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Negligence 101

Editor’s note: Lawyer Timothy Wilkin of Cunningham Swan Carty Little & Bonham in Kingston, Ont., prepared a review for the Ontario Association of Fire Chiefs of reported Canadian court cases in the last 15 years that dealt with negligence by municipalities and their fire departments. We looked at several cases in the February and March issues of Fire Fighting in Canada. The final instalment is below.

Schouten v. Rideau (2005)
The plaintiffs operated one of the largest farms in eastern Ontario with about 2,000 acres under cultivation and more than animals. The plaintiffs resided on the property with their respective families. 

In the early morning of Nov. 20, 1999, a serious fire destroyed a complex of barns and silos on the plaintiffs’ property, causing $857,000 in damage. The calf barn, a two-storey barn and feed room were involved in the fire and there was extensive damage to the silos and the recently harvested crop (4,000 tons of dry grain corn).

The fire was fought over a period of several days by volunteer firefighters from the Rideau Township under the command of its fire chief. A great deal of equipment and manpower was brought in from surrounding municipalities to supplement the resources of the township’s fire department under mutual-aid agreements among fire departments in the area.

The plaintiff alleged negligence based on certain acts and omissions of the department and particularly, the fire chief. It was alleged that the chief failed to conduct a proper size-up of the fire scene when he arrived and never properly assessed or appreciated the fact that the silos could be protected by bringing equipment around to the south of the barn complex and streaming water into the feed room in an effort to cut off the fire’s advance.

The plaintiffs alleged that if the fire chief had streamed water into the feed room as requested, it would have decreased the chance of the fire spreading into the feed room and connecting silos. Evidence indicated that the farm owner had recommended this at the time.

The fire moved rapidly through plaintiffs’ complex of barns and therefore, there was a very short interval of time within which firefighters might have attempted this type of response. 

The experts at trial agreed that a fire ground is a dynamic and fast-moving environment requiring rapid decision making. Within that small time frame, the fire chief had to identify the options available to him, having regard for the firefighting resources available at the time and the persons, property and hazards that he reasonably regarded as requiring protection.

■ Legal issues
Do volunteer firefighters owe a duty of care to property owners experiencing a fire, and if so, what is that duty?
Did the fire chief’s decisions and directions in fighting the fire at the initial stages reflect an appropriate standard of care?

Was the fire chief negligent in not conducting an adequate size-up of the fire scene upon his arrival and at the early stages of the fire such that he failed to appreciate the need to stream water into the feed room as a method of cutting off the advance of the fire to the silos?

Would the fire have reached the silos even if the water had been applied to the interior of the feed room structure?

■ Court’s findings
The court found that the proper standard of care is determined by combining the concept of reasonableness with the particular circumstances confronting the firefighters in question. 

Based on the expert evidence at trial, it would have been too late to successfully extinguish the fire in the feed room unless done within the 12 to 15 minutes after the fire chief assumed command, because by that point the fire was firmly established and spreading rapidly along the feed room to the adjoining silos. 

The court therefore determined that it was this 15-minute interval (post-arrival) during which the fire departments’ actions must be assessed. The court found that attempts to flow water into the feed room after that point would have, at best, slowed the fire’s progression, but would not have prevented its ultimate spread into the silos.

 The court found that the fire chief breached a professional standard by failing to carry out a proper size-up of the fire upon arrival and therefore, prematurely committed the primary fire fighting vehicle to an area that prevented it from being used in an attack on the fire from the south via the feed room. 

However, the court found that the defensive fire attack plan adopted by the chief was a reasonable choice under the
circumstances and that his deployment of resources, which were limited in the half hour after his arrival at the fire, was also reasonable. 

The evidence did not support a finding that the fire chief had failed to establish a reliable and continuous water supply in this non-hydrant area. The court found there was no delay in commencing the spraying of water on the buildings. The tanker vehicles rapidly discharged initial water loads into portable tanks that permitted prompt application of water to the burning buildings and the exposures. 

The court stated that even if there had been a delay, it would not have affected the outcome in any material way, particularly since the calf barn and the two-storey barn were not going to be saved, and the heat and fire from those structures would inevitably radiate into the feed room, despite the application of water to the exterior of these structures.

The fire chief had faced the largest fire in his career. He reasonably chose to deploy the only available attack pumper to a position where the deluge gun and secondary lines could spray the two-storey barn, the 1,000-gallon propane tank on the property, and, if necessary, the plaintiff’s home. The fire chief’s primary goal was to prevent the fire from progressing beyond the perimeters of the barn and silo complex. 

The fire chief had the right to fear the risk of the fire advancing to the plaintiff’s home and the propane tank, and to prioritize the deployment of his resources accordingly. In doing so he acted reasonably. 

■ The court said: 
“It would be an injustice to the fire chief and fire department and contrary to the established principles of tort law to assess [the Fire] chief’s decisions from a retrospective armchair point of view when he was making these decisions in the face of a dangerous and fast moving fire.

“The fire department and, in particular, the fire chief, exercised reasonable judgment in the formulation and implementation of the initial phases of the fire attack plan.  Despite an inadequate size-up and premature deployment of his only attack pumper upon arrival, the fire chief used reasonable judgment and competently executed a fire attack plan which the court found to be reasonable for a volunteer fire department in like circumstances and with like resources. ” 

The plaintiffs had failed to prove that the silos would have been saved had the plan they recommended been implemented.

■ Lessons learned
Conducting a proper “size-up” and developing a suitable attack plan are part of the expected standard of care for a fire department. In that respect, a volunteer fire department has the same professional obligation and will be held to the same standard of professional care as a career fire department.

The court indicated that a proper size-up should occur immediately upon arrival at the fire ground and should properly assess all sides of the incident. This includes:

• safety issues,
• building layout,
• how advanced the fire is,
• the direction and velocity of the wind,
• the location of the body of the fire growth,
• the likely path of travel of the fire and
• an identification of exposures on the property to be protected. 

The court stated that a size-up should include input from the property owners.

Having completed a proper size-up, it is also a standard operating procedure that a fire attack plan be formulated. A fire attack plan can be either an offensive mode or a defensive mode. 

In determining whether the actions of a fire department are reasonable, the court will take into account the circumstances presented to the firefighters at the time of the fire and the resources available to them. It will not hold a fire department to a standard of perfection and will not second guess decisions that had to be made in the face of a dangerous and fast moving fire as long as the actual decisions made were reasonable ones.

Ennis-Paikin Steel Ltd. v. Hamilton (2006)
On April 10, 1989, the plaintiff’s manufacturing plant and adjoining office premises were largely destroyed in a major fire. The cause of the fire was never determined.

The Hamilton Fire Department had responded the previous evening to a smell of smoke call at the property from the plaintiff company’s president. The plaintiff alleged that the Hamilton Fire Department had failed to do a proper inspection because the firefighters spent about only 15 minutes searching for the source of the smell of smoke call.

The Hamilton Fire Department located and neutralized a seized up ceiling exhaust fan, which had overheated and was accepted by all, including the plaintiff’s president, as the source of the smoke and odour that prompted the call.
 
The fire captain told the company president that it would be a good idea if he remained at the scene for another 45 minutes to an hour as a precaution. The president eventually left at 11 p.m. At 5 a.m. the next morning, he received a telephone call about a fire at the company premises.

The plaintiff alleged that the fire department had been negligent because it relied on the company president to stay at the premises to maintain a fire watch, a duty that should have been assigned to fire department personnel.

■ Legal issues
Was the Hamilton Fire Department negligent in the manner of its response to the smell of smoke call?

■ Court’s findings
The court found that, based on the information and knowledge available to it, the Hamilton Fire Department had responded appropriately to the smell of smoke call.

The court stated that the length of time on the scene is not as important as the fact that the crew was able to very quickly identify the problem as being the ceiling fan, and to take corrective action. The plant area was checked and there was no evidence of fire or smoke in the plant. There was no evidence at the time to warrant further investigation for other sources of fire. 

Overhaul was successfully completed when firefighters checked for hot spots and any signs of smoke or odour in the area around the fan, in the wall with the wiring that supplied power to the fan motor, and in the attic space above the fan. There was no fire and therefore, no need to establish a fire watch.

The court stated that the ordering of a fire watch is not a standard fire procedure. It is done for cause, not caution. The recommendation that the company president remain at the property was not evidence of a possible rekindle but was intended to reassure him that the source of the smell had been eliminated and that he should call the fire department if he had any further concerns.

The fire department demonstrated a reasonable standard of care in its response to the smell of smoke call. A thorough overhaul was conducted to ensure that no other area was ignited as a result of the overheated fan motor. The Hamilton Fire Department examined the whole plant for signs of heat, smoke or fire but none was found. 

The plaintiff failed to establish a link between the initial smell of smoke call and the later fire that caused substantial damage. The fire captain’s decision not to order a fire watch was reasonable because there was no basis for concern about the danger of a rekindle.

■ Lessons learned
A municipal corporation, having established and maintained a fire department, can be held liable in law for any damage caused through the fault or negligence of the fire department or its employees. A municipal fire department owes a duty of care to the community it was created to protect. 

That duty of care is to respond to calls for assistance in a reasonable manner, consistent with established policies and procedures, and without negligence.

Failure to order a fire watch was not negligent because there had been no reason to believe that an actual fire had occurred. Though there was evidence to suggest that this standard operating procedure might have changed in the 17 years between the date of the fire and trial, the court was only prepared to apply the standards in effect at the time for purposes of evaluating the reasonableness of the fire department’s conduct.

Once again, the court emphasized the importance of firefighters and fire chiefs preparing accurate records as quickly as possible following the incident. The court stated that, “The firefighter witnesses candidly admitted that the details of the smell of smoke call of April 9, 1989, had merged with the details of numerous such calls both before and after that date.” In the face of conflicting evidence between the company president and the fire department’s witnesses, the court relied heavily on the written account of events made at the time, rather than to the oral testimony of the witnesses. 

Halabura v. Fraserwood Fire Department (1994)
On April 28, 1988, the volunteer fire department had been fighting wild fires in a number of places, including one close to the plaintiff’s property. The department had engaged in back burning to prevent the fire from spreading further.

The following day, the fire re-ignited, spread to the plaintiff’s property and destroyed buildings, farm equipment, crops and automobiles and other personal property. The plaintiff was not at home and no attempts were made to phone the plaintiff and warn him of the approaching fire.

The plaintiff alleged that fire spread onto his property because the fire department failed to take reasonable care to extinguish a fire in some willows, which it had been fighting the previous evening and which re-ignited and spread to the plaintiff’s property. 

The evidence as to what steps had been taken to put out the fire differed substantially among witnesses for the plaintiff and the fire department. 

■ Legal issues
Was the department negligent in its efforts to extinguish the fire in the willows, which later re-ignited and destroyed the plaintiff’s property?

Was the department negligent in not alerting the absent plaintiff or his relatives of the fire’s approach so that he might try to save some of his moveable property?

■ Court’s findings
The case turned on whether the department failed to use reasonable care to extinguish the fire in the willows. According to expert testimony, the steps that the firefighters said they took to extinguish the fire were reasonable and prudent. 

Though the fire may well have been smouldering in the roots of the willows, the follow-up checks on that location were equally prudent. No evidence suggested that the department was in any way careless in its firefighting procedures or in its follow-up steps. 

The court did not consider there to be a duty on the department to try to locate the plaintiff in the circumstances. The RCMP were involved and were trying to keep ahead of the fire to see that there was no loss of life or personal injury. The firefighters were totally pre-occupied attempting to contain the fire and to limit its destruction.

This decision was upheld on appeal to the Manitoba Court of Appeal.

■ LESSONS LEARNED
A fire department will not be found to be negligent in the performance of its duties as long as the steps taken to extinguish a fire are reasonable and prudent.

There is no duty to locate and warn a plaintiff about a fire on his property when he is not home, especially when emergency services are preoccupied with trying to contain the fire and ensure no loss of life or personal injury.