You can sue a city for negligence in performing a governmental function if you can establish that the municipality owes you a duty of care, a New York appeals court has ruled in a lawsuit brought by a homeowner whose house burned down after the fire department told him it had been extinguished.
The blaze at issue began on the evening of Feb. 2, 2013 at the home of John Trimble, an Albany man who called 911 to report the emergency. The fire department responded to the call and proceeded to put out the fire. Some time later, according to Trimble, the lead investigator for the department advised him that the fire had been extinguished and it was safe to enter the house.
The Trimbles went in, retrieved some belongings and then left to spend the night with relatives. Several hours later, the fire started again and burned down the house. Trimble sued the city, claiming negligence. A trial judge dismissed the case, finding the city owned him no duty and was entitled to governmental immunity.
The Appellate Division’s third department disagreed. “We are of the view that, by making affirmative representations to plaintiffs that the fire had been fully extinguished and that it was safe to re-enter the home, the [d]epartment assumed an affirmative duty to plaintiffs,” Justice Karen Peters wrote for a three-judge panel in a ruling dated Nov. 23 that returned the lawsuit to a jury.
Nor could the city rely on the immunity that shields cities from lawsuits for discretionary actions taken during the performance of governmental functions. Though fighting fires invariably involves discretion, the city failed to demonstrate that its alleged negligence resulted from an exercise of judgment.
According to Trimble, the department failed, in violation of its own procedures, to remove a stack of firewood and the remains of lawn furniture and other debris from a window well that the department determined was the location of the second fire. A report by the department later showed that none of the firefighters could remember pulling away the debris.
“Thus, on this record, it cannot be said that the asserted negligence — failing to remove and fully extinguish a stack of firewood and damaged lawn furniture — was the consequence of an actual decision or choice on the part of the [d]epartment,” the court noted.