§ 154:1-d — Fire Department Liability; Public Duty Rule; Status of Firefighters

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.
(e) In this section, "fire department" means any fire department of the state or its political subdivisions, including municipal fire departments organized under RSA 154:1, as well as private firefighting units which have been certified by the state fire marshal under RSA 153:4-a. For the purposes of this section and in addition to any other protections afforded to state agencies under law, the division of fire services, department of safety, shall be deemed a "fire department."
II. Any firefighter, paid or volunteer, who is acting in an official capacity under the direction or supervision of the elected or appointed fire chief, or designee, of a municipal fire department organized in accordance with RSA 154:1, or who is participating in a fire department activity sanctioned by the local governing body or its designee, shall be an agent of the municipality, enjoying the same privileges and immunities as the municipality or employees of the municipality. Such privileges and immunities include, but are not limited to, indemnification for civil rights damages to the extent set forth in RSA 31:106, and indemnification for any other accidental damages to the extent set forth in RSA 31:105, if the municipality has adopted that section.
III. Decisions of a fire chief or the chief's subordinates concerning the allocation and assignment of firefighters and equipment, and the strategies and tactics used, shall be the exercise of a discretionary, policy function for which neither the officer nor a municipality shall be held liable in the absence of malice or bad faith, even when such decisions are made rapidly in response to the exigencies of an emergency.
IV. This section shall not be construed to affect the application of common law immunities, or of other statutes which may pertain to the liability of municipalities or firefighters, including, but not limited to RSA 507-B and RSA 508:17.

Legislative History

1993, 28:5, eff. Jan. 1, 1994.