|Legal Opinion: |
Text of Document: February 1, 1996
This letter is in response to your questions regarding the sample Interlocal/Mutual Aid Agreement that we discussed earlier this week. Your questions specifically concerned the following provision of this agreement:
Pursuant to Tennessee Code Annotated § 29-20-107(f), for liability purposes only, employees of the responding party shall be considered employees of the requesting party while at the scene of the emergency and undertaking operations pursuant to this agreement.
You wanted to know why this provision was in the agreement and whether this language could be altered without violating the statutes under which this agreement was authorized. Answering the last question first, I have reviewed the code, and there is no reason why this provision cannot be altered or even deleted from the agreement.
I have discussed the above provision with Ray Crouch, MTAS Fire Consultant, and we agreed that there were two closely related reasons why it was put in the sample agreement. First, to attempt to limit potential liability to one party, and second, to encourage the responding party to provide assistance by limiting their liability.
Tennessee Code Annotated § 29-20-107(f) provides that cities may confer employee status for purposes of the Tennessee Governmental Tort Liability Act to another city pursuant to a valid interlocal agreement. Therefore, the above provision transfers any liability from the responding party to the requesting party while at the scene of the emergency. With this provision, only one city will be liable for any damages, instead of every city participating being brought into court. Ray pointed out to me that typically at a fire scene, a fire department providing mutual aid assistance will be acting at the direction of the chief of the department requesting help. Therefore, the responding party will not be liable for tactical or strategic decisions that are usually made by the requesting department. For this reason, the responding party is still responsible "for any damage caused by its own apparatus and/or negligence of its personnel while enroute to or returning from" the emergency scene.
Also, this provision attempts to encourage mutual assistance by exculpating the responding party. As you know, this agreement only provides that a responding party "will attempt to provide" assistance when requested. Presumably, a responding city would be more reluctant to provide any assistance if they knew that they were going to be liable for any damages that might occur at the scene of the emergency.
As stated above, there is no reason why this provision cannot be amended or deleted altogether from the agreement. It was placed in the sample to simplify liability issues and to encourage municipalities to provide assistance. Please let me know if I can answer any further questions regarding this or any other matter.
MTAS Legal Consultant