April Bamberg Aug. 31, 2014, 8:53pm

A woman says the negligence and conscious indifference of instructors and course designers of a smoke jumpers class led to the death of her husband two  years ago.

Penelope M. Smith filed suit July 31 in the Jefferson County District Court against the East Texas Firemen's & Fire Marshals' Association, the State Firemen's & Fire Marshals' Association of Texas, the Industrial Safety Training Council, Dennis M. Gifford, William N. Rains and John Does 1-10, for the wrongful death of her husband. 

According to court papers, the decedent, Neal Wade Smith, was a captain with the Atascocita Volunteer Fire Department who enrolled in a two-day smoke divers class in September 2012. The suit states that before the end of the final day, he collapsed and died during a training exercise.

“Neal Wade Smith was a Navy veteran, a captain in his volunteer fire department, and the sole provider for his wife and two children,” the suit states. “One weekend, he attended a firefighter continuing education class in Beaumont. He expected to learn advanced techniques in the use of oxygen tanks. What he got was deadly hazing and physical abuse.”

The defendants designed, taught and hosted the class that Capt. Smith attended, allegedly after “years of inflicting similar heat injuries on past students,” the lawsuit states.

The East Texas Association began offering a “smoke divers” training course beginning in 1996. According to the lawsuit, the objective of the class is for firefighters “to learn how to survive – while wearing full gear – if their oxygen tanks run out of air during a fire.” The suit says the association boasts that its courses are “extremely challenging” and an “intensely physical” experience.”

“Having completed the course themselves, the instructors approached the smoke divers training as a fraternity-style hazing to sort out which firefighters were tough enough to display the smoke divers’ completion badge on their uniforms,” the suit alleges.

The suit says Capt. Smith chose the smoke divers course in 2011, and began an “extensive training and fitness program,” including cardio workouts at a gym and bicycle riding, which resulted in a weight loss of nearly 80 pounds.

Houston attorneys Demetrios Anaipakos and Adam Milasincic of Ahmad, Zavitsanos, Anaipakos, Alavi and Mensing P.C., who are representing Penolope Smith, wrote that it was “one thing to labor through grueling drills in 120-degree temperatures while wearing sweat-soaked, 75-pound gear for two 10-hour days” and “another to do so while instructors threw firecrackers at him, ensnared him with bungee cords, yelled that he was a ‘p***y,’ and forced him to ‘cool off’ on metal bleachers on a sunny concrete slab,” the suit states.

In Smith’s class, medical issues forced evacuation of three students and caused six others to quit – saying the course wasn't safe, according to the suit.

The lawsuit claims students in the course were checked by paramedics only once during the two-day program, before any training activities commenced.

During the final training exercise in a six-story tower, Smith was allegedly on the second floor when he reported problems with his oxygen tank. The suit says he was rebuffed by instructors.

Then, according to the suit, the instructors told him to turn off the PASS system, the alarm that sounds when a firefighter quits moving. On the fifth floor, he allegedly began experiencing breathing problems and stumbled and had to kneel. Court papers claim instructors told other students to go around him.

It was several minutes after Captain Smith stopped responding before the course was cleared and paramedics evacuated him. By that time he had no pulse, the plaintiffs claim.

According to the suit, at the hospital, his internal temperature was 107.9 degrees and his skin was hot to the touch. He was diagnosed with hyperthermia, heat stroke, severe dehydration and complications of heat stroke. The next day, doctors pronounced him brain dead and removed life support. His organs were so badly damaged they could not be donated, according to the filing.

The Texas Fire Marshal and National Institute for Occupational Safety and Health investigated the incident and ruled he died needlessly and his heat injuries could have been prevented if defendants East Texas Association and ITSC had taken even minimal precautions, according to the suit.

The lawsuit alleges negligence and gross negligence on the parts of all defendants who showed conscious indifference to extreme risk. The lawsuit also includes a charge of wrongful death.

According to the complaint, the Texas Fire Marshal and the federal government investigated Capt. Smith’s death and concluded that defendants “chose to ignore routing safety concerns and obvious signs of heat emergencies, costing Capt. Smith his life,” the suit states. “Capt. Smith’s widow now asks a Jefferson County jury to right that wrong.”

Penelope Smith is seeking monetary relief over $1 million.

The plaintiff seeks a judgment against the defendants to include payment for all actual, consequential and incidental damages, exemplary damages, pre- and post- judgment interest at the allowed maximum and the costs of this case.

The website for the training facility includes a liability waiver that presumably is given to all participants but the suit does not state if Capt. Smith signed one. The waiver states, in part, "1. I understand the nature of the activities I may perform while involved in field training activities or observing, requires mental judgment and a high degree of physical fitness, agility, and dexterity, and that this may include strenuous exercise in varying environmental conditions which requires physical fitness, strength, and stamina. and 2. I understand that field training and observing involves the risk of injury or death, and I voluntarily assume these risks."

Jefferson County District Court Case D195-929

Marilyn Tennissen contributed to this story.


This is a report on a civil lawsuit filed at Jefferson County District Court. The details in this report come from an original complaint filed by a plaintiff. Please note that a complaint represents an accusation by a private individual, not the government. It is not an indication of guilt, and it represents only one side of the story.


More News