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.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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