Determining that a fire department’s actions or an investigator’s investigation was negligent is straightforward. The areas of contention are of a like kind to those in any other negligence suit. Did the fire department or investigator owe a duty of care to the plaintiff? If so, did they observe a particular standard of care while fulfilling their duty? Did they breach the duty of care by not observing the required standard of care? If there was such a breach, did it cause damage or loss to the plaintiff? Was such damage so far removed from the purview of the fire department or investigator that they were not responsible?
To take the first of these concerns: a fire department owes a duty of care to property owners to be careful in ensuring that its fire suppression efforts are conducted in a reasonable manner and without negligence. The courts look at the particular facts of each case to determine if a duty of care exists by applying a two-step test. First, a court asks if the harm that occurred was a reasonably foreseeable consequence of the defendant’s act. If the answer is affirmative, it then considers if there are any reasons, including policy considerations or other government activities, that ought to negate or limit the tort liability.
There was a time when governments were almost always held blameless in tort suits. However, government immunity became intolerable when the courts recognized that some government actions would been held legally liable if they had occurred between private citizens. The result is that, when considering whether the actions of a government body attract liability, courts now differentiate between policy and operational decisions. The former involve social, political and economic factors—such as deciding if a municipality will have a fire department. Operational decisions are the practical implementations of policy decisions—such as how the fire department will function. When a court decides that a policy decision created the incident that led to the lawsuit, liability typically does not attach. However, if a court decides that a decision is operational, the laws of negligence apply.
Whether fire suppression efforts or investigation are conducted in a negligent manner is determined by the second concern, the standard of care which the fire department or investigator is required to meet. Determining the standard of care requires asking an uncomplicated question: what would a reasonable and prudent fire department or investigator do in similar circumstances? In assessing the standard of care applied in a particular case a court takes account of all of the surrounding circumstances, including a municipality’s budgetary restraints. It will analyze a particular fire department’s circumstances, accepting that a municipality does not have to match a standard that should only apply to the best trained and equipped fire departments. However, the standard of care should reflect a quality of service consistent with the resources a community has made available for fire protection.
Given that approach, the courts ask another series of questions. What were the circumstances surrounding the fire? Were fire hydrants or alternative water supplies readily available? How many firefighters were there and what equipment did they have to use? Were they volunteers or professionals? How much training and experience did they have? What safety issues arose at the fire scene?
Courts have found fire departments negligent when they did not follow standard fire suppression and overhaul practices or chose to use firefighting methods contrary to the rules of caution in the circumstances. They have also found a fire department negligent when it failed to maintain current maps of its area and hence did not respond to a fire as quickly as it should have. A fire inspector who wrongly advised a plaintiff purchaser that a building complied with fire code regulations was also found negligent. (The plaintiff purchased the building but argued he would not have done so if the inspector had told him the building was not in compliance. The municipality was held liable for the costs incurred by the plaintiff to make the building conform to the code.)
On the other hand, a court did not find a fire department negligent when an inadequate water supply prevented it from extinguishing a fire; the municipality was aware of the water supply shortfall but its failure to rectify the situation was a policy, not an operational, matter. In another case, negligence was also not found when a fire reignited and spread to another property because the possibility existed that the fire may have been deliberately started.
In addition to the above considerations, a plaintiff must also prove that it suffered damages and that these resulted directly and immediately from the negligent action. In other words, the damages cannot be too remote. The question courts ask is whether the defendant could have reasonably foreseen that damage would result from its actions. The plaintiff must demonstrate that the fire department or investigator was responsible for the direct and immediate consequences of the negligence.