My November 2002 review of Wallace v. Ohio Dept. Of Commerce, Div. Of State Fire Marshal, in which the court wrestled with the public-duty doctrine that defines the scope of government liability for a negligent inspection, seems to have raised some questions. While the court in that case ultimately resolved the case on a statutory interpretation, the continuing debate over public duty has caused much confusion in the fire service.

The Ohio court held that the Ohio statute had overturned any immunity based on the public-duty doctrine; however, that immunity is still the rule rather than the exception. The immunity rule does seem to conflict with firefighters' everyday understanding. So exactly what is the liability of the fire service in firefighting and inspecting buildings and why? Understanding this issue requires an in-depth analysis of the problems of duty and causation in tort law.

The first problem is the word “duty.” The legal system has a distressing tendency to give simple words several meanings in different contexts. Duty is one such word that is misused. The public and the fire service uses duty to mean an obligation to act, but the legal system has a totally different use of duty in the context of negligence.

To define terms, negligence is a tort, a civil wrong for which the remedy is damages. Negligence typically has four elements: duty, violation of the standard of care, causation and damages.

For this column, we are only concerned with duty and causation. Given the supposed litigious nature of American society, it's often surprising to hear that a person may violate a standard of care and cause damages but still not be liable because he owes no duty. Yet that is the precise effect of the duty and causation rules. In negligence actions, “duty ‘… is the court's “expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.”’ (Prosser, Law of Torts (4th ed. 1971), pp. 325-326.)

In effect, the legal system is asking not whether the actor owes a duty, but if the defendant is entitled to compensation from a plaintiff who doesn't act properly. This is a very different question from the usual meaning of the word duty, since it ultimately determines who should bear certain losses.

Duty is central to the concept of negligence: Without a duty there can be no negligence. In the context of negligence, duty describes a relationship between parties that will support an action in negligence. As the court in Wallace states, “Any number of considerations may justify the imposition of duty in particular circumstances, including the guidance of history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall.”

The best example of a duty owed by the fire service is in driving a fire truck. In virtually all states drivers owe a duty of care to other drivers. However, it isn't clear that such a duty exists when fighting fires or inspecting buildings. To understand why you may owe a duty to drive carefully but not fight fires carefully you have to go back into the historical development of negligence.

Duty developed in the context of negligence during the 19th and 20th centuries. The courts were not readily convinced that tort duties could be owed to strangers. As one example, it was less than 100 years ago that the manufacturer of a product was held to owe a duty to a consumer who bought the product from a dealer. Even today, the issue of duty is routinely litigated — for example, does a couple who gives a party in their home owe a duty to a person on a highway injured by a drunken guest? While the concept of duty has lost much of its force in product liability, it remains a very important issue in government liability.

Duties owed by governmental officials are classed as “public duties.” The issue of public duty was first articulated by the U.S. Supreme Court in 1855:

“It is an undisputed principle of the common law, that for a breach of a public duty, an officer is punishable by indictment.… The powers and duties of conservator of the peace exercised by the sheriff … wielding … executive power for the preservation of the public peace[;]… it is a public duty, for neglect of which he is amenable to the public, and punishable by indictment only.… But no instance can be found where a civil action has been sustained against him for his default or misbehavior as conservator of the peace by those who have suffered injury to their property or persons through the violence of mobs, riots, or insurrections. In the case of Entick v. Carrington, State Trials, vol. 19, page 1062, Lord Camden remarks: ‘No man ever heard of an action against a conservator of the peace, as such.’” South v. Maryland ex rel. Pottle, 59 U.S. 396, 15 L. Ed. 433 (1855).

This decision supported what became known as the public-duty doctrine, or as is sometimes said, a “duty to all is a duty to none.” As a result, injured persons could not sue a public officer for failure of a duty to the public in general, even if the effect is to immunize clearly negligent activity. Why this doctrine shielding a negligent party for injuries to strangers continued to exist as negligence evolved is something of a mystery, yet it exists and has real importance. It has even been incorporated into recent statutes. In New Hampshire, for example, 154:1-d Fire Department Liability; Public Duty Rule; Status of Firefighters reads:

“I. Firefighting and other emergency service provided by a fire department shall not, in itself, be deemed to be the making of a promise, or the undertaking of a special duty, towards any person for such services, or any particular level of, or manner of providing, such services; nor shall the provision of, or failure to provide, such services be deemed to create a special relationship or duty towards any person, upon which an action in negligence or other tort might be founded. Specifically:

“(a) The failure to respond to a fire or other emergency, or to undertake particular inspections or types of inspections, or to maintain any particular level of personnel, equipment or facilities, shall not be a breach of any duty to persons affected by any fire or other emergency.

“(b) When a fire department does undertake to respond to a fire or other emergency, the failure to provide the same level or manner of service, or equivalent availability or allocation of resources as may or could be provided, shall not be a breach of any duty to persons affected by that fire or other emergency.

“(c) A fire department shall not have or assume any duty towards any person to adopt, use, or avoid any particular strategy or tactic in responding to a fire or other emergency.

“(d) A fire department, in undertaking fire prevention activities, including inspections, or in undertaking to respond to a fire or other emergency, shall not have voluntarily assumed any special duty with respect to any risks which were not created or caused by it, nor with respect to any risks which might have existed even in the absence of such activity or response, nor shall any person have a right to rely on any such assumption of duty.”

A key problem with analyzing the scope of duty is that it is related to the third element of negligence, causation. Duty and causation interact to define the public policy issues in a negligence case. In some courts the policy issues are treated as duty issues, and in others they're included under causation. In all cases the answer in one area affects the other.

Causation in negligence has two separate and distinct components. One is “cause in fact,” which describes from a factual or technical sense what actually occurred in the accident. Cause in fact may be complex, but the concept is not very difficult to describe. Any action which tends to make an event occur can be a cause in fact.

It is the second component, “proximate cause,” which is much more complicated. Proximate cause describes the kind of cause-and-effect situations where the law requires compensation. This explains the similarity to duty. Causation is incredibly confusing, even for lawyers As Dean Prosser put it, “Proximate cause remains a tangle and a jungle, a palace of mirrors and a maze.” (“Proximate Cause in California,” 38 Cal Law Review 369, 1950.)

Proximate cause “is ordinarily concerned, not with the fact of causation, but with the various considerations of policy that limit an actor's responsibility for the consequences of his conduct.” Mosley v. Arden Farms Co. (1945) 26 Cal.2d 213, 221 (conc. opn. of Traynor, J.)

In other words causation, like duty, defines the policy issues involved in holding a party responsible. When a building burns down should the fire department, as a matter of policy, be held in any way responsible?

What makes duty and proximate cause so complicated is that they both represent policy judgments made by common law courts to reflect what they think is the public's desire for action or inaction. The rationales for the courts' decisions on these policy issues are both complex and obscure. In Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), the most famous torts case in American history, the court split exactly on the point of duty and causation. The majority held that the defendant owed no duty to protect a railroad passenger from injury if the method of causing injury was unforeseeable. The dissent argued that a duty was owed but that the issue should be analyzed in terms of proximate cause as a matter of policy (Andrews, J. dissenting). What courts “mean by the word ‘proximate’ is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point.”

Part of the confusion is the language. According to Prosser and Keeton on the Law of Torts, “The term ‘proximate cause’ is applied by the courts to those more or less undefined considerations which limit liability even where the fact of causation is clearly established. The word ‘proximate’ is a legacy of Lord Chancellor Bacon, who in his time committed other sins. The word means nothing more than near or immediate; and when it was first taken up by the courts it had connotations of proximity in time and space which have long since disappeared. It is an unfortunate word, which places an entirely wrong emphasis upon the factor of physical or mechanical closeness. For this reason ‘legal cause’ or perhaps even ‘responsible cause’ would be a more appropriate term.

“‘Proximate cause’ — in itself an unfortunate term — is merely the limitation which the courts have placed upon the actor's responsibility for the consequences of the actor's conduct. In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would ‘set society on edge and fill the courts with endless litigation.’ As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy.”

At the present time only a handful of states have abandoned the public-duty doctrine, and even fewer have looked at the issue of proximate cause. The Wallace court clearly runs against the national body of law in even allowing the fire service to be sued on a public duty. It made its decision based on a statute.

However, given the very complex nature of these issues it's critical that the fire service be involved in the debate. The problem is that most cases involving the public service have been traditionally disposed of on the grounds of no duty, so there has been little discussion of the role of causation in governmental liability. At the very least, the fire service should be very careful in the use of the term “duty” when describing any of its activities.

---

Vincent M. Brannigan is an attorney and a member of the Maryland and District of Columbia bars. A professor in the Department of Fire Protection Engineering at the University of Maryland, he is also a lecturer at the National Fire Academy. His father, Francis Brannigan, is the author of Building Construction for the Fire Service.