Who Is Responsible for Incidental Damage to Property During A Rescue Effort?
Who is responsible for incidental damage to property during the course of a rescue effort? A resident of Bakersfield, California filed a complaint against the Bakersfield Fire Department claiming damages of approximately $9,000, after firefighters damaged his drive way, some metal fencing and a clothesline during a rescue.
Ray Costa called tree trimmers to trim an 80-foot palm tree in his yard. One of the tree workers got stuck. The Bakersfield Fire Department was called to rescue him. The firefighters brought a ladder truck to the scene and into Costa’s driveway. Access to the victim was difficult and the truck was repositioned three times during which Costa’s driveway (and his neighbor’s) was damaged.
Finally the worker was rescued by fellow tree workers who went up the tree and helped the stranded worker to come down. Costa alleges that the two hours spent by the fire department was destructive and a waste of time.
The city has denied liability, citing the fact that said that Costa hired the tree trimmers and the fire fighters were acting within their duties. The city’s position is that any claims Costa has should be made to his homeowners’ insurance. Costa is refusing, stating that will lead to higher premiums, plus he will have to pay the deductible for no fault of his own. Costa seeks damages and an apology from the city for the way in which the situation was handled.
So what do you think? Who should be liable? Would it matter if Costa told the fire department not to bring the ladder truck up his driveway (and why would that matter… hint… hint?
[youtube]http://www.youtube.com/watch?v=YLt2BTywWMQ&feature=player_embedded[/youtube]
OK I will take a stab at it! Did they obtain permission to enter the property? Was the homeowner denying their entry? The line between consent or implied consent from an EMS perspective (as many are familiar with) would seem to play a role here as well. The fire dept. was called regarding a individual stranded, this is a life safety issue, they had a duty to act, in which they did however unsuccessful. Damage was incurred to the homeowners property who hired the company. Sounds to me there is no liability to the department. However I am aware of departments who charge for “special” or “technical” rescues it sounds like the homeowner should “charge” the company for the repairs. This is a first for me and just another sign that we no matter what we are doing we incur a level of liability that sometime can not be avoided.
Can he prove that the equipment was not operated properly, which contributed to the damage?
Can he prove that the fire department knew that damage was likely and that alternative methods were available, acceptable (in terms of safety, resources needed, etc), and less likely to cause damage?
I agree that public services (be it government, private, emergency or non-emergent) shouldn’t be liable for every little bit of damage done, however a “this is how we always do it, so if it causes damage then tough” attitude (which is common among emergency responders) isn’t a proper course of action when valid alternatives exist.
I think the liability lies with the tree service. It was their worker that became trapped. I know from working in industry, that time is of the essence when trapped in a high angle situation. I don’t know what this worker had for a harness or how he was positioned, but it is necessary to make a rescue as quickly as possible; therefore, I find it difficult to fault the FD here. They made an attempt with the tools at their disposal and it didn’t go as planned. Why didn’t the other tree service employees attempt a rescue sooner? I’m not sure if it matters that the home owner requested the FD not to bring the truck onto the driveway. I know that FD’s have significant leeway when there is an actual fire, I’m not sure in this instance. (I’m also not a lawyer)
Good perspectives so far. I don’t want to give away the full analysis just yet – but you folks are hinting at several possible grounds for liability, some based on fault (eg.Joe), some based on contract (eg. Mike), and some based on no fault (eg. PJ).
Each of these are valid grounds for liability. Of course the other side of the equation is defenses and immunities – that may also play a role in whether the FD or the tree company would be liable – but you guys are right on.
What do we call the fault-based liability? How about the no-fault liability? Why might the owner’s objection be relevant to the no-fault grounds… or would it be?
The contractor should be liable for the damages, as it was their worker whose welfare was endangered. This is why you hire a reputable contract or and not some guy off the street. A legitimate business will avoid this scenario by training and equipping their workers properly, and will have insurance to cover damages and injuries resulting from accidents. But $$$ talks. Some people hire a fly by night company employing illegals for half the cost, then sue anyone and everyone to cover their damages because the contractor has no assets or insurance.
OK – So the contractor can probably be held liable under a contract theory for damages incidental the rescue of one of its workers.
The fault base theory I mentioned above is …. negligence. The downside to using negligence is that sometimes things happen that are no one’s fault (ie. everyone met the applicable standard of care) so if you can find another basis for liability you would use it. In this case the property owner would have the contract theory to hold the tree trimmers liable. He would not have to prove the damage was the result of someone’s negligence.
The last theory in play here is trespass. Trespassors are liable for all damages that occur to a person’s property without regard to fault. If they are not trespassors, then we have to apply a negligence analysis: were the damages the result of a negligence act by either the tree trimmer OR the fire department.
And there there are the defenses…..
I’m having a difficult time finding a basis for a negligence claim against the FD. Even assuming the FD knew that their truck would damage the driveway, so what? They were attempting to make a rescue. The greater good is being served. That would be like complaining that we broke your door while entering to extinguish a fire. Even if they were unable to rescue the tree trimmer, their efforts are justified. Now if they ran the aerial through the roof by accident due to operator error and lack of training, that would be different.
Could you imagine the mayhem if every property owner could refuse access to his property during an emergency? “Hey, overpaid fireman, I don’t care if my neighbors house is on fire, use someone else’s fire hydrant and stay off my grass.” Would we be liable to re-sod his lawn if the hydrant washes out his grass?
Shouldn’t his first claim be against the tree trimmer and his insurance, followed by the complainant’s homeowner’s insurance? Could it be that neither the tree trimmer or homeowner had insurance and that is the reason for his suit?
John
I like to separate the negligence analysis from the defenses (such as immunity, the public duty doctrine, necessity or justification, etc.).
The fire department could be negligent if the reasonably prudent firefighter (driver, IC, company officer, etc.) would not have tried to drive the aerial device on the driveway surface/lawn, or tried to maneuver it where they did. I am not saying that the firefighters were negligent – just that the analysis would look at what the reasonably prudent firefighter would have done.
If the reasonably prudent firefighter would NOT have done what they did, then they COULD be liable, in which case we look to the defenses they may have. Probably the strongest defense the firefighters could raise is sovereign or statutory immunity. That may end the discussion entirely. So might the public duty doctrine.
And yes – Costa should be going after the tree trimmer not the FD. Actually, he should have gone to an attorney rather than a TV station for help. There is another legal theory known as the rescue doctrine that might possibly be applicable… Maybe not…. Where are all my fire law students….. come on guys, this is an easy one!
“That would be like complaining that we broke your door while entering to extinguish a fire.”
…and if the door is unlocked, I have trouble faulting the claim that the door was negligently broken. It’s like horizontal ventilation. How many videos are out there of windows being broken after the fire is out? The “greater good” defense gives a lot of flexibility, but it shouldn’t be a blank check either.
Joe,
Breaking windows after the fire is out allows for better ventilation, which reduces the damages to contents that the homeowner may choose to clean and save. Just because you don’t see heavy smoke coming out does not mean that CO and heat are not still present. Provided that the homeowner has insurance, the windows, doors, and walls will be replaced regardless of the fire damage. Having spent time in the construction industry, as well as a fireman, I have seen numerous cases of insurance companies choosing to gut a home in which the fire was held to one room. No homeowner likes mismatched windows, stained drywall, or the smell of smoke.
On the other hand, if the windows are being broken the day after the fire, you may have a point.
John
That is a great point. So often we focus on trying not to do too much damage – and the claims adjuster comes in the next day and determines the entire structure needs to be knocked down and rebuilt, or at least gutted (remove all interior walls, windows and wiring)and rebuilt.
Having spent my formative years in fire companies in the poorer sections of Providence, we were always taught that if we could stand up – we should take the time to remove window shashes because the people by and large did not have insurance and if we broke the windows they would stay broken for a long time.
Two different perspectives for two different communities I guess.
I’ll guess: Proximate cause. The owner of the landscape company, who hired the worker(s) who got stuck in the tree, which necessitated a rescue mission, which during the rescue attempt damaged the homeowners property, would be the one responsible for the damage (negligent hiring of poorly skilled workers, or not providing the proper training or safety equipment). just a guess.
Well my house was just burnt up. After the fact the firefighters continued to destroy my backyard fence which later led to a break in and burglary of my garage. They also broke out almost all windows and tore holes all the way into the attic whilst the fire had been contained to just the first floor. I understand them not wanting to risk the fire blazing up again after it was out but was such wanton destruction nesciscarry? My insurance investigator didn’t seem to think so and due to the fact that the firemen didn’t such the premise for animals after the fire was extinguished 3 cats left in the house died. If the firefighters hadn’t spent so much time destroying the house and made a more concerted effort to find the animals they had been notified were still in the house, these deaths may have been preventable. I was advised to get a lawyer. I know what a firefighters job is like and I understand what precautions were taken as well as lives risked. But I feel like they are responsible for the lives both animal And human, yet they disregarded pertinent information in lieu of wanton destruction. I’m not sure what I should do. I don’t care particularly about money but certain items are missing from the house that were located in parts undamaged by fire. I’m not sure what to do.