Request By:
Bill Cunningham, Esq.
P. O. Box 581
Eddyville, Kentucky 42038
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking what rights, if any, a homeowner has to direct volunteer firemen in fighting a fire. You have been unable to find any state statutes setting forth the responsibilities of volunteer firemen at the scene of a fire. You state that a fireman is more than a licensee or invitee and you request information as to any pertinent law in this matter.
There are no state statutes of which we are aware that specifically set forth the responsibilities of firemen at the scene of a fire. In McQuillin Mun. Corp. (3rd Ed.), Vol. 16, § 45.13a, the following appears:
"In entering upon premises in the performance of their duties, firemen and policemen proceed neither as invitees nor licensees, but as a special class, sui generis, of persons privileged to enter for a public purpose irrespective of the consent of the owner."
The Court, in Shypulski v. Waldorf Paper Products Co., Minn., 45 N.W.2d 549 (1951), said in part:
". . . The first thing to be recognized is that firemen, policemen, and similar personnel have a status sui generis. Although firemen are frequently described as licensees, it is apparent that they are not licensees in the usual sense of being licensed to enter by virtue of the landowner's consent. Firemen make their entry under license of law, and only in that sense are they licensees. The landowner's consent or protest to a fireman's entry is immaterial, because his consent is unnecessary and his protest is legally unavailing. Numerous opinions and several legal writers have amply explained why firemen cannot be fitted into any of the traditional categories grouping persons who enter upon the land of another. Any rule that flatly categorizes firemen with trespassers disregards the fact that firemen, unlike trespassers, enter tighfully. Any rule that flatley categorizes firemen with invitees or liciensees disregards the fact that firemen, unlike either of the latter, may enter premises without invitation or license of the owner. Firemen are regarded as making their entry primarily for the purpose of performing a duty owed to the public. . . ."
In
United States v. Callabrass, 469 F.Supp. 323 (U.S. Dist. Ct., S.D. N.Y. 1978), the Court said that the right of a fireman to enter a burning building without a warrant to fight a fire is clear. The Court recognized in
McGee v. Adams Paper and Twine Co., 271 N.Y.S.2d 698 (1966) that, "Of course, when the firemen arrived on the scene, they took control of the matter of the fighting of the fire and the defendants were then under no duty to engage in independent efforts to extinguish or slow down the fire." Furthermore, in
Felter v. Delaware & H.R. Corporation, 19 F.Supp. 852 (D.C., M.D.Pa. 1937), affirmed 98 F.2d 868 (1938), the Court said that where the emergency of fire exists, the right to use one's property as he sees fit is subordinate to the exigencies of public safety and private necessity, and society imposes a duty not to use property in such a way as will interfere with the activities necessary to abate the emergency.
In 65 C.J.S. Negligence § 72, it is stated that, "A person, who by his negligence obstructs or interferes with a lawful attempt to extinguish a dangerous fire, is liable for the damages which otherwise might have been prevented." See also 36A C.J.S. Fires § 15. In 35 Am.Jur.2d Fires § 28, it is written that: "It is now widely accepted that the negligent or wrongful prevention or interference with efforts to extinguish a fire may give rise to liability for the damage thereby sustained."
Although we can find neither a specific Kentucky statute nor a specific Kentucky case dealing with the question you have raised, it is our opinion, on the basis of the cases and authorities previously mentioned, that a homeowner has no authority to direct the activities of firemen who arrive on his property ot fight a fire on the property. Firemen who arrive on his property to fight a fire on the property. Firefighters in the pursuit of their duty do not need the owner's permission to enter upon his property. Firefighters owe a duty to the public and once they have arrived at the scene of a fire they control the efforts to extinguish the fire.