Steinhardt v. Town of North Bay Village, 60-516

• Decision Date: 14 September 1961
• Docket Number: No. 60-516,60-516
• Parties: Milton STEINHARDT and Esther Steinhardt, his wife, Appellants, v. TOWN OF NORTH BAY VILLAGE, a municipal corporation, Appellee.
• Court: Florida District Court of Appeals

Page 764

132 So.2d 764

Milton STEINHARDT and Esther Steinhardt, his wife, Appellants, v. TOWN OF NORTH BAY VILLAGE, a municipal corporation, Appellee.

No. 60-516.

District Court of Appeal of Florida, Third District.

Sept. 14, 1961.

Rehearing Denied Oct. 3, 1961.

Snyder & Young and Malcolm H. Fromberg, North Miami Beach, for appellants.

Feibelman, Friedman, Hyman & Durant, Miami, for appellee.

Before PEARSON, TILLMAN, C. J., and HORTON and CARROLL, JJ.

PEARSON, TILLMAN, Chief Judge.

The plaintiffs appeal from a final judgment entered upon defendant's motion to dismiss the amended complaint for failure to state a cause of action. The facts as admitted upon the motion were that the plaintiffs were the owners of certain improved real property within the limits of the defendant city, and a fire threatened to destroy plaintiffs' building; that defendant municipal corporation, pursuant to a call and its regulations, dispatched its agents who formed a portion of its fire department to the plaintiffs' property; and that because of the negligence of its agents, the fire destroyed plaintiffs' building. We affirm.

The acts of alleged negligence may be best described by quoting from the complaint itself:

'A. That the defendant dispatched a fire truck to be utilized in extinguishing the aforedescribed fire, which fire truck was improperly equipped, i. e.: that the fire truck was to have contained thereon at all times three hundred (300) gallons of water to be utilized to extinguish fires. That the fire truck so dispatched to the fire as aforedescribed did not have three hundred (300) gallons of water thereon for the defendant, through its agents and/or employees, utilized said water several hours prior to the fire aforedescribed for the purpose of watering lawns and the defendant, its agents and/or employees, forgot to replenish the supply upon said fire truck; and/or in the alternative;

'B. That the defendant dispatched its agents, servants, and/or employees to the said fire, to help extinguish same, who were improperly trained for said purposes and who did not know how to fully operate and employ the defendant's fire-fighting equipment, i. e.: the said defendant's agents, servants and/or employees dispatched to the said fire did not know the location of the nearest fire hydrant nor how to hook up the defendant's fire hoses to the defendant's fire hydrant to secure the water to be used to extinguish said fire. The said defendant's agents, servants and/or employees, because of their lack of training and/or knowledge, called the Miami Beach Fire Department for assistance and instructions in hooking up said equipment. That from the time said call was made until the Miami Beach Fire Department arrived at the scene forty (40) minutes expired--all during which time the plaintiffs' building was burning down, and the defendant was unable, in whole or in part, because of the foregoing, to extinguish said fire.'

The trial judge found that the complaint failed to state a cause of action because a municipality is not liable for a tort arising out of the insufficient manner in which its fire department proceeds in fighting a fire. ¹ Counsel are agreed that the trial judge considered Hargrove v. Town of Cocoa Beach, Fla.1957, 96 So.2d 130, 60 A.L.R.2d 1193, and determined that the holding therein does not extend the area of possible municipal liability to include a city's negligent failure to properly protect property from loss by fire.

The gravamen of the complaint is the failure of the city to properly carry out a function it has undertaken and for the performance of which it has presumably collected taxes from the plaintiffs. It is not alleged that the city has failed to provide a fire department; rather, it is urged that it provided an ineffective one insofar as the needs of the plaintiffs were to be met. It is argued that this is another way of saying that the plaintiffs have suffered a direct personal injury proximately caused by the negligence of a municipal employee while acting within the scope of his employment, and therefore the facts come within the statement of the law contained in the Hargrove case at page 133, paragraph .

In a consideration of the problem, we are not greatly aided by the many cases from other jurisdictions, which almost uniformly hold that a city is not liable. The greatest number of the cases cited base the holding upon the conclusion that the maintenance and operation of a municipal fire department are a governmental function, and in the exercise of such function, the municipality is immune to liability. The distinction between proprietary and governmental functions is no longer valid as a method of allocation municipal liability in this state. It is sometimes said that failure to provide adequate fire protection involves the denial of a benefit owing to the community as a whole, but that it does not constitute a wrong or injury to a member thereof so as to give rise to a right of individual redress. Notwithstanding such reasoning, our Supreme Court in Mugge v. Tampa Waterworks Co., 52 Fla. 371, 42 So. 81, 6 L.R.A.,N.S., 1171, held that where a private water company fails to furnish an adequate water supply pursuant to its contract with the city, and an individual suffers fire damage because of this failure, the individual has a right of action against the company even though the benefit of the contract runs to the community as a whole.

If we look for reasons rather than reasoning in the...