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Can a homeowner whose house is on fire refuse AMA?

That is a bizarre question, and as phrased is not a totally accurate statement about a problem that is really worth discussing. However, the term “refusal AMA” has become so engrained into our vernacular that hopefully you catch my drift. Can a homeowner whose house is on fire, refuse to allow the fire department to put the fire out? Can a homeowner with a smoke condition, or even an alarm sounding, stop the fire department at the door and prevent them from entering to investigate? And can a homeowner who initially asked for the fire department to respond because of a concern, demand that the fire department leave before fire department personnel believe the situation has been stabilized properly?

These questions arose following an incident in New York where a woman was upset when firefighters would not leave her house. According to a March 12, 2011 newspaper article in the Times Herald-Record, on February 15, 2011 Lisa Boyle’s 14 year old son called 911 because he thought there was a chimney fire. Ms. Boyle tried unsuccessfully to cancel the call, and then when firefighters from the Slate Hill Volunteer Fire Department arrived, she asked them to leave.

The firefighters dutifully refused and remained in the house for the next hour and four minutes investigating. Ms. Boyle referred to it as an “occupation” of her home, and attended a district board meeting to express her frustration.

At the board meeting the fire district’s attorney, Sean O’Connor, gave the fire department’s side of the argument:  “We have to respond, and we have to make sure there’s no fire and no threat and no flame-back…You didn’t know whether there was a fire in your house or not until they checked.” O’Connor also made reference to the possible liability that the department could incur if there had been a fire and firefighters had not been diligent in investigating the initial report.

Ms. Boyle left the meeting unsettled about the entire situation, but acknowledging that she could be wrong in her perspective.

The facts of the case offer us the opportunity to explore the scope of a fire department’s legal duty and authority.

What is the scope of the fire department’s authority at the scene on an emergency?

We can look at this topic on several different levels: historical, philosophical, legal, or practical.

Probably as much as any single issue, the legal duty of a fire department to respond to a fire distinguishes what we do as firefighters from what we do as emergency medical providers.  To put it succinctly: a competent person may have the right to refuse medical treatment against medical advice, but a property owner (competent or otherwise) does not have a similar right to refuse firefighters the right to enter a property to look for the source of smoke, or investigate an alarm, or extinguish a fire.

Why should a competent adult be able to decline medical aid, but not be able to refuse to allow the fire department the right to enter her home to investigate a possible fire?

For starters, its not because firefighters are smarter than the homeowner, nor that we have some special status that qualifies us to protect stupid people from themselves. Its not, as Attorney O’Connor told Ms. Boyle, because we are worried about legal liability, despite the fact that liabilities are a valid concern. That argument is nothing more than the tail wagging the dog.

To understand the right of a firefighter to enter into someone’s home requires consideration of the historical context in which the law developed. Fires have decimated most urban areas at one time or another. The Jamestown fire of 1609 nearly destroyed the first English settlement in the new world. Unlike a simple medical ailment, a fire does not affect one person. On the contrary, a fire left unchecked threatens neighbors and could potentially devastate an entire community. Virtually every city on every continent has learned, relearned, and learned again that lesson.

This historical discussion leads us into a philosophical discussion. In some ways, a fire is like a deadly infectious disease such as smallpox or leprosy. Until the development of antibiotics, these diseases warranted extreme measures including quarantine and the burning of contaminated property.  The threat to the many justified the temporary deprivation of civil rights of those infected.

In a similar context, the right of firefighters to enter peoples’ homes and properties does not flow from a duty to help a particular property owner who’s property is on fire. Rather, it flows from the risk that a fire in someone’s home poses to the public at large. No doubt firefighters have a moral duty to the particular homeowner who’s house in on fire, but the bigger picture is that there is a duty owed to the person’s neighbors, the neighbors’ neighbors, the neighbors’-neighbors’ neighbors, and so on.

As a practical matter, and as a legal matter, the authority of a fire department to respond to alarms and enter into peoples’ homes and businesses flows primarily from laws at the state and local levels. These laws give fire departments broad rights to enter into people’s homes for the specific purpose of extinguishing fires and mitigating fire hazards.

Consider the following from my home state of Rhode Island:

§ 23-37-1  Police authority of fire company officers at fire – Right of entry. – The chief, chief engineer, assistant engineer, captain, lieutenant, or any other executive officer of any volunteer fire company, association, fire district company, or any other organization organized or created for the purpose of extinguishing fires and preventing fire hazards, whether it is incorporated or not, and whether it is a paid department or not, when on duty at a fire in the city or town where the fire headquarters or station of the company, association, or organization is located or in response to an alarm for such a fire shall, in the absence of the chief of police, have the power to suppress any tumult or disorder and to command from the inhabitants of the city or town all needful assistance for the suppression of fires and in the preservation of property exposed to fire; the officers above enumerated shall also have authority to go onto and enter any property or premises and to do whatever may reasonably be necessary in the performance of their duties while engaged in the work of extinguishing any fire or performing any duties incidental thereto.

Laws such as this do not create a particular duty to the homeowner or property owner to which the fire department is called. Truth be told, when this law was originally written back before we had modern reliable fire apparatus and equipment, exposure protection often meant the destruction of exposures through the demolition of buildings in advance of a fire to create a fire break. Such drastic measures were accepted because society recognized the magnitude of the problem.

Compare the duty that a fire department owes to society in general with regard to a fire with the duty owed to an individual patient on a medical incident. The right of a person to decline medical aid flows from the fact that each person has a right to be free from bodily assault or battery. This right is respected and enforceable by both civil and criminal law. A person has the right to decline contact or medical aid as well as the right to consent to it. Without the patient’s consent we have no right to treat or touch…. absent a public health emergency.

So to Ms. Boyle’s concern about whether the fire department should have stopped responding (or left her home) when she requested it to – the answer is that unlike a medical call, the fire department did not respond to her son’s 911 call only for her benefit. It responded on behalf of everyone in the community because what happened in Ms. Boyle’s house – fire-wise – could affect others in the community if it was not handled properly.

But perhaps there is a valid question that Ms. Boyle might have today. What if there is no chance of a fire extending from one person’s home/property to another? Should the authority of the fire department be limited in such circumstances? We will leave that question for another time…. but for now the law does not recognize such an exception.

Comments - Add Yours

  • John

    How would this affect insured property? The insurance agency based it’s coverage on the availability/capabilities of the local FD. If the homeowner prevents firefighters from saving property that the insurance covers, while expecting them to cover their damages, wouldn’t that be equivalent to theft?

    I would suggest that people in areas served by subscription fire services who refuse to pay the subscription fee have “refused AMA”. Funny how they always want to pay the fee once the fire happens though.

  • http://firelawblog.com Curt Varone

    John

    Most fire/homeowners policies have a provision about “increasing the risk”. If the homeowner does anything which increases the risk to the property, the insurer may deny coverage. Denying the fire department entry would certainly qualify!!!!

  • Greg

    A follow-up question is what is the responsibility of the FD to exposures themselves if, in fact, a resident is able to deny or not even contact Emerg Svcs?
    This sounds like a great way for people to get rid of unwanted structures, hide crimes within, circumvent denied demolition permits, etc.
    And the liability from one neighbor to another?

  • http://firelawblog.com Curt Varone

    Greg

    That is the point! The FD cannot allow the home or property owner to prevent them from doing their job.

  • Judge Judy

    Where’s the law that says a fire “department” can enter against the will of the property owner?

    No law, no entry.

  • http://firelawblog.com Curt Varone

    Well Judge Judy, if you read the article instead of just the headline you would have read an example of the law!

  • Pingback: Duty to Act, Right to Enter, Their Well Being, Our Well Being | Fire Law

  • Brady

    You seemed to touch on my question a little bit at the end of your article, but being a volunteer FF in a rural area, how does all of this correlate to residences in the country, when the homeowners property is really the only materialistic items in danger?

  • J.R.

    How would this apply in a rural setting with wildfires. An FD strategy may be to use mechanized equipment to stop the fires from spreading. Some landowners are against this tactic.

    Would the potential loss of a neighbors property trump the property owners wishes of no dozer/cat line?

    • http://firelawblog.com Curt Varone

      Capt – it is going to come down to state law. Back East, many states have laws that go back to the days where homes and buildings in major cities could be destroyed to build a fire break (some departments even used explosives/gunpowder for this purpose)- so damaging crops or wildland would not be a problem.

      I did a quick check of Wyoming statutes and could not find anything comparable to the RI statute listed above. There is probably some law on it – and the specific language will determine the extent of the FDs authority. The RI law would apply to any type of fire – structure or wildland.

  • Pingback: Further discussion on the fire brigades ‘duty of care’ « Australian Emergency Law

  • http://emergencylaw.wordpress.com Michael Eburn

    Kurt
    thanks for the post- which I’ve quoted when given an Australian view at: http://emergencylaw.wordpress.com/2012/08/15/further-discussion-on-the-fire-brigades-duty-of-care/.

  • Legal Bird

    I believe that if the fire in question is a controled burn then the property owner should have the right to refuse, and futhermore if the property is protected by a locked gate they should be charged with trespass (if there is no burn ban in effect)

    • http://firelawblog.com Curt Varone

      Interesting points Legal Bird

      So what if the neighbor calls to complain about (a) the smoke affecting the neighbor’s asthmatic child, or (b) a concern that the fire will spread from the controlled burn onto their property and damage their crops or even their home.

      Definitely the burn ban would be a factor, as would the need for a burn permit… but I suppose the question pits one person’s right to do as they please on their own property with everyone else’s right to live their lives free from harm by another’s stupidity.

  • Rock, GH

    As a police officer of 16 years and as a student of law, I find this discussion very interesting. The only part of this that concerns me is the “government’s intrusion” into a persons home. I did some research and found the following:
    1) The owner of property is allowed to do whatever he/ she wants with the property. This is tempered with such laws as “public safety” ordinances, and “unknown danger” laws.
    2) Since fire personnel are charged with such responsibilities, they must be allowed to put out a fire and/ or give medical attention (if the person is unable to deny medical treatment) In fact anyone who attempts to hinder fire personnel is in violation of every [related] statute I can find.
    3) A person’s right (4th Amendment; U.S. Constitution) to be free of government intrusion is negated by such laws that require fire/ medical personnel to act. This standard would be the “reasonableness” doctrine in which a FF/ EMT determines he must act.
    4) [this was my concern] If a FF/ EMT is on the premises legally, which they would be by statute, must report to law enforcement any unlawful materials, documents, etc. Therefore, 4th amendment rights are negated and usually a person may not refuse emergency personnel.