Liability of Utilities for Forest Fires
Recent events throughout the country have raised the question of whether and to what extent utility companies may be liable for fires or other natural disasters that result from a utility company’s actions or inactions. Damages ranging from such fires can be astronomical, and can include the destruction of hundreds of thousands of acres of land, the scorching of homes and private property, injuries and even death. Whether utility companies may be liable for disasters such as forest fires arising in California and under California law requires both an investigation of the facts surrounding the fire, and the law or laws that may impose liability on these companies.
Due to the nature, complexity, and uncertainties involved in these natural disasters, only attorneys with a track record of litigating complex, multi-party litigation matters can fully answer such questions, and bring justice to companies that may be at fault.
Who’s to blame?
Although not all forest fires are caused by utility companies, research compiled by the Federal Energy Regulatory Commission suggests that a non-trivial amount of forest fires are caused every year by power lines owned and operated by utility companies. Utility companies tasked to provide electricity to remote locations, or that choose to connect two locations via a forest, are particularly at risk because their power lines and other equipment may come directly into contact with vegetation, or new vegetation may subsequently grow to touch a previously safe power line.
A threshold question prior to any lawsuit stemming from a forest fire is who may be entitled to bring suit. For example, if a fire destroys land in a public forest, a national park, a local park, or a private residence or piece of land, there may potentially be many different litigants that are able to bring suit against the alleged perpetrator of the fire. In the example posed, potential litigants might include the United States, the State of California, one or more counties, multiple municipalities, and a myriad of private individuals. Moreover, even if these entities are able to sue for damages, the scope of these damages is unclear.
While a homeowner who is injured in a fire can doubtlessly sue for his or her injuries, or for the cost of repairing a home or any other possessions damaged or destroyed in the fire, the damages to the land itself (for example, burned or destroyed trees, farms, fields, and so on) can be more difficult to evaluate and quantify. Additionally, there may be substantial costs involved and incurred in the suppression of the fire, and the rescue of people or livestock caught in the fire. These costs might be shared by numerous different agencies and governments depending on the location and spread of the fire, further complicating efforts to obtain recovery.
What the California law said?
Fortunately and unlike in many other states, California law specifically speaks directly to the liability that offending individuals or companies have with regards to forest fires. In California Health and Safety Code §13009, for example, anyone who “negligently or in violation of the law” causes a fire resulting in damage is liable for “suppression costs… and for the cost of providing emergency or rescue services.” Importantly, this code provision can be enforced by the United States, the State of California, counties, municipalities, or any private individual who may have been impacted by the fire.
This means that any entity that has been harmed by a fire can sue and attempt to recover for the often-substantial costs incurred in suppressing the fire, and in providing emergency services that may result from the fire. Similarly, California Health and Safety Code §13007 imposes similar liability as §13009, but permits recovery for damages to property caused by such a fire, and also permits any entity, including public entities to bring suit. These statutes together create a powerful tool for entities ranging from the United States government to private individuals to bring suit against companies whose actions or inactions resulted in forest fires.
However the simple existence of these statutes does not end the inquiry into whether a utility company may be liable for damages resulting from a fire. As a threshold question, whether a utility company has been “negligent” or “violat[ed]… the law” as stated in the statutory language is a complex legal inquiry. For a utility company to be negligent, it must be shown that the utility company had a legal duty, that the utility company breached this duty, that there existed sufficient causation between the breach and the damages, and that actual damages occurred.
In the case of a utility company, a utility company owes a duty to the general public to ensure that it operates its products and services in a safe and reasonable manner. This duty is similar to any duty that any company may have to protect the general public against unreasonable and foreseeable harm. For example, a utility company likely has a duty to ensure that its power cables do not come into contact with vegetation that might result in a fire.
When the existence or breach of a duty is unclear, a company’s actions are oftentimes judged by a standard of reasonableness: that is, whether the company’s actions or inactions were reasonable, given the contexts and circumstances presented. For example, if a reasonable utility company in the same circumstances would have ensured that its power lines did not come into contact vegetation, and the utility company in question had its power lines touch vegetation, the company would have breached its duty, regardless of whether the utility company was following its protocols, the law, or believed it was acting reasonably or safely.
The existence of such a duty, and whether a utility company violated a duty, is therefore a complex legal inquiry taking into account both the state of the law and the particular facts of what occurred. However, California courts have not been shy in finding the existence of such a duty in a multitude circumstances.
For example, in 2008, in United States v. Union Pacific Railroad, a California court found that the Union Pacific Railroad was negligent and therefore in violation of the statutes suggested previously, when workers for the Union Pacific Railroad ignited a fire while making repairs. The fire led to the so-called Storrie Fire, which resulted in over 51,000 acres of public land being destroyed.
Not only did the court in Union Pacific Railroad find the Union Pacific Railroad negligent in its actions, the court also found sufficient causation between the negligence of Union Pacific and the damages caused, and found substantial actual damages. In fact, the court, in interpreting the California statutes quoted above, found that essentially any damages alleged could potentially be recovered. As a result, the United States was successfully able to sue for the full market value of burned timber on the land, which was assessed at over $120 million dollars, even though such timber might not have been legally permissible to be sold (much of it existed on protected lands which prohibited logging).
In addition, the United States was also able to seek to recover the costs of restoration of the forest (that is, the planting of seedlings required to re-forest areas that had been destroyed), and the diminution in services provided via the forest, such as scenic use, recreational use, and wildlife habitat.
What does this mean?
The upshot of both California law and prior California cases suggests that a utility company may indeed be liable not only for the costs of suppression and emergency services resulting from their negligence, but also for the expansive cost of damages incurred in the destruction of property, land, and forests. California courts have imposed substantial liability on at-fault companies, which could result in hundreds of millions of dollars of potential liability owed to a myriad of entities, and private individuals. For example, if the Union Pacific Railroad case is dispositive, a private landowner may be able to sue not only for his or her physical injuries and actual damages to a house or personal property, but also for damages to fields, trees, and other aspects of their property, even if this property is not currently being used for productive purposes such as logging or farming.
However, because many utility companies carry insurance designed to protect against fires specifically—and therefore tend to settle these claims quietly out of court—it is unknown the exact contours and details of many prior claims, and challenging to make predictions on how courts and utility companies at fault may act in future circumstances. Moreover, the details of a how a given forest fire began may take months or years to conclusively prove, delaying litigation. Utility companies, as suggested, might argue that they, in fact, were under no such duty to protect against the fire that resulted from their actions or inactions. The complexity of facts, legal issues, number of parties potentially involved, scope of damages resulting from these devastating events, and uncertainty regarding the results of litigation, demand the skills and expertise of attorneys knowledgeable in this area of law.
How can Thompson Law Offices help?
At the Thompson Law Offices, we have the knowledge and experience to assess your case, identify possible responsible parties and retain the experts necessary to establish your claim. Our goal is always to obtain full compensation for you, so you can set aside financial worries and focus on caring for your family.
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January 14, 2018 UPDATE: Our analysis of the 2017 California Wildfires “A Perfect Firestorm – PG&E’s Saga of Negligence and the 2017 California Wildfires” provides more information on PG&E’s failures to protect their customers as required by law.