Discretionary Function Immunity and Fireground Liability
The Supreme Judicial Court of Massachusetts recently upheld a jury verdict of $850,000 against the City of Lowell in which the city fire department was found negligent for using improper firefighting techniques. In doing so, the Court rejected the argument that firefighting tactics were protected by the state’s “discretionary function” immunity for civil liability.
Under common law. municipalities were protected by what was known as the doctrine of “sovereign immunity,” a judicially created doctrine that prohibited injured citizens from suing governmental entities for damages. In many states, this doctrine was further extended to protect volunteer fire companies, since the volunteer companies performed what was known as a “traditional government function.”
The 1960s and early 1970s saw the abolition of this judicial sovereign immunity in most states. However, state legislatures responded to the need to protect local governments from liability by enacting statutory governmental immunity, usually referred to as “tort claims acts.” These acts vary widely from state to state, with some states, such as Colorado and Pennsylvania, giving broad immunity to municipalities with only limited exceptions in which the municipality can be held responsible for damages. Some states, such as California and Oklahoma, provide specific immunity from suit for all firefighting activity. Other states provide a more limited protection in the form of immunity for “discretionary functions.” Because of the ambiguity of the term “discretionary,” this type of immunity statute has brought about the most litigation, with arguments over which firefighting functions are protected by immunity and which are not.
In Palmer v. City of Daytona Beach, 469 So.2d 121 (1985), a suit for alleged negligence was brought against the firefighters, charged with causing damages to Palmer. The suit alleged that the firefighters were negligent in temporarily terminating firefighting efforts during a shift change and in ventilating an upstairs window in contravention of standard firefighting practices. It also alleged that the officer in charge exhibited a clear lack of decision-making and supervisory skills. A bare four-justice majority of the Florida Supreme Court held that the city was immune from suit under the state’s discretionary function immunity: “The decisions of how to properly fight a fire, or what and how much equipment to send to a fire, are discretionary judgmental decisions which are inherently in this publicsafety function of fire protection….To hold a city liable for the negligent decisions of its firefighters would require a judge or jury to second guess firefighters in making these decisions and would place the judicial branch in a supervisory role over basic executive branch, public protection functions in violation of the separation of powers doctrine.”
The three dissenting justices argued that the majority interpreted the discretion too broadly: “Had the city sent no firefighters, or too few-, to the scene, that decision would have been immunized as a planning-level strategic allocation-of-resources decision. Once firefighters were dispatched to the scene, however, all policy decisions had been made.” The dissent went on to sav that the firefighters then had a duty to fight the fire in a reasonable manner and not deviate from accepted firefighting practices.
The Idaho Supreme Court reviewed the discretionary function immunity in Lewis v. Estate of Smith, 727 P.2d 1183 (1986). In addition to seeking damages from the property owner, Lewis claimed that because the City of Blackfoot failed to regularly conduct fire code inspections and failed to abate known violations of the fire code, the cityw-as liable for injuries sustained in a subsequent fire that damaged their apartment building. The city argued that it was protected by’ the discretionary function immunity, since the decision to cease regular inspections was a policy decision based on budget cuts brought about by’ the passage of a tax-limitation initiative.
The Court used a “planning/operational analysis” for determining whether the actions were discretionary’. Under this test, the Court stated that discretionary governmental policy-making or planning activities are exempt, while operational activities and implementation of statutoryand regulatory policy are not immunized and must be performed with ordinarycare.
Applying this test, the Court held that the failure to inspect was protected by the discretionary function immunity, but the failure to abate know n code violations constituted implementation, which was not immune.
The courts themselves have acknowledged the difficulty in interpreting and defining the discretionaryfunction. In Industrial Risk Insurers v. New Orleans Public Service, 735 F. Supp. 200 (E.D. La., 1990), the Court set forth the doctrine as follows: “The purpose of the discretionary function exception is to prevent judicial second guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort. ..Courts have found it a difficult task to define the boundaries of the discretionaryfunction exception.”
While the Court then admitted that manv other jurisdictions extended the discretionary function immunity beyond policy decisions to also protect implementation of a policy decision, it adopted a more narrow version: “Every act of a rational being involves some choices, and the discretionary’ function exception must be read carefully or it will totally insulate the government from tort liability.” The Court then drew a line similar to the Smith case described above, holding that decisions at a planning level are immune, but operational and implementation decisions are not. The Court held that since the plaintiff alleged that the fire department was negligent in shutting oft the electrical service, which in turn shut down the sprinkler system, this was an operational decision that w as not protected by immunity.
The Minnesota Court of Appeals followed the same approach in Invest Cast Inc. v. City of Blaine, 471 N.W.2d 368 (1991). Invest Cast alleged that the fire department was negligent in using straight-stream water patterns instead of fog, which used up the limited water supply too quickly, and also for pushing the fire from an out-building into the main building by using improper firefighting techniques. The Court held that “the fire department’s decision on how many firefighter personnel and trucks to send to a fire is a policy decision protected as a discretionary function. Mow the firefighter personnel actually fight the fire, however, is not within the discretionary function exception… Because the methods used in fighting this fire raise a material issue of fact as to whether the fire department exercised reasonable care in fighting the fire, we reverse the trial Court’s grant of summary judgment as to the fire department and remand the case for trial.”
As noted at the beginning of this article, the Supreme Judicial Court of Massachusetts also has followed this same line of interpretation in Harry St oiler and Co., Inc. v. City of Lowell, SB” N.E.2d 780 (1992). Five buildings were destroyed in Lowell on April 23, 1978. The owner of the buildings brought suit against the city, alleging that the city was negligent in failing to use the building’s sprinkler system and that had the fire department used the sprinkler system, the fire would have been contained. As with the other courts, the Massachusetts Court found that “the dividing line should be between those functions that rest on the exercise of judgment and discretion and represent planning and policymaking, for which there would be governmental immunity, and those functions which involve the implementation and execution of such government policy or planning, for which there would be no governmental immunity.”
The Court concluded that the decision to mount an exterior attack rather than use the sprinkler system was not within the discretionary function immunity. “The question whether to put higher water pressure in the sprinkler systems involved no policy choice or planning decision. There was a dispute on the evidence whether it was negligent to fail to fight the fire through the buildings’ sprinkler systems. The firefighters may have thought that they had a discretionary choice whether to pour water on the buildings through hoses or to put water inside the buildings through their sprinkler systems. They certainly had discretion in the sense that no statute, regulation, or established municipal practice required the firefighters to use the sprinklers (or, for that matter, to use hoses exclusively). But whatever discretion they had was not based on a policy or planning judgment. The jury decided that, in exercising their discretion not to use the buildings’ sprinkler systems, the Lowell firefighters were negligent because they failed to conform to generally accepted firefighting practices. When the firefighters exercised that discretion, policy and planning considerations were not involved. Therefore. the discretionary function exception does not shield the city from liability.” The Court lowered the judgment from S850,000 to $100,000 because the Massachusetts Tort Claims Act provided a SI00,000 cap on damages arising from any single incident.
Taken together, these cases show that firefighters in states that have enacted the discretionary function immunity statutes cannot rely on such statutes to protect against lawsuits alleging negligent foreground decisions. Some states, such as Florida, have included tactical foreground decisions within the discretionary function exception. In fact, at almost the same time as the Stoller decision in Massachusetts, a New York case, Austin v. City of Buffalo, 580 N.Y.S.2d 604 (A.D. 4 Dept., 1992), reached this conclusion: “Liability cannot be imposed if the firefighters’ conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions that in retrospect show poor judgment, but judgment nonetheless.”
Since the cases are split as to how far to apply this type of immunity, fire service leaders should lobby the state legislatures to replace these statutes with broader immunity legislation to protect the fire service. Such a statute could be modeled as follows:
A. No municipality, volunteer fire company, or any employee or member thereof shall be liable for any civil damages as a result of any acts or omissions w hich arise out of or are in the course of the performance of rendering services in connection with any firefighting or emergency services incident.
B. This immunity shall apply to the municipality, volunteer fire company, employee, or member regardless of whether the emergency incident is within or outside of the municipality in which the fire department or company is located.
With all the responsibilities currently placed on them, firefighters and fire officers should be protected by statute from judicial second-guessing. The burden of compensation for errors of judgment should be on the fire insurance carriers, not on the firefighters.
