April 2, 1993
Recently you asked me whether the Town could extend fire service on a contract basis outside corporate limits and, if so, whether this would increase the town's liability exposure. The answer to the first question is yes. To the second, no, but only if the town is answering a call pursuant to contract.
T.C.A. 6-54-601(c) provides that:
Any incorporated city or town may provide fire protection to citizens outside the territorial limits of the municipality on an individual contract basis whenever an agreement has been made for the extension of that service by the legislative body of the municipality and the legislative body of the county in which the fire protection is to be provided...
The town may thus provide fire protection service on a contractual basis but only after it has reached an agreement to do so with the county commission.
As to the liability angle §§6-54-602 and 6-54-603 specifically retains governmental immunity for officers and employees of the town and fire department who act in accordance with §6-54-601. The problem is making sure the town is in accordance with §6-54-601. You mentioned that presently it is the custom of the town to answer calls to those parties whose insurance companies have agreed to pay the fee. I presume this is not in writing, and I must admit that this practice makes me a little nervous since 6-54-601 expressly calls for individualized contracts. I also presume that you do not presently have an agreement with the county commission. I believe the least the town can do is enter into contracts with those insurance companies that will pay the fee and list the homeowners so covered after you make an agreement to do so with the county.
You also mentioned that you were worried about what the town should do if there were fires both in town and with a contract customer. The best way to handle this would be to clearly state in the contract that in case of conflicting fires the one in town would have priority in response. This in and of itself furnishes a strong argument for individualized contracts with each home owner. Dicta in Fulenwider v. Firefighters Association Local 1784, 649 S.W.2d 268 (Tenn. 1982), indicates that no cause of action lies in citizens for failure to provide fire protection. Since you will have entered into a contract with subscribers, this may not apply but a clause in the contract clearly stating your priorities should serve to protect the town.
In short, contracts with each home owner who desires fire protection service by the town is the way to go. That way the town is clearly protected by statute and from suit by someone whose home has burned while the fire department was busy in town.
MTAS has hired a fire consultant, Mr. Ray Crouch, to help in the planning and organization of fire departments. He would be an excellent source of advice on how far from town the fire department should respond and how many subscribers it should take. He is in Nashville and can be reached at (615)-256-8141.
I have enclosed the materials cited herein along with several sample contracts and I believe these will do the job for you. Please feel free to contact me if I may be of any further assistance on this or any other matter.
Very truly yours,
MUNICIPAL TECHNICAL ADVISORY SERVICE