Opinion
Dated: August 2, 1978
GENERAL MUNICIPAL LAW, §§ 50-c, 205-b
A village is liable for the negligent acts of a volunteer fireman in the discharge of his firemanic duties.
Gerald N. Jacobowitz, Esq. Walden, N Y
This is in response to your letter wherein you state that a claim is being made against the Village of Montgomery based upon property damage caused in the Village by a private vehicle owned and operated by a volunteer fireman while en route to the scene of a fire. You question the liability of the Village in light of what you consider conflicting case law.
It is our opinion that Cox v Village of Greenwich, 33 A.D.2d 264 (3d Dept, 1970), clearly establishes municipal liability for the negligent acts of a volunteer fireman in the discharge of his firemanic duties. The main issue in Cox, supra, involved the "liability of a village arising out of the negligent operation by a volunteer fireman of his personal automobile while engaged in firemanic duties" (p 265). In the Cox case, as it appears in your situation, the volunteer fireman was involved in an accident while responding to a fire alarm. The Third Department held that the broad liability of municipalities for the negligence of their employees should be applied.
The case you cited as being contrary to the Cox case, Thomas v Consolidated Fire Dist. No. 1, 91 Misc.2d 651 (Spec Term, Schenectady Co, 1977), specifically distinguished the Cox case and limited itself to the liability of a fire district as opposed to a village. Notwithstanding the inapplicability of the Thomas case to your situation, it should be noted that Thomas is being appealed and the Third Department will have an opportunity to clarify any inconsistencies which you feel may now exist.