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Ask the Lawyer

Posted by: tdt -

“Can I sue the fire department for the damages?”

Question:  I had a fire on my property and the local fire department responded.  The fire was extinguished with no trouble and wasn’t really a bad fire, but the fire trucks driving onto my property made a mess of my land, leaving large trenches.  Also, a portion of fence was run over when one of the trucks was backing out after the fire was put out.  Can I sue the fire department for the damages?
Answer:  The answer depends upon the nature of the fire department’s and its members’ actions.  According to Texas law, fire fighters are required to use “reasonable and necessary action” in fighting a fire.  When the fire department complies with that requirement, it may not be held liable for damages caused in the course and scope of its mission.
The Civil Practice and Remedies Code, Title 4, Liability in Tort, Chapter 78, Certain Fire Fighters and Fire-Fighting Entities, Subchapter A, Volunteer Fire Fighters and Fire Departments states, “A volunteer fire fighter or a volunteer fire department is not liable for damage to property resulting from the fire fighter’s or the department’s reasonable and necessary action in fighting or extinguishing a fire on the property.”
The answer thus relies upon the circumstances of the fire department’s entry onto the land where the fire occurred.  When a fire is burning, emergency responders are sent to extinguish it by using technology that best suits the fire.  That may mean knocking down walls, starting firewalls, or digging trenches, or using chemicals that cause damage to the structures burning.  The first purpose of the fire department is not to save property, but to extinguish the fire and save life.  When the fire department enters onto land to get to a fire, they may travel through fields, depending on the nature of the land.  Weather conditions may have a factor in the shape the land is in at the time of entry by the fire department.  If land is wet, heavy trucks and equipment may indeed leave trenches.
If the fire department could have easily, and without delay, used an alternate entry that was as accessible as that chosen, then an argument may be raised that the department failed to take reasonable and necessary action.  If the fire department entered onto property through its only entry, then the damage caused by the heavy trucks and equipment is not likely to satisfy the test for liability.
Damage to a fence upon leaving the scene again depends upon the circumstances and why a fire fighter driving a fire truck would have not seen the fence, or not been able to avoid the fence.  If the firefighter was careless or failed to use reasonable care, then liability may attach.  The reasonable care of a fire fighter or department is that which should have been used under the same or similar circumstances.  If, for instance, a house was on fire and the fire department had a reasonable belief that people were inside the house and in danger, then the fire fighters may take almost any action necessary to free the people from harm’s way, even if that means the total destruction of the house. 
In another example, if a barn were on fire, the fire department’s requirement to use whatever action necessary to free trapped animals is not the same.  That’s because animals in Texas are treated like any other piece of property, and not people.  The fire department, however, is likely to do whatever is possible to free animals, especially in a rural area where animals are “income,” and not simply pets. 
Suing a fire department is the same as suing any city or county entity, and if an employee from the entity to which the fire department is contracted to could be liable for damages, then so could the fire department or fire fighter.  But the failure to use reasonable and necessary action to extinguish a fire must be successfully demonstrated.  Obviously, damage from putting out a fire occurs at every fire scene.  Whether or not the damage could have been avoided is the real question.
The information in this article is meant for educational purposes only and not as a substitute for sound legal advice.  Direct questions to Ask the Lawyer to or via the Facebook page for the Dalhart Texan.