Today’s burning question: Last March when I went out shopping, firefighters were called to my house and broke down my door. Apparently my neighbor called because my wood burning stove created a lot of smoke. The door cost me $2,000 to fix. Can I make the city or the firefighters pay?
Answer: Probably not, but the reasons for that will vary from state to state.
Tanya Ferrera of Warwick, Rhode Island has filed a claim against the city of Warwick for damage done to her door by firefighters during a March 31, 2014 incident. Firefighters were called to Ferrera’s house when a neighbor saw smoke coming from it and was concerned.
When the firefighters were unable to contact someone inside the residence and Ferrera did not answer her cellphone, they forced entry damaging the door. Once inside they discovered the smoke condition was caused by the wood stove, but that the situation was not an emergency. By then the damage was done.
Can The Fire Department Be Held Liable?
As an initial matter, many states provide immunity protection to fire departments and firefighters in situations like this either through sovereign immunity or statutory immunity. In these states fire departments and firefighters are by law immune from liability for such claims.
Unfortunately, Rhode Island is not one of those states. Rhode Island’s tort claims act makes a fire department liable to the same extent a private business would be, subject to a $100,000 cap on damages.
Given the lack of immunity protection in RI, Ms. Ferrera has two primary theories of liability to hold Warwick liable: the intentional tort of trespass, and negligence.
Someone who trespasses upon the land of another is strictly liable for any damage that results. Thus if the firefighters were considered trespassers when they entered onto Ms. Ferrera’s property, they and the city could be liable for the damage to the door. The problem for Ms. Ferrera is that firefighters responding to a possible fire are not trespassers. RI law expressly authorizes firefighters to enter on to private property. Here is the law:
- 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.
Thus, an action for trespass is not going to succeed.
To prove negligence on the part of the firefighters in this case, Ms. Ferrera will have to establish that the firefighters acted in a way that breached the standard of care of the reasonably prudent firefighter under the circumstances. This will require expert testimony that the reasonably prudent firefighter would not have forced the door, would have forced to door in another manner that would not have caused such damage, or would have gained access to the structure in a different manner. That is going to be a tall order made even more unlikely by the reality that most expert witnesses will charge 2 or 3 times more than the cost of the door simply to render an opinion.
Public Duty Doctrine
In the event that Ms. Ferrera is able to establish that the firefighters breached the standard of care, she then faces her biggest obstacle, a thing called the public duty doctrine. Simply stated, the public duty doctrine holds that when suing a governmental entity such as a fire department: “plaintiffs must show a breach of some duty owed them in their individual capacities and not merely a breach of some obligation owed the general public.” Ryan v. State, Dept. of Transp., 420 A.2d 841 (R.I. 1980).
In other words, in order for Ms. Ferrera to prevail against the city of Warwick she must prove that the city owed her a legal duty that was somehow special when compared to the duty owed to everyone else in Warwick.
The creation of a special duty requires a number of factors, none of which are present in this case. “In the cases in which we have affirmed the existence of a special duty, either the plaintiffs have had prior contact with state or municipal officials who then knowingly embarked on a course of conduct that endangered the plaintiffs, or they have otherwise specifically come within the knowledge of the officials so that the injury to that particularly identified plaintiff can be or should have been foreseen.” Verity v. Danti, 585 A.2d 65 (R.I. 1991).
The bottom line, it is highly unlikely that Ms. Ferrera will be able to prevail in her claim for damage to her door, should the matter proceed to litigation. The matter is being deliberated this evening by the Warwick City Council.