Some Aspects of Liability of Concern to Fire Departments and Fire Apparatus Drivers

To paraphrase Gilvert & Sullivan, “a fireman’s lot is not a happy one” if he tangles with the law. Several recent court decisions indicate that, contrary to popular impression, the right of way enjoyed by fire apparatus and other emergency vehicles has serious limitations. Here are a few cases which should give some food for thought.

In Kalamazoo, Mich., a fire truck responding to an emergency call collided with an automobile at an intersection. The city sued for damages to its truck, but the trial court directed a verdict in favor of the defendant because of contributory negligence on the part of the firemen. On appeal, the Michigan Supreme Court pointed out that the statute which gives emergency vehicles the right of way not only requires the sounding of an audible signal by siren, bell or exhaust whistle, but also stipulates that the operator has the duty to drive with due regard for the safety ot others.

In this case, even though the fire truck approached the intersection with its siren sounding, the facts showed that the lieutenant sitting next to the driver did not see the automobile until just before the collision. This, said the court, was a failure on his part to keep a reasonable and proper lookout for other cars. The decision against the city was affirmed. (City of Kalamazoo v. Priest, 40 N.W. 2d 52, 1951).

In Albuquerque, N. M., a pumper en route to a call for an inhalator hit a private car, which was crossing with a green traffic light, at an intersection. The occupants of the car sued, and several defenses were raised by the city. The court held that the exemption claimed by the city from compliance with the state laws only applies when a fire department vehicle is being driven in response to a fire alarm, and that an inhalator run is not covered.

Next, the city maintained that a fire truck answering a request for an inhalator is a public ambulance within the meaning of the New Mexico statute exempting ambulances traveling in an emergency. The court denied this contention flatly, saying that “the use of the fire truck to convey an inhalator to a sick person did not change the status of the truck and thereby make it an ambulance.”

Finally the city argued that its fire truck came within the law which gives the right of way to police and fire department vehicles when operated in official business. No, said the court, “the only official business designated by the legislature is that of responding to a fire alarm, or police call.” (Tiedebohl v. Springer, 232 P. 2d 694, 1951).

A case involving a bona fide ambulance had a different result in Broome County, N. Y. In response to an emergency call it approached an intersection. with the red light against it, at forty-five miles per hour, and collided with a taxi which had the green light and was going at about twenty miles per hour. The New York Supreme Court ruled that “the ambulance not only had the right of way but it also was not bound by the usual command of the red light, if driven with caution and adequate warning was sounded.” The ambulance won. (County of Broome v. Binghamton Taxicab Co., 96 N.Y.S. 2d 59, 1950).

To get back to fire fighters, the personal liability of a fireman arising out of an accident came up for decision in New Jersey. The town of Lyndhurst employed a driver for its fire apparatus who was involved in a crash with a private car and was sued personally. He lost the case, to the tune of $10,675. Then the fireman discovered a New Jersey statute which requires every municipality to insure drivers of fire and police apparatus. But the town of Lyndhurst had neglected to carry the required insurance. The driver then sued the town to compel it to pay to him so much of the judgment against him as would have been covered by insurance if the town had carried such liability coverage.

It was admitted that the fireman was an authorized driver for the municipality and that he was acting in pursuance of his duties at the time of the collision. Nevertheless, the New Jersey Supreme Court ruled that even though the statute required every municipality to take out public liability insurance, it did not provide a remedy for the individual employee who might suffer because of the municipality’s failure to do so. The fireman driver’s claim against the town was denied. (Osbach v. Lyndhurst Township, 81 A. 2d 721, 1951).

The wisdom and justice of some of these decisions may be open to question, but it would be beyond the scope of this article to embark on a crititcal, legal analysis of them. From a practical standpoint, these decisions are important to fire departments, large and small, and to individual firemen because they demonstrate the legal hazards which may be encountered in the routine performance of their duties.

Several steps can be taken to reduce these hazards, however. First, a thorough review should be made of the laws and court decisions of your state, and also of any applicable town or municipal ordinances, in order to determine the rights, duties and liabilities of the fire department and its personnel when traveling on public streets and highways in the performance of their official business. If it appears that the state of the law is not clear or that it places an unfair burden on firefighters, recourse should be made to the legislature for remdial action.

The courts can only apply the law as they find it, not as they think it should be. Hence if the law in your state needs change or clarification, the place to do it is on the legislative level, and the time to do it is now, and not after the next accident.

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