(By sрecial assignment pursuant to RSA 490:3.) This is an action to recover damages for real and personal property lost when the plaintiffs’ home was completely destroyed by fire. The plaintiffs claim that the defendant’s failure to provide sufficient water pressure to extinguish the fire resulted in the loss. The defendant moved to dismiss both the contract and negligence counts for failure to state a cause of action. Perkins, J. transferred the questions of law without ruling.
Plaintiffs’ claims in contract presеnt no difficult problem. Specifically the plaintiffs allege that they were parties to an agreement that required the defendant to furnish “a supply of water to be used for domestic purposes at the plaintiffs’ residence.” The plaintiffs do not allege that the agreement required the defendant to provide water in fire hydrants. In the application for service, a copy of which is included in the record, water for fire-fighting purposes is not mentioned. Thus plaintiffs’ claim states no cause of action in contract and should be dismissed.
The negligence count presents a more difficult question. This court has never considered whether the customer of a water compаny has an action in tort when the company’s failure to provide sufficient pressure for fire fighting contributes to a fire loss. This question, however, has been widely considered in other jurisdictions. In the leading case
H. R. Mock Co. v. Rensselaer Water Co.,
The debate over whether a water company will be liable for failing to provide adequate pressure to extinguish a fire revolves around the question of “duty.” Duty, however, is an exceedingly artificial concept. If a court wishes to impose liability, it can easily find the necessary “relationship” between the parties to create the “duty.” The question whether there is a “duty” merely begs the more fundamental quеstion “whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.” W. Prosser, supra § 53, at 325. The decision to impose liability reflects a judicial determination that “the social importance оf protecting the [plaintiff’s interest] outweighs the importance of immunizing the defendant from extended liability.” Note, The Child’s Right to Sue for Loss of a Parent’s Love, Care and Companionship Caused by Tortious Injury to the Parent, 56 B.U.L. Rev. 722, 740 (1976).
Thus rejecting the seduсtive call of “duty,” we consider whether the plaintiff has an interest here that should be protected. The plaintiff’s intеrest in his home and personal property is far more than de minimis. That homes will catch fire is foreseeable. Furthеr it is clearly foreseeable that when the defendant laid pipe for fire hydrants and provided water for the hydrants, a homeowner in an area with hydrants would rely on that water to extinguish a fire in his home. Prima facie, these considerations form an adequate basis for liability.
Before liability is imposed, however, we must take into consideration thе countervailing interests. To impose liability on a water company for its ordinary negligence in the instant situation would result in an indefinitely extended scope of liability on such utilities.
See Reimann v. Monmouth Consol. Water Co.,
There are other factors favoring a refusal to impose liability. The homeowner could not effectively provide an alternative system for extinguishing fires. Of course, this proposition cuts both ways. If there is nо alternative to relying on a public water supply, one could argue that imposing liability serves to guarantee that the company will be diligent in maintaining pressure. But liability cannot be imposed if there is no effective alternative. The company cannot be said to have dissuaded the homeowner from selecting another method оf protecting his home. Finally, fire insurance is readily available to homeowners. Thus a homeowner can prоtect his interest by procuring a policy without causing any disruption of an essential public service. Because the homeowner can protect his interests adequately and because a cheap, readily available supply of water is essential to a modern community, we decline to impose liability in tort for a water сompany’s ordinary negligence in allowing the pressure in hydrants to fall below a level sufficient to fight fires.
Thus the plaintiff’s сomplaint states no cause of action in either tort or contract and should be dismissed.
So ordered.