|Legal Opinion: |
Text of Document: July 31, 1995
Your question is, does the city have the authority to prohibit volunteer firemen from using sirens on their automobiles and from running red lights and violating other traffic laws during the course of responding to fire calls?
I told you orally that I thought the statutes governing your question gave municipalities authority to allow or prohibit the use of lights and sirens on the personal vehicles of volunteer firemen. However, I have since determined that if the fire chief has certified to the police chief that the volunteers are members of the volunteer fire department they are entitled by statute to use audio and visual warning devices while responding to emergency calls. However, in my opinion, the police officers of the city are authorized to cite or (in appropriate cases) arrest volunteer firemen who violate the statutory or municipal code standards required of emergency vehicle operators responding to emergencies.
There are several statutes governing the question of what vehicles are entitled to use lights and sirens. Tennessee Code Annotated section 55-8-101(2)(A) defines "authorized emergency vehicles" as:
vehicles of the fire department, fire patrol, police vehicles and such ambulances and emergency vehicles as are designated or authorized by the commissioner or the chief of police of an incorporated municipality, and operated by commissioned members of the Tennessee bureau of investigation when of official business.
Tennessee Code Annotated, section 55-8-102(2)(B) defines "authorized emergency vehicles in certain counties" as "vehicles owed by regular or volunteer firefighters...when such vehicles are used in responding to a fire alarm or other emergency call," in certain counties that do not include your county.
That statute, standing alone, probably does not represent authority for volunteer firemen in the city to use lights or sirens because the personal vehicles of such firemen probably do not fit within the definition of "authorized emergency vehicle," or "authorized emergency vehicle within certain counties." Arguably, such vehicles used by volunteer firefighters (except in certain counties that do not include your county) do not qualify as "authorized emergency vehicles because they are not vehicles" of "the fire department," or "fire patrol, police vehicles and such ambulances and emergency vehicles as are designated by the. .. chief of police." However, under the rules of statutory construction, several statutes on the same subject are read pari materia (together) to determine their meaning.
Tennessee Code Annotated, section 55-9-201(c) provides that:
Members of regular or volunteer fire departments may equip their privately owned vehicles to be used in responding to a fire alarm or other emergency with warning devices approved by the local fire chief, upon written certification to the local sheriff or police chief that such person is a member of such department. In the event such warning devices are abused or used for other than their intended purposes by a member of the fire department, the local fire chief shall revoke such member's privilege of using such warning devices and shall notify, in writing, the local sheriff or police chief of such revocation.
Certain counties are exempted from that provision; your county is not among them. For that reason, it appears that under that statute the fire chief is entitled to certify that volunteers are members of the fire department, and that volunteers so designated have a right, without further permission of the city, to use "warning devices approved by the local fire chief" in responding a fire alarm or other emergency.
The City's Municipal Code provides that, "Authorized emergency vehicles shall be fire department vehicles, police vehicles, and such ambulances and other emergency vehicles as are designated by the chief of police." That provision does not appear to take into account the statutory authority of the fire chief to certify volunteer firemen under Tennessee Code Annotated, section 55-9-201(c) and 55-9-402(d).
There are limits on the types of warning devices the fire chief can authorize. Tennessee Code Annotated, section 55-9-414(a)(1) restricts blue lights to "full time, salaried, uniformed law enforcement officers of the state, county or city and municipal governments of the state..." However, Tennessee Code Annotated, section 55-9-402(d)(1) apparently permits flashing red lights on a number of emergency type vehicles, including "privately owned of regular or volunteer firefighters certified in section 55-9-103(c)."
RUNNING RED LIGHTS AND OTHER TRAFFIC VIOLATIONS
Tennessee Code Annotated, section 55-8-108(b)authorizes the driver of an "authorized emergency vehicle" to do certain things, including run a red light or stop sign provided he does so "only after slowing down as may be necessary for safe operation," to exceed the speed limits "so long as life or property are not thereby endangered," and to disregard regulations governing direction of movement or turning in specified directions." Such actions may be taken only when "such vehicle is making use of audible and visual signals meeting the requirements of the applicable laws of this state." [Emphasis is mine.]
Does that requirement apply to the personal vehicles being used by volunteer firemen responding to fire calls? Tennessee Code Annotated, section 55-9-201 supports the conclusion that it does. Subsection (a) requires every motor vehicle to be equipped with a horn that meets certain standards. Subjection (b) requires "every police, fire department and fire patrol vehicle, and every ambulance and emergency repair vehicle of public service companies used for emergency calls" to be equipped with a "bell, siren or whistle of a type approved by the department, or local police authorities in incorporated cities and towns." In addition members of volunteer fire department living outside of incorporated communities "may equip vehicles, to be used in fire patrol work, with warning devices of the type approved by the department or by the sheriff of the county in which the vehicles are to be operated." Subsection (c) speaks only of "warning devices approved by the fire chief." However, read together Tennessee Code Annotated, section 55-8-101, which requires the use of both visual and audible signals by emergency vehicles, and Tennessee Code Annotated, 55-9-201, which requires on vehicles of various kinds horns, sirens, bells, and exhaust whistles, suggests the term "warning device" in subsection (b) and (c)(1) of the latter statute refer to an audible signal. That conclusion also appears to be supported by Mayor of Morristown v. Inman, 47 Tenn. App. 685, 342 S.W.2d 71 (1960).
TORT LIABILITY OF CITY FOR ACTS OF VOLUNTEER FIREMEN
The standard of care expected of persons authorized to run red lights and stop signs, exceed the speed limit, and makes turns in violation of regulations is quite high. Tennessee Code Annotated, section 55-8-108(d) provides that, "The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such persons protect the driver from the consequences of the driver's own reckless disregard for the safety of others." The operation of that standard can be seen in the recent case of Bobo v. Bedford County, 19 TAM 50-7, filed July 1, 1994. There the Tennessee Court of Appeals, Middle Section, found Bedford County 80% liable for an accident arising from the county fire truck driver's loss of control of the truck, due in part, to excessive speed, and failure to signal a turn. There is no question but that a municipal volunteer firemen responding to a fire, even in his personal vehicle, is a municipal employee for the purposes of the Tennessee Tort Liability Act. [Tennessee Code Annotated, section 29-20-102(2) and 29-20-107(d)] Under the Tennessee Tort Liability Act a municipality appears to be absolutely liable for the negligent operation of even an employee's private vehicle, if the vehicle is being operated "within the scope of his employment." I doubt a court would have any trouble finding that responding to a fire call is within the scope of a volunteer fireman's employment.
I see no reason why city officers could not charge volunteer firemen with a violation of either Tennessee Code Annotated, section 55-8-108 or the City's Municipal Code which essentially tracks that statute, if, in the officer's judgment, the volunteer fireman's speeding or other conduct is not consistent with the required standard of care contained in that statute or municipal code provision. Alternatively, or in addition, the fire chief is entitled to revoke the privilege of volunteer firemen who abuse the privileges contained in that statue and municipal code provision.
Sidney D. Hemsley
Senior Law Consultant