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A TOWN IS NOT LIABLE FOR THE NEGLIGENCE OF A VOLUNTEER FIREFIGHTER IN A “FIRE DISTRICT,” BUT IS LIABLE FOR THE NEGLIGENCE OF A VOLUNTEER FIREFIGHTER IN A “FIRE PROTECTION DISTRICT” (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the application for leave to file a late notice of claim against the town in this traffic accident case should not have been denied on the ground the town was not liable for an accident caused by a member of the fire company. Plaintiff alleged the defendant driver was acting within the scope of his duties as a firefighter at the time of the accident. The Fourth Department noted that a town is not liable for the negligence of a volunteer fireman in the employ of a “fire district,” but is liable for the negligence of a member of a “fire protection district:”

A fire district is a “wholly independent political subdivision whose members, including its volunteer firemen, are employees of the district and not of the town” … . The “fire district rather than the town appoints its own members, furnishes fire and ambulance service and is liable for negligence on the part of its members, including their negligent operation of vehicles” … . Accordingly, a “town is not liable on the theory of respondent superior for the negligence of a volunteer fireman in the employ of a fire district” … .

In contrast, “a fire protection district is simply a geographic area, with no independent corporate status, for which the town board is responsible for providing for the furnishing of fire protection” …  and, “[t]o that end, [a town board] may ‘contract with any city, village, fire district or incorporated fire company . . . for the furnishing of fire protection’ ” … . “Members of the fire departments or companies established within a fire protection district ‘are deemed officers, employees, or appointees of the town[,] and the town is liable for any negligence on the part of such members’ ” … . Matter of Froelich v South Wilson Volunteer Fire Co., 2021 NY Slip Op 05207, Fourth Dept 10-1-21

 

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