Request By:
Honorable Buddy R. Salyer
Morehead City Attorney
151 East Main Street
Morehead, Kentucky 40351
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of February 12 in which you indicate that the Morehead Fire Department has been in the practice of making fire runs outside of the city limits to places in Rowan County. However, in so far as can be determined, there has been no ordinance enacted authorizing this practice nor any compensation fixed for such services. As a matter of fact, in some instances the practice has been to bill the property owner for the service rendered but in many instances no compensation has been received. Also, Rowan County has made small donations from time to time for this service. The basic question raised is whether the city can legally operate its fire equipment outside the city limits. More specifically you raise the following related questions:
"1. May a city of the fourth class operate fire apparatus outside the boundaries of the city pursuant to KRS 95.830 if the city does not receive full compensation for the service?
"2. May a city of the fourth class operate fire apparatus outside the city boundaries pursuant to KRS 95.830 if it does receive full compensation for the service.
"3. If the answer to Number 2 above is in the affirmative, what specific steps, including specific terms and specific regulations, must be adopted by the city in order to operate legally under KRS 95.830?
"4. What liability would a city of the fourth class have to a taxpayer of that city if he suffered fire damage while the city's fire apparatus was occupied by a call outside the city limits? "
KRS 95.830 specifically authorizes any city owning or controlling fire apparatus to take it to extinguish fires at any point in the county or into areas of another county as determined by the city legislative body. See
Jefferson Co. Fiscal Court v. Jefferson County, 278 Ky. 785, 129 S.W.2d 554 (1939). The statute further provides that the apparatus shall be used only in conformity with reasonable terms and regulations which the city legislative body may prescribe. This statute clearly authorizes the city to operate its fire fighting equipment outside the city and anywhere in the county. However, it must do so pursuant to an appropriate ordinance setting forth reasonable regulations. No mention of compensation is made in the statute, however, it is reasonable to assume that the use of such apparatus outside of the city should be pursuant to a contractual agreement involving reasonable compensation as consideration which would follow the enactment of an appropriate implementing and regulatory ordinance. Such agreement should be between the city and the county for fire protection for county residents. We might point out here that the city can also contract with the county for fire protection outside the city pursuant to Ch. 75 KRS, particularly KRS 75.050.
We cannot attempt however to indicate to you the specific terms of the regulations and ordinance that should be adopted by the city. You may possibly obtain some assistance in this area from the Kentucky Municipal League, P.O. Box 11690, Lexington, Kentucky 40577, in the form of a model ordinance on the subject.
In response to your fourth question, there would be no liability on the part of the city in the use of its fire fighting equipment outside the city. Not only is the nonliability specifically provided for in KRS 95.830(2) but more importantly such has been held in the case of
Frankfort Variety, Inc. v. City of Frankfort, Ky., 552 S.W.2d 653 (1977). The Supreme Court discussed not only the tort liability of cities in general, but more specifically, their nonliability where they are performing acts which affect all members of the general public rather than a member of the public on an individual basis, citing the case of
City of Louisville v. Louisville Seed Co., Ky., 433 S.W.2d 638 (1968); and
City of Russellville v. Greer, Ky., 440 S.W.2d 269 (1969). The court, in concluding that the city could not be held liable in fighting fires which is a municipal function affecting the general public, said and we quote:
". . . In any event, when a city provides police and fire protection or, as in the case of Louisville Seed Company, supra, flood protection, the degree of success that should or will be attained in any particular instance cannot be guaranteed, nor can it be defined in terms of duties. A city cannot be held liable for its omission to do all the things that could or should have been done in an effort to protect life and property."
The above case would indicate that since no liability would attach to the city in using its fire fighting equipment outside the city under appropriate authorization, such nonliability would equally apply to the city were a resident of the city to suffer fire damage to his property while the city's fire apparatus is legally being operated outside the city. The city should, however, make every effort, under normal conditions, to see that the city is not left completely unprotected.