I live in a small town in a remote part of northern California that always holds a Fourth of July parade. This year, the mayor announced that the celebration would include a picnic and fireworks show at the downtown park. I'm a volunteer fire fighter for the town and I'm a little worried about the danger. The park is really small and, to be honest, I've had reason to question our mayor's judgment. Is the city liable if someone gets hurt?
It might be. Much depends on whether the fireworks used are legal and permitted under state law.
This article discusses municipal liability for fireworks-related injuries in general. For information about private host liability for fireworks-related injuries, see Can a host of a backyard fireworks be held liable for injuries to guests?
California, like most states, has enacted statutes that regulate the sale, possession, and discharge of fireworks anywhere in the state. In California, the state law applies to cities just as it does to private citizens. In other states, the applicability of the state law to cities and counties depends on whether the state law preempts city and county ordinances regulating fireworks. For more information about county fireworks ordinances, see Can fireworks that were legally purchased in one county be used in another county where they can't be bought?
It is illegal for any person or entity, including a city, to discharge "dangerous" fireworks at any time unless it has a permit issued by the State Fire Marshal. (Cal. Gov't. C. § 12677.) And, it is illegal for any person or entity to discharge even "safe and sane" fireworks where there is a likelihood of injury to anyone. (Cal. Gov't. C. § 12680.)
The State Fireworks Law defines "dangerous fireworks" (basically anything fun) as well as "safe and sane" fireworks. (Cal. Gov't. C. § § 12505, 12529.) If your town is planning a fireworks show, it is a safe bet the show includes dangerous fireworks requiring a permit. The California State Fireworks Law applies to cities. (Cal. Gov't. C. § 12523.)
The question of whether a city is liable for injuries resulting from actions taken by city officials is a complex one. It involves several arcane areas of law, including governmental immunity, liability for the acts of an agent, and others. California, for example, has a strictly enforced tort claims act (the law that governs lawsuits against the government), which requires people who are injured to submit their claims to the governmental entity prior to filing a lawsuit. They must also do so very shortly after the injury occurs. Other, though not all, states have similar tort claim statutes.
In California, a person injured during a city's illegal fireworks display may sue the city for damages (assuming the person has first submitted the required tort claim). And if the fireworks display was legal under state law, the injured person may still sue the city but would have to prove that the city had discharged the fireworks in a negligent fashion.
California's tort claims act imposes liability upon a city for injuries caused by its failure to act carefully, as expressed by a state law designed to protect against the risk of that particular kind of injury. (Cal. Gov't. C. § 815.6.) The permit requirement and other restrictions imposed by the State Fireworks Law were clearly designed to protect against injury to bystanders caused by the discharge of fireworks in violation of the law. As a result, a person injured at your town's fireworks display could win a personal injury lawsuit against the town if the town did not fulfill the duty imposed by state law.
Punitive damages are money the defendant has to pay as a punishment for the defendant's actions -- they are in addition to direct damage awards, which cover the cost of medical care, lost wages, and so on. Although a city may be liable for direct damages to a person injured when it set off fireworks in a manner that breached its duty or violated state law, a city is not liable for punitive damages under California law. (Cal. Gov't. C. § 818.) Some, though not all, states have similar punitive damages exceptions for governmental entity defendants.
Some states impose greater exposure for liability on cities than California, while others impose less.
Iowa Supreme Court Held City To Highest Degree Of Care In Fireworks Handling
A 14-year-old boy suffered a serious injury from fireworks he found in a city ballpark after the July Fourth celebration. Ruling in favor of the injured boy's family, the Iowa Supreme Court held cities in that state to the "highest degree of care" in discharging fireworks. The court noted that Iowa's fireworks legislation was intended to protect minors from injuries by limiting their access to explosives. And, the court held, it did not matter whether the boy was trespassing or allowed to be in the ballpark at the time of the injury.
(Rosenau v. Estherville,199 N.W.2d 125 (1972).)
Courts in other states, including Texas, have likewise held cities to a higher degree of care when they discharge fireworks.
Your town may face liability if it has not scrupulously complied with state law in setting off fireworks and a bystander is injured. City liability in other states depends on the laws of those states. Check with a lawyer in your area who has experience in municipal liability and personal injury law for more information.