Town of Freetown v. New Bedford Wholesale Tire, Inc.

Decision Date16 July 1981
Citation423 N.E.2d 997,384 Mass. 60
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Philip N. Beauregard, Fairhaven (Carleton A. Lees, Town Counsel, New Bedford, with him), for plaintiff.

David A. McLaughlin, New Bedford, for defendants.


BRAUCHER, Justice.

The plaintiff town seeks to recover from the defendants its cost of fighting a fire on land of the defendant corporation. It claims damages on the basis of common law tort liability for negligence or misrepresentation and on the basis of G.L. c. 266, § 8, and G.L. c. 111, § 145. The complaint was dismissed in the Superior Court under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), and we transferred the plaintiff's appeal to this court on our motion. We affirm the judgment for the defendants.

The complaint contained two counts. In the first the town alleged that the defendants had negligently dumped some 750,000 used tires on land in the town, violating G.L. c. 111, §§ 143 & 150A, and creating a nuisance and a fire hazard, and that as a result the town fire department was unable to inspect the premises properly and unable to extinguish promptly a fire that occurred on the premises. As a result the town "incurred greater expense than usual and necessary" in extinguishing and controlling the fire. The second count added an allegation that the defendants "falsely and maliciously with intent to defraud, mis-stated to the Board of Health ... and the Board of Selectmen the proposed use and scope of operations at the site," and that as a result the town boards could not take proper precautions.

There seems to be no authority for common law recovery by a town of its expenses in fighting a fire. See People v. Wilson, 240 Cal.App.2d 574, 576, 49 Cal.Rptr. 792 (1966); Portsmouth v. Campanella & Cardi Constr. Co., 100 N.H. 249, 253, 123 A.2d 827 (1956); Howard v. Soo Line R.R., 63 Wis.2d 500, 503, 217 N.W.2d 329 (1974); Allenton Volunteer Fire Dep't v. Soo Line R.R., 372 F.Supp. 422, 423 (E.D.Wis.1974); Annot., 90 A.L.R.2d 873 (1963). No claim is made for fire damage to town property of a type that would give rise to damage liability to a private owner for negligence or nuisance. G.L. c. 111, § 145. See Dartmouth v. Silva, 325 Mass. 401, 404, 90 N.E.2d 832 (1950); Hanifin v. C & R Constr. Co., 313 Mass. 651, 48 N.E.2d 913 (1943); cf. United States v. Chesapeake & O. Ry., 130 F.2d 308, 310 (4th Cir. 1942) (expense of protecting public property from advancing fire). Expense incurred by the town in extinguishing a fire on private land stands on a different footing. See State v. Boston & Me. R. R., 99 N.H. 66, 71, 105 A.2d 751 (1954). Once a town establishes a fire department under G.L. c. 48, § 42, as amended by St.1973, c. 1048, § 1, the fire chief has "charge of extinguishing fires in the town and the protection of life and property in case of fire." Safeguards against fire are maintained "for the benefit of the public and without pecuniary compensation or emolument." Tainter v. Worcester, 123 Mass. 311, 316 (1877).

Under these authorities the right of the town to recover firefighting expenses depends on statute. See, e. g., G.L. c. 48, § 59A, providing for a written agreement for reimbursement in case of aid to another municipality; G.L. c. 148, § 5, abatement of fire hazard at owner's expense on twenty-four hour notice. Such statutes have generally been strictly construed. See United States v. Burlington N., Inc., 500 F.2d 637,...

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  • District of Columbia v. Air Florida, Inc.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • December 28, 1984
    ...a unique type of hazard); People v. Wilson, 240 Cal.App.2d 574, 576, 49 Cal.Rptr. 792 (1966); Town of Freetown v. New Bedford Wholesale Tire, 384 Mass. 60, 423 N.E.2d 997, 997-98 (1981); City of Bridgeton v. B.P. Oil, Inc., 146 N.J.Super. 169, 369 A.2d 49, 54 (1976); Koch v. Consolidated Ed......
  • Boston v. Smith & Wesson Corp.
    • United States
    • Massachusetts Superior Court
    • July 13, 2000 on which Defendants rely is Town of Freetown v. New Bedford Wholesale Tire, Inc., 384 Mass. 60 (1981). The court does not read Freetown as broadly as Defendants.34 In Freetown, the plaintiff town alleged that the defendants negligently dumped 750,000 used tires on town land. A fire bro......
  • State v. Black Hills Power, Inc.
    • United States
    • Wyoming Supreme Court
    • August 3, 2015
    ...548, 479 N.Y.S.2d 163, 468 N.E.2d 1, 8 (1984) ; Dep't of Natural Res., 321 N.W.2d at 288 ; Town of Freetown v. New Bedford Wholesale Tire, Inc., 384 Mass. 60, 423 N.E.2d 997, 997–98 (1981) ; City of Bridgeton, 369 A.2d at 54 ; Allenton Volunteer Fire Dep't v. Soo Line R. Co., 372 F.Supp. 42......
  • Koch v. Consolidated Edison Co. of New York, Inc.
    • United States
    • New York Court of Appeals Court of Appeals
    • June 14, 1984
    ...Utilities Corp., 710 F.2d 117 City of Bridgeton v. B.P. Oil, 146 N.J.Super. 169, 178-179, 369 A.2d 49 Town of Freetown v. New Bedford Wholesale Tire, 384 Mass. 60, 423 N.E.2d 997 ). 8 The general rule is grounded in considerations of public policy, and we perceive nothing in the different a......
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