Fire Law: Can a Homeowner Just Say No?

April 1, 2012

Alerted by a passerby, a 14-year-old boy dials 911 to report a possible chimney fire in his house. Fire crews are dispatched, but the boy’s mother calls back to report she does not want the fire department to respond. She is informed that crews are already enroute. When personnel arrive at the scene, she meets the firefighters outside and reports the fire is out. She says there is no need for them to enter her house and asks them to leave.

Firefighters do not often think about issues like property rights and owner’s consent when responding to a structure fire. The right to enter is taken for granted, without much consideration for the legal niceties of landowner rights and personal privacy. Yet for other types of emergencies, firefighters are ever mindful of people’s rights. Take a medical emergency, for instance. One of the first things EMS personnel learn is that a person has a right to decline aid against medical advice.

Can a homeowner whose house is on fire refuse to let the fire department put out the fire? Can a homeowner with a smoke condition, or even an alarm sounding, stop firefighters at the door and prevent them from entering to investigate? And can a homeowner who initially asked for the fire department to respond because of a concern then demand that the fire department leave before firefighters believe the situation has been stabilized?

These questions arose following an incident in Orange County, NY, on Feb. 15, 2011, when a woman was upset because firefighters entered and would not leave her house. According to a March 12 article in the Times Herald-Record, Lisa Boyle’s 14-year-old son called 911 because he thought there was a chimney fire. The woman tried unsuccessfully to cancel the call. When firefighters from the Slate Hill Volunteer Fire Department arrived, she asked them to leave. The firefighters dutifully refused and remained in the house for the next hour investigating. Boyle referred to it as an “occupation” of her home and attended a fire district board meeting to express her frustration. She brought a local reporter with her to be sure her concerns were covered by the media.

At the board meeting, the fire district’s attorney, Shawn O’Connor, gave the fire department’s side of the argument: “We have to respond and we have to make sure there’s no fire and no threat…You didn’t know whether there was a fire in your house or not until they checked.” O’Connor also made reference to the possible liability the department could incur if there had been a fire and firefighters had not been diligent in investigating the initial report. The facts of the case offer us the opportunity to explore the scope of a fire department’s legal duty and authority.

Scene authority

Probably as much as any single issue, the legal duty of a fire department to respond to a fire distinguishes what we do as firefighters from what we do as emergency medical providers. To put it simply, a competent person may have the legal right to refuse medical treatment against medical advice, but a property owner (competent or otherwise) does not have a similar legal right to refuse firefighters the right to enter a property to look for the source of smoke, investigate an alarm or extinguish a fire.

Why should a competent adult be able to decline medical aid, but not refuse to let the fire department enter her home to investigate a possible fire? It is not because firefighters are more knowledgeable about the dangers of fire than a homeowner. It is not because fire departments are worried about legal liability if they do not enter, although liability is a valid concern. Both arguments are commonly cited as justification for a firefighter’s right of entry, but are really nothing more than the proverbial tail wagging the dog.

To fully understand the fire department’s authority, we must look at this topic from four perspectives: historical, philosophical, practical and legal.

Historical perspective

Understanding the right of a firefighter to enter someone’s home or business requires consideration of the historical context in which the law developed. Fires have decimated most urban areas at one time or another. The Jamestown, VA, fire of 1608 nearly destroyed the first English settlement in the New World (see “Protecting Jamestown, Then and Now” by Charles Werner, Firehouse®, April 2007). The Great Fires of Chicago, London and Shanghai are but a few examples of conflagrations that have helped shape the law.

Unlike a simple medical ailment, a fire does not affect one person. A fire left unchecked threatens neighbors and could potentially devastate an entire community. This historical discussion leads us into a philosophical discussion.

Philosophical perspective

In some ways, a fire can be compared to a deadly infectious disease such as the plague, smallpox or leprosy. Until the development of antibiotics, these diseases warranted extreme measures, including forced quarantine and the burning of contaminated property. The threat to the many justified the deprivation of the civil rights of those infected.

In a similar vein, the right of firefighters to enter homes and property does not flow from a duty to help the owner of property that is on fire. Rather, it flows from the risk that a fire in someone’s home poses to the public at large. No doubt firefighters have a moral duty to the person whose house is on fire, but the reality is that a larger duty is owed to the person’s neighbors, the neighbors’ neighbors and so on. This duty owed to the public in general is what allowed firefighters in earlier times to destroy uninvolved buildings in advance of a fire in an effort to cut off the fuel supply.

Compare the duty a fire department owes to the public to extinguish a fire with the duty owed to an individual patient at a medical incident. The right of a person to decline medical aid flows from the fact that each person has a right to be free from bodily contact, a right that is respected and enforceable by both civil and criminal law. Without the patient’s consent, we have no right to treat or touch the patient, absent a public health emergency.

Practical perspective

While the historical and philosophical perspectives make a compelling argument for firefighters to have a right to enter, consider what would be involved logistically if the law granted property owners the power to stop a firefighter from entering a property. At a time when firefighters can least afford to delay operations, they would have to determine whether the person seeking to stop them could do so lawfully. Essentially, firefighters would have to determine whether a person claiming to be the homeowner or property owner is who he says he is and is legally authorized to deny firefighters access.

The potential for complex title issues involving ownership together with the impact of mortgage rights, tax liens, divorces, leases, wills, partnerships and a host of other legal quagmires is mind boggling. Add to that the possibility of someone acting in bad faith and it is apparent it would be unreasonable to expect firefighters to make ownership determinations of property under emergency conditions.

Legal perspective

From the legal perspective, the authority of a fire department to respond to alarms and enter homes and businesses flows primarily from laws at the state and local levels. These laws give fire departments broad rights to enter homes and businesses for the specific purpose of extinguishing fires and mitigating fire hazards without owner consent.

Consider the following from Rhode Island: § 23-37-1 Police authority of fire company officers at fire – Right of entry. The chief, chief engineer, assistant engineer, captain, lieutenant or any other executive officer of any…organization organized or created for the purpose of extinguishing fires and preventing fire hazards…in response to an alarm for such a fire shall, in the absence of the chief of police, have the power to suppress any tumult or disorder and to command from the inhabitants of the city or town all needful assistance for the suppression of fires and in the preservation of property exposed to fire; the officers above enumerated shall also have authority to go onto and enter any property or premises and to do whatever may reasonably be necessary in the performance of their duties while engaged in the work of extinguishing any fire or performing any duties incidental thereto.

Here is a local municipal code provision from Downers Grove, IL: Section 17.19. Right of entry of fire department – The fire department and the members thereof shall have the right to enter upon any premises within the Village for the purpose of extinguishing any fire or saving persons or property thereat, or securing a supply of water or to find any cistern, well or other water supply and determine the best way to reach the same in case of fire or in the performance of their duties, and it shall be unlawful for any person to interfere with, prevent or obstruct the department or any member thereof from so coming or being on such premises. (R.O. 1925, § 153.)

Even in the absence of specific statutes, courts have recognized the unique challenge the threat of fire poses. Consider the following quote from the Supreme Court of California in an 1853 case that arose when a San Francisco house was intentionally blown up with gunpowder in a tactical effort to stop an advancing fire on Dec. 24, 1849: “The right to destroy property to prevent the spread of a conflagration as been traced to the highest law of necessity and the natural rights of man, independent of society or civil government. It is referred by moralists and jurists to the same great principle, which justifies the exclusive appropriation of a plank in a shipwreck, though the life of another be sacrificed; with the throwing overboard goods in a tempest for the safety of a vessel; with the trespassing upon the lands of another to escape death by an enemy…

“A house or fire, or those in its immediate vicinity, which serve to communicate the flames, becomes a nuisance which it is lawful to abate, and the private rights of the individual yield to the considerations of general convenience and the interests of society. Were it otherwise, one stubborn person might involve a whole city in ruin by refusing to allow the destruction of a building which would cut off the flames and check the progress of the fire, and that too, when it was perfectly evident that his building must be consumed.” (Surocco v Geary, 3 Cal 69; 58 Am Dec 385, January 1853)

It’s not about you

We began this column by asking difficult questions raised by Lisa Boyle about whether the fire department should have honored her request to stop responding, not enter her home and leave when she requested. Based on history, philosophy, practicality and the law, the clear answer to those questions is that the fire department did not respond to her son’s 911 call solely for her benefit. The fire department responded on behalf of the community because what happens in Boyle’s house – fire-wise – could affect others in the community. A firefighter’s right of entry to investigate or extinguish a fire is not based on the consent of the property owner, nor even on the needs of the property owner. It is based on the needs of society.

As much as the above review of the history, philosophy, practicality and the law related to a firefighter’s right to enter explains answers our initial questions, there remains an interesting question: What if there is no chance of a fire extending from one person’s home or property to another? Perhaps the fire is in a rural area and presents no public threat whatsoever. Assuming the fire department could address the ownership issue (a huge assumption), should the authority of the fire department be limited in such circumstances? We will leave that question for another time – but for now the law does not recognize such an exception.

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