Who Accepts Liability After a Fire or Disaster? By Chief Jim Harmes, ret., Past President, IAFC
As a son of a volunteer firefighter, I rode my bike to fire damaged buildings. I was intrigued by the losses fire produced. So intrigued that I would immediately go into the burned-out building to see what I could find. This wasn’t an act of stealing, but an act of curiosity – what did the fire burn and how did it start? I had no concern or knowledge of the liability I was creating.
As public servants, we have a duty to inform victims that they are responsible to protect their property as well as the general public, especially children. This protection includes boarding up of the home they just lost or the fencing of the property. They must take the necessary steps and precautions to avoid an attractive nuisance.
Is this the fire department’s job?
Remember that the victims are distraught and barely have their feet under them. Shouldn’t the fire department provide them with the proper board up? Isn’t it their responsibility?
As fire service professionals, we call ourselves a full-service organization but we don’t always take care of our fire victims.
Some departments do not take care of their victims. What does it take to get a reputable company at the scene to help these victims with keeping their possessions safe, keeping the neighborhood children at bay, and, most importantly, keeping the ‘chain of command’ in tact for the fire investigators to do their investigation?
As a Fire Chief for many years in Michigan, I always tried to take care of our fire victims. This was done through American Red Cross or Salvation Army. At least this gave the victims a place to stay for the night. But at the same time, we had to be aware of the attractive nuisance ordinance that we have in our towns. With that in mind, we would call a reputable restoration contractor to board up the property.
The most important part of this was our ‘chain of command’ issues, but they were solved immediately. Once the building was secured, the company would place a hasp and lock on one door and we had the key number assigned to our department so we could enter the building at any time. The attractive nuisance was taken care of and the chain of command was fulfilled for our investigators. Since retiring and going to work for 1-800-BOARDUP, a structural stabilization and victim services company, I found that in a lot of cases, departments do none of this.
Because we must return to service quickly, we are often unable to take care of the victims and secure the buildings after a fire.
I continue using the term ‘attractive nuisance’ over and over again. An attractive nuisance is any potential harmful object that is so inviting or interesting to a child that it would lure the individual onto the property to investigate or play. Some of the items that classify as an attractive nuisance are large kitchen appliances, unenclosed swimming pools, unprotected fountains with coins and even unlocked large equipment. How many times do we hear of a child going onto a building site and something occurs? They dig tunnels, play inside the new building prior to it being locked, or mess around with unlocked equipment.
Now let’s consider fire trucks screaming past a group of children in a neighborhood. Where do you suppose these “little munchkins” will be headed after the trucks go past them? The child will go to the scene if it is nearby. Once the firefighters have finished up, and everyone leaves the scene, who is looking in the building? They are kids- fascinated with what just occurred. Into the building they go with the broken glass, cut up walls, material all over the floor and of course the furniture that was in the building when the fire started.
Attractive Nuisance Ordinances
Most governmental authorities have attractive nuisance ordinances in place. If yours does not, as Fire Chief/Chief Officer, you should work to get one enacted. Normally, the property owner has not required any safeguards for trespassers to keep them from harm. But if the property is inviting and dangerous, the owner will be required to make a reasonable attempt to prevent injuries to children. These children may wander onto the property and enter a burned out or abandoned building. In many states, this would be called an “attractive nuisance doctrine” or a local ordinance.
This rule will summarize the following assumptions:
- Children will not fully understand the dangers they will encounter.
- The owner must acknowledge that children can come on the property and they have a heightened responsibility to keep them safe.
- Any owner who does not take “reasonable precautions to prevent injuries” will be liable for any and all injuries that occur to children entering the property.
- The attractive nuisance doctrine will impose upon the owner to secure the property.
Special attention must be given when a situation on the property draws attention to a child. A child doesn’t fully understand the dangers that are present. Generally, the owner will be held liable for injury if they fail to limit the interest of the child by not securing a dangerous building after a fire.
Who Do We Need to Protect?
All people should be protected, but we must consider young children the most important commodity. Each case will dictate how a court looks at it. I have found in my career to never plan how a court will rule. Be prepared and the courts will not get involved. The largest problem with legal issues is they aren’t black and white and one ruling won’t fit all. Frequently, the liability levels will vary upon the different situations. A child who falls into the basement of a burned-out home may not get the same compensation as one who falls down the stairs from the upstairs. Courts will not rule the same.
Case laws may cover these and other hazards:
- Fire scenes are the most dangerous sites in most cases. There are huge risks of injury that could happen to a child.
- Pools. Most communities require locking mechanisms to keep it safe from children.
- Discarded refrigerators. Almost every municipality has laws regulating these. The doors are to be removed so children will not become trapped in them.
The local government in many parts of the United States has regulations dealing with the attractive nuisances. Through their code enforcement division, these neglected nuisances will be cited.
Is it Time for a Cultural Change?
With so many lawsuits filed against local government, it is time for someone to step up and take responsibility for the burned-out structures in their cities. The idea of a “sovereign government” is over. The government gets sued just about every day of the week. Whether it be a labor issue or a crack in the sidewalk, the local governments have come under some pretty harsh lawsuits and have lost.
So, who has the obligation to keep our neighborhoods safe? In certain parts of the country, Fire Chiefs and Police Chiefs are responsible for the board up of burned out houses or other buildings. Why not all over the country? Some governments go back to immunity theory – “I don’t want to mess with it.” Others are concerned about contacting board up companies. The question is why. We constantly help folks in our communities, so why not help these victims after a fire?
We need to change either our culture or our thought pattern in the fire departments. If you are not one that assists the victims of the fire, then you should consider rethinking. The victims haven’t even grasped what happened to them and now we send out a code enforcement official to get it boarded up or to have it fenced so that it is no longer an attractive nuisance for the children.
We need all municipalities to declare burned buildings unsafe. Once this is done, we need to be sure the building is properly boarded up with a key going to the fire department.If the building is properly boarded up and locked, then the investigator could return when it is daylight to finish the investigation. We have a chain of evidence that can be followed.
Lastly, the victims have potentially lost a great deal in the fire. Believe it or not, there are folks out there that prey on these people and enter the homes and take what is left that could be salvaged.
We claimed to be a full-service department, so why don’t we offer guidance to distraught fire victims?
The fire officials know best as to the potential dangers within the structure, any legal liabilities, and how they would recommend taking care of themselves until the insurance company enters the picture. There are so many resources available to you, including my company, 1-800-BOARDUP, the American Red Cross and the Salvation Army. Don’t hesitate to call someone to help the victims in your community.
If we changed the culture of the fire service to be one that shows compassion for the victims, the community will continue to benefit and have faith in the department. Is it that difficult to change the culture? I truly don’t think so.