Bill Carey from Backstepfirefighter.com has posted on a very interesting fire out of Pennsylvania. The fire department took a defensive strategy pursuant to a “no entry rule” because the house had been condemned due to the dangers associated with the occupant being a hoarder (the Collyer Masion  problem), and the occupant died.

Bill has tossed the question to me for my consideration for an analysis of the liability issues. I am not going to address the specific laws of Pennsylvania – I’ll just touch on the general legal principles that apply. Certainly the specific laws of each state could influence which way a case like this could go.

The most likely avenue for someone to sue the fire department in this case is for negligence. Arguably there may be a Constitutional case (Section 1983 action for denial of due process) but that is probably a stretch. Occasionally some sharp attorney will try to bring a case like that to circumvent tort immunity laws but most are not successful. The attorney would have to prove that the department’s policy was intended to cause harm or constituted deliberate indifference – which is a very high burden – unlikely to be proven in this case.

The negligence analysis would focus on three vital questions:

• whether or not the fire department breached a duty to the victim
• whether or not the death was legally the result of the fire department’s decision not to enter (ie. proximate cause)
• whether or not the fire department had immunity

In terms of a duty to act, firefighters may have a duty to respond to fires, but not a duty to commit suicide. The question of whether or not the firefighters breached the duty would require an in depth  analysis of the facts in light of what the “reasonably prudent fire department” would have done under the circumstances. The next of kin of the deceased would have the burden to prove that the reasonably prudent fire department would have made an entry, and that the fire department’s decision not to enter constituted negligence.

In a similar vein – many states adopt a principle known as the public duty doctrine. Essentially the public duty doctrine holds that a fire department or firefighter cannot be held liable for any decisions or actions performed on behalf of members of the public to whom a general duty to act is owed. Liability can only be created when the fire department or firefighter owes the party a special duty. The creation of a special duty would require the fire department to have made some promise to the injured party that aid would be forthcoming, and the department would have to have known that the injured party was relying on that promise. On the facts it would not appear that the department owed the deceased a special duty. On the contrary the department made it known ahead of time they would not enter the structure in the event of a fire.

The next of kin would also have to establish that the fire department’s actions were the proximate cause of the death. Proving proximate cause in this case would be very difficult. Again the burden would be on the next of kin – and they would have to prove that if the fire department made the effort to enter the building to effect the rescue, the victim would have survived. It would not be enough to prove that by entering the building the fire department gave the victim a chance to survive. They would have to prove it more likely than not that the victim would have lived. Based on what we know that sounds speculative at best and certainly would prove to be a huge hurtle in court.

Lastly, most fire departments enjoy some level of immunity protection. The protections may be from what is left of sovereign immunity, or from statutory immunity. As a general rule, a fire department is more likely to have the benefit of immunity protection when acting in a policy making role than when acting in a functionary role. In other words, a fire chief setting policy is more likely to have immunity than a company officer making a tactical decision at a fire.

In this case, the decision use a defensive strategy was not a tactical decision made at the fire. It was a policy decision made by the department’s leadership. For that reason, it is more likely that the department will have the benefit of what ever immunity protection is available under state law.

So on balance, I would say that the fire department is probably in a defensible position in the event they are sued by the victim’s family. Like the Alameda, California case and the Edgewater, Florida case discussed recently – the duty to act and the failure to act pose significant liability issues for fire departments. These cases also create public relations and political issues as well. We will definitely need to track this case. More on the story.