where they were set to do some masonry work.
The workers also used a metal shovel to not just shovel the snow and ice on the ground there, but also as a way to try and block the flames so they wouldn't hit the plywood. However, it wasn't enough for the flames, or a spark or ember from the blowtorch, to find its way into the building and igniting the clothing.
"They say it's common, they say it's done all time. It's stupid, if you think about it," Flynn said of the sloppy practice by the workers. "My wife's got a perfect phrase with this, and she uses it against me all the time when I do work at home, it's 'half-assed'. Obviously you're concerned about the plywood catching on fire, because you're blowtorching right next to it. I get that, but let's put up a full metal shield or something like that to the block the flames and sparks, not a shovel. It's stupid, but not criminal."
While the actions of the workers were not deliberate in any matter, that kind of negligence started the fire in the building that morning in March. However, Flynn says there were other intervening causes that ended up leading to the death of firefighter Arno, which is part of the reason why he ended up not pressing any criminal charges.
While the criminal aspect of this investigation is now concluded, Flynn does acknowledge there's a civil component here the Arno family can attack here. Connors agrees with Flynn, and expects there to be some sort of civil litigation as a result.
"All of the findings that the district attorney uncovered all lead to determinations as to negligence. Were their efforts reasonable? Were they consistent with the standard of care? You will see that they will be attacked, and they will be highlighted in a civil litigation on behalf of that poor hero firefighter," Connors said.
Arno's wife and his family have hired the services of attorney Charlie Desmond, according to Flynn, as they look to proceed accordingly with any civil lawsuits.
As part of the briefing on Thursday, Flynn said the JP Contracting firm that had the workers melting the ice and snow negligently around the building that morning was hired by former New York Congressman Chris Jacobs. Jacobs had bought the building back in December, and likely had intentions of renovating the building completely once the tenants were moved out.
At the time of the fire, only DC Theatricks, a local costume company, was occupying space in the first floor and basement of the building.
Connors expects if a civil lawsuit is going to be filed by the Arno family, there will be several entities as part of it, including the likes of JP Contracting and also Jacobs.
"Generally, in this situation, what you do is you survey the entire territory, and you look to not leave anyone out for fear that one of the remaining defendants would point the finger at someone else," Connors explained. "The civil negligence is a very broad concept, and you would try to attach it to as many individuals as possible, because it has to be sorted out by a jury. They have to have all the facts, all the people, all the players, all the corporations in it before they can make the final decision."
Civil litigation by the Arno family may also include the City of Buffalo, in some capacity.
During Thursday's briefing, Flynn pointed to a number of issues unders the umbrella of "permit issues" at hand with the contractors. While none of them rise to a level that becomes criminal and violate penal law, they are matters that potentially get handled in housing court in Buffalo.
However, it is alleged that JP Contracting didn't have a permit when they did the masonry work at 743 Main Street LLC. Flynn says they didn't think they needed a permit, because they thought it was an emergency job due to a recent earthquake, and the earthquake moving the bricks on the building.
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"They didn't get a permit, they didn't have a fire watch. If they would have gotten a permit, arguably they should have, then the permit office would have told them you need a fire watch. You need to have more than a shovel blocking the flames," Flynn said. "You need to have a fire extinguisher. Allegedly there was a fire extinguisher in the van that the two guys brought to the site, I can't disprove that or prove that, though, but there is evidence they brought a fire extinguisher and had it in the truck. There was no sprinkler system in the building at all, there was no fire alarms in the building, there was no extinguishers in the building at all. But again, those are all non-criminal issues. That, again, the the owner and the contractor have to deal with with the City of Buffalo."
While Connors did not touch base on any potential mishaps by the city that could lead to any civil litigation, the potential for the City of Buffalo to still be sued in a civil case presents a very interesting legal question.
"The firefighter was, no doubt, employed by the City of Buffalo. Will he be entitled to bring a third party action, or will it be covered exclusively by, what they call, the fireman's rule - the equivalent of workers comp for the fireman who lost his life? That remains to be seen as to whether the city will play any direct role," Connors said. "Whether they're brought in by some of the individual defendants who have sued directly, that's another question."
While Mayor Brown would not comment on any further civil actions taken by the Arno family against the city, he says officials are planning ahead to better address any future concerns of this nature.
"The city is taking all the steps that need to be taken. Certainly we do not want to see tragic occurrences like this, so we will be working across various departments to put even more things in place to provide safety and protection for our residents and municipal employees," Mayor Brown said.
Nearly two months ago, Firefighter Arno's wife did file a notice of claim against the City of Buffalo and the Buffalo Fire Department. According to this notice of claim, she is looking to receive compensation for loss of enjoyment of life, past and future lost wages, and reimbursement for funeral expenses.
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"Those allegations that are made against the fire department look to see whether there were rules or regulations that were violated that might impact upon their liability, or whether they would be able to claim the exclusive remedy that would be some type of compensation," Connors said. "We were involved in this for the poor Jonathan Croom case years-and-years ago. Those are some very tricky legal issues that have to be navigated properly."
More from Thursday's briefing into the investigation relating to the fire at 743 Main Street LLC is available in the player below: