Liability for Injuries Caused by Fire Department Equipment
Opinions of Higher Courts on Subject and on When the Acts of Department are Ministerial or Governmental
VARIOUS higher courts have held that not only the municipality, but the entire state, is interested in the maintenance of law and order, and in the protection of property from fire and conflagration. Therefore, the interest of a municipality extends not only to a single community, but over the entire commonwealth.
Another important point of law is that while the employment of officers for the preservation of peace and property may be in the hands of the municipality, the duties of those officers are, and in their nature, should be governmental.
Ministerial vs. Governmental Functions
Briefly stated, a municipal corporation in the discharge of its administrative duties, is viewed in law as having two separate capacities. One is private or corporate. Acts done in the performance of a corporate function are termed ministerial or proprietary. The other is governmental or sovereign, in the exercise of which injuries may be inflicted on the person or property of a citizen, without liability on the part of the municipality, although such injury may have been the direct result of gross negligence on the part of municipal officials and employees.
For illustration, in the majority of states, the law is well settled that a municipality is under no obligation to provide a Fire Department, in order to protect the property of its residents. When a city provides itself with a Fire Department, it is a governmental function, and it is the recognized rule that the employees in the conduct and operation of the F’ire Department are not the agents and servants of the city, but that they act as officers charged with a public service, for whose negligence no action will lie against the city.
SUBJECTS TREATED IN THIS ARTICLE
Definition of Ministerial or Governmental Functions
Cases in Which City is Not Liable for Injuries
Exceptions Set Up by Some Courts
State Statute Valid Which Makes City Liable
City Officials Must Have State Statute Authority to Make Contracts with Other Municipalities
When Municipal Contracts Are Valid
State Law Controls the Liability of Municipality for Injuries
Limits of Liability for Injuries Defined
When City is Not Liable for Injuries
In order that readers may have opportunity to review actual circumstances, under which municipalities have been held not liable for injuries effected persons and property by Fire Department equipment, the leading cases of particular interest are as follows:
In Traction Company vs. Muncie, 133 N. E. 160, the municipality was held not liable for damages to a street car from collision with a fire truck. In Traction Company vs. Jennings, 123 N. E. 835, the municipality was held not liable for an injury to a passenger on a street car from negligence of the driver of the hose wagon which collided with the street car. In Bradley vs. Oskaloosa, 193 Iowa 1072, the municipality was held not liable for the death of a pedestrian struck by a fire engine returning from a fire. This case is unusually important, because the injury was effected while the Fire Department equipment was returning from a fire and, therefore, may have driven slowly and carefully.
In Mack vs. Charlotte Water Works, 181 N. C. 383, the city was held not liable for destruction of a house, because of the city’s failure to furnish adequate supply of water for extinguishing the fire.
Some Courts Take Exceptions
In Barners vs. Walb, 262 S. W. 1081, the city was held not liable for damages sought for the death of a doctor who had called at the station house to examine a fireman, and fell through an unguarded hole in the second floor. However, in some states the higher courts have taken exceptions to this law and have held that a municipality cannot be relieved from liability for injuries negligently caused citizens as a result of defective or dangerous Fire Department real property or premises. In Kies vs. Erie, 135 Pa. 144, and Walters vs. Carthage, 36 S. D. 11. the court held a city liable for an injury to a child who was hit by an engine house door, which fell to the sidewalk, upon the contention that the city was performing a ministerial duty in maintaining the fire station, and was bound to make the place safe.
While, as before explained, a majority of state courts hold municipalities not liable for injuries to person and property caused by operation of a Fire Department, yet not all state courts accept the consequence of nonliability in case of injuries inflicted by automobiles used bv the Fire Department. For illustration, in Raynor vs. Areata, 65 P. (2d) 838, a city was held liable for injuries sustained by a citizen whose car was struck at a street intersection by the Fire Chief’s car, being driven by the Chief, on his way to a fire outside the city limits.
As the result of the collision, the citizen was bruised and suffered severe nervous shock, and at the trial, some two years after the accident, testified that he was still suffering from the effects of the accident with severe headaches and nervous instability, which made it impossible for him to perform as efficiently the work he had been previously doing.
The injured person contended that inasmuch as the fire was actually burning outside of the boundaries of the city, the Chief was not then in the performance of his duties and the city therefore was not liable. However, the alarm was sounded from a box within the city and the Chief testified that it was his duty to respond to a fire alarm started within the city. Notwithstanding this contention, the higher Court held the city liable, and said :
“It is, without doubt, the duty of the Fire Chief to be at hand to protect property within the city, even conceding that the fire was burning across the line and outside of the city limits.”
According to this case if an alarm is sounded in the city, the fire department equipment is under the same legal duty and responsibility when going to a fire outside the city limits, as if it were going to a fire within the city limits.
Also, see Sacramento vs. Hunger, 79 Cal. App. 234, where the court said fire department equipment may not be driven with absolute indifference to others legitimately using such streets, or with reckless disregard of the lives and property of others, and the operators of such vehicles are not relieved from the duty of exercising the proper duty of care, when operating such vehicles over and along the streets of the city. The Court further said:
“As a matter of fact, inasmuch as such public automobiles are permitted to operate at an unlimited speed, a greater amount of care is required than in those cases where the speed of the motor vehicle is fixed by law.”
State Statute Controls Liability
Various higher Courts have held that a state statute is valid which specifically or broadly states that municipalities shall be liable in damages for injuries to persons and property caused by officials or employees while performing governmental functions.
For example, in O’Brien, 232 N. Y. S. 454, a higher Court held that a law providing that every owner of a motor vehicle operated upon a public highway shall be liable for death or injury to person or property, resulting from the negligent operation of such motor vehicle in the possession of such owner or otherwise included municipalities. This Court held the law applicable to fire department equipment.
Irrespective of state laws, any municipal official or employee who effects injury to another’s person or property may be held personally liable in damages. This law was upheld in numerous higher Courts, in which Fire Chiefs, and other officials, were held personally liable, where the testimony proved that negligence of the official caused the injury.
When Contracts are Invalid
Various higher Courts have held that if city officials contract, or make any agreement, with officials of another municipality, to supply l ire Department equipment for extinguishing fires, the municipality is not bound by a contract of this nature, unless the officials have valid authority to make such contracts.
Power or authority to make valid contracts may be granted by state laws, city charter provisions, or municipal ordinances authorized by state laws or constitutional provisions.
In fact a majority of state statutes provide that a municipal official cannot contract for a city unless specially authorized by law, or by an order of the City Council. Where the statute limits the power of the official, a contract binding on the city cannot be made by him, unless it is within the limitation.
Frequently, an implied power to bind the city is relied upon by officials, who endeavor to make contracts binding upon the city. However, if an implied power in an officer to bind the city by contract is relied on, it must be shown that such power is implied from some express authority conferred upon him. but, in the absence of proof of the express authority, the contract will not be binding on the city. The express authority can only be derived from state statutes or constitutional provisions.
Therefore, usually a municipal official or officer, assuming to bind the city by contract, must possess express authority for his power to represent the corporation in a contractual relation. A contract made without authority will not bind the municipality, unless, later, the officer receives such express authority and then ratifies the contract, or unless the unauthorized contract is ratified by some other board or officer having authority to make it. or unless, as often happens in the case of a contract made without authority in time of emergency, the subsequent conduct of the city authorities is held to constitute a ratification.
Obviously, however, these variations cannot often apply to contracts made by municipal officials to supply fire protection to property owners, or villages, situated outside the city limits.
Power of Governing Body to Contract
It is well established law that, unless otherwise specially provided by law and subject to such restrictions as are imposed by state statutes, the power to make municipal contracts resides in the Council, a Board of Trustees, or entire body, as the general governing body of the corporation.
Another important point of law is, that when making or authorizing a contract, the Council must act regularly as a board and at a regular meeting. In other words, the members individually have no power to bind the municipality. If the mode of exercising the power is restricted to certain methods, the power must be exercised in the prescribed method. Moreover, the power of a Council to contract in matters of official discretion must be exercised by the Council itself, and cannot be delegated to a member or committee thereof.
Still another important point of law is that a person, firm or other corporation municipality entering into a contract with a Municipal Council is bound to take notice of the powers of the Council, as conferred by the charter, and to inform himself whether the requisite preliminaries have been performed.
If the official or Council has no authority to make a contract, naturally he acts outside the scope of the employment and the city is in no sense responsible on the contract. Therefore, the city would not be liable for injuries effected by the Fire Department equipment, when going to a fire outside the city limits, if the officials had no authority to agree to assist in extinguishing fires in an adjoining village.
State Law Controls Liability
If a state law specifies that municipalities shall be liable for injuries effected by Fire Department equipment, the city cannot avoid liability by pleading the governmental function rule. See Maxwell vs. Miami, 87 Fla. 107, in which a Florida higher Court held a municipality liable for the negligent operation of a fire truck, and other automobiles used in going to fires, notwithstanding the Court admits that operating Fire Department equipment is a governmental function. This Court said:
“The operation upon the public streets of an automobile as a part of the fire extinguishment equipment of a city, is not such an essentially or exclusively governmental function as to exempt the city from liability for injuries to persons lawfully using the streets, when such injuries are solely caused by the grossly negligent manner in which the automobile is driven at a high and dangerous rate of speed upon the streets on which persons are lawfully traveling on foot or in permissible vehicles. While the right of way should be given to the passage of fire-fighting equipment, when a destructive fire is or is supposed to be in progress, however, the right of persons lawfully upon the streets may not be violated by the reckless driving of fire-fighting equipment automobiles.”
Liability Limits Defined
Some higher Courts have held that a municipality is not liable for injuries effected by Fire Department equipment going to a fire, but that it is duty bound to use the same degree of care as private individuals and firms to protect citizens from injury when coming from a fire.
For illustration, in Opocensky vs. So. Omaha, 101 Neb. 336, it was shown that an automobile maintained for the use of the Fire Department was being driven at an unlawful speed by a fireman who had been ordered by the Chief to test the machine. The city was held liable for an injury resulting from its unlawful operation.