Recent investigations have conclusively suggested that PG&E is directly responsible for at least one of the deadly Wine Country and North Coast fires that ravaged northern California in 2017. On October 8, two small fires in Santa Rosa ignited close to, but separate from, the more well-known Wine Country fires that destroyed over 6,000 homes and killed 40 people. These fires destroyed at least two homes near Howarth Park, part of a Montessori school, and displaced hundreds of others. As of early February, 2018, the fires were determined to have been caused by PG&E power lines coming into contact with nearby dry vegetation. Strong winds caused these power lines to arc, and the dry vegetation acted as a ready kindling source to fan the fire. One day later, on October 9, nearby fires would grow out of control and combine to result in one of the most devastating natural disasters in California history, the cleanup for which is still ongoing.
What Does This Mean To Victims of the 2017 Wine Country Fires?
The conclusion of Santa Rosa city investigators dovetails with an announcement that Sonoma County plans to sue PG&E for tens of millions of dollars to compensate the county for costs incurred in removing debris and other damaged infrastructure. It is widely expected that Napa, Solano, Yuba, Lake, and Mendocino counties will join in the action against PG&E. Of all counties, Sonoma County was the hardest hit, where over 5,000 homes were destroyed, and 24 people were killed, although all counties expended, individually, millions of dollars in rescue, cleanup, and rebuilding operations directly flowing from the wildfires. Moreover, Cal Fire, a California agency tasked with combating fires and investigating their causes, has recently, as of late January, 2018, made preliminary findings public which specify the exact locations of PG&E related power incidents relative to the fires that broke out in early October. The findings show that PG&E equipment failures occurred at nearly the same locations, or within extremely close proximity, to the suspected starting sports of many of the North Coast fires.
The findings of Cal Fire correspond with anecdotal evidence throughout northern California in which numerous residents reported downed power lines, arching, or power lines touching vegetation or fallen tree trunks. In media reports throughout California, PG&E has continually denied responsibility for these fires, claiming variously that the investigation into these fires is still ongoing, or that, even when it has become apparent that PG&E’s equipment is involved, the fires were actually “caused” by high winds (in some media reports, PG&E officials have cited “hurricane force” winds of over 75 mph), dry vegetation (in other reports, PG&E suggest that the vegetation was “historically dry,” or was historically overgrown due to drought followed by heavy rains followed by drought), or other, similar factors.
PG&E Negligence to California and its Customers
It’s important to realize that, even if high winds and dry vegetation are found to be (or actually were) contributing factors in the blaze, their mere presence does not absolve PG&E from liability for the blazes. The core argument being put forward by cities, counties, and injured victims of the fires lies in the fact that PG&E was inadequately prepared for the winds and dry vegetation, and therefore that it did not act reasonably in failing to protect against this eventuality.
What “inadequately prepared” means in this context is that PG&E either did know, or, if it did not know, should have known that weather and other conditions were such that any small spark or defect in its equipment could start a fire (or multiple fires) that would be difficult—or, in the case of the actual Wine Country fires, nearly impossible—to stop. The standard imposed by courts is what is “reasonable” given the circumstances, meaning that courts will consider the context of the company given the circumstances presented to it. This is a fact-heavy inquiry focusing not only on what PG&E actually did or actually knew, but also what any reasonable company in PG&E’s position and with PG&E’s resources might have done or should have known given all of the facts involved.
For example, it is probably unreasonable to expect that PG&E’s equipment should withstand the forces of a once-in-a-thousand-year floor. Although it is conceivable that such a flood might occur, the cost of ensuring that PG&E’s system is robust enough to withstand such an event would be so massive that a court would almost certainly find that PG&E, or a utility company like it, acted “reasonably” when it chose to not ensure that its equipment could withstand such an event. Although a judgment call, a court would rationalize that it is simply unreasonable to apportion fault in such circumstances, and the risk of loss for such an event should be spread more evenly than solely on the shoulders of one company. On the contrary, it is probably more than reasonable to expect that PG&E’s equipment should withstand the effects of a common rainstorm. Such storms are frequent throughout California, and, were PG&E’s equipment to fail when exposed to water, for example, a court would easily find that PG&E acted “unreasonably” by failing to account for such an extremely common event. Again, a court would rationalize that, because rain is so exceedingly common, PG&E could have easily foreseen or actually known that failing to ensure its equipment was robust enough to withstand such an event was not reasonable.
PG&E’s Flimsy Defense
PG&E’s primary argument is therefore that, because the winds and dry vegetation of late 2017 were so exceedingly uncommon and unpredictable—like a thousand-year flood—it would be unreasonable for PG&E to build its equipment to withstand such an event. Because of this, PG&E could not possibly be at “fault” for failing to do something that they were not required to do. On the spectrum of events, PG&E is attempting to argue that the 2017 windstorm was so uncommon and unpredictable that it would be unreasonable to impose on PG&E the obligation to prevent against it.
Unfortunately, PG&E’s argument is likely on hollow ground. For decades, PG&E’s equipment and behaviors have been found to be at fault, or strongly suspected of being at fault, in numerous fires throughout California: these include the Butte Fire of 2015 in Amador and Calaveras counties, the Sierra Blaze of 1997 (via which PG&E was charged with 739 counts of criminal negligence), the 2009 San Francisco fire, and many, many more. Nearly all of these fires were caused by PG&E equipment being blown down during a wind event or storm, or because equipment was struck by a falling tree or other vegetation. In nearly all of these occasions, the downed power equipment came into contact with dry grass or other vegetation which quickly caused a fire that soon spread out of control. In many of these scenarios, state and local investigators later discovered that PG&E had cut corners to save costs at the expense of safety. For example, in the 2015 Butte Fire, state investigators found that PG&E did not maintain the minimum required clearance around its equipment, and failed to maintain overhead conducts in a safe and proper manner. Because of this, investigators found, a dead pine tree fell, collided into PG&E overhead conducts, and ignited a spark that led to massive devastation. All of this is to say that PG&E is no stranger to the terrible consequences that might flow from its power equipment being exposed to strong winds in the context of dry vegetation, and has been found, on numerous occasions, to have skirted not only safe business practices, but California laws, rules, and regulations governing how it should operate its equipment.
PG&E on the Verge of Criminal Neglect
California law takes this concept one step further. In California, “inverse condemnation” is a powerful tool for victims which permits recovery from companies like PG&E without a showing of fault. That means that, even if a court were to determine that PG&E’s actions were not “negligent”—that is, that it didn’t have a duty to protect against historic winds, or historically powerful winds combined with a rare drought—PG&E could still be found liable to homeowners and businesses damaged or displaced due to the fact that its power equipment led to the fires or at least indirectly caused the fires.
This concept is rooted in PG&E’s role as a quasi-public entity. Under the theory of “condemnation,” governmental or quasi-governmental agencies can “take” (or condemn) property for public uses via tools like eminent domain. Condemnation generally requires that those whose property is condemned be compensated for such actions. Because PG&E has the power to condemn via eminent domain via statute (which means that PG&E can take property, under certain circumstances for the purposes of providing utility services, provided it pays for this property), it can also be held liable when the “inverse” talking occurs: that is, when it takes or damages private property when it acts by performing its regulated duties, the home or business owner must be contemplated. In essence, California law states that PG&E cannot have it “both ways”: it cannot enjoy the power to take private property to provide power and other utility services, while not also suffering the downside that, if, in the provision of these services, its actions damage property.
As noted, this means that injured parties need only to show that PG&E was somehow involved in the fires to obtain relief. For example, if evidence suggests that a downed power line led to a fire, an injured homeowner’s investigation, for the purposes of California law and an attempt to obtain compensation, is likely at an end. Although a finding that PG&E was actually negligent (for example, the downed power line was not deactivated immediately upon coming into contact with the ground, or PG&E failed to monitor their equipment sufficiently, or the entire power system was not adequately robust to handle the storm encountered) might help in further proving an injured homeowner’s claim, this is not necessary to achieving full compensation for the damages in California.
As a result (and despite PG&E and other, similar quasi-state utility company’s efforts to repeal California’s inverse condemnation law, or otherwise pass this cost onto consumers), PG&E may be on the hook for absolutely massive claims, both in their sheer volume, and in the magnitude of each claim. Estimates range into the billions of dollars for which PG&E may be required to compensate victims, with PG&E’s own insurance likely only accounting for a small fraction of these claims. Added onto this are the costs that PG&E will likely need to pay to cities, counties, and the state for cleanup and rescue operations caused by its activities, and possible fines and even criminal penalties if PG&E is found to be negligent or if it or its employees are found to be criminally at fault. These costs will more than likely result in lower PG&E shareholder prices and dividends may be reduced or even eliminated in the near future.
Legal Recourse for Victims
PG&E’s behavior here, whether found to be criminally negligent, reckless, civilly negligent, or, even, entirely permissible, will almost certainly lead to recoveries for its victims. As with the 2015 Butte fires, it seems almost axiomatic to state that investigators will find that PG&E skirted its duties in northern California in connection with these fires: for example, by failing to trim dead vegetation, violating clearance laws with regards to trees and its power equipment, or failing to install industry-standard safety protocols simply because PG&E determined they were too expensive. Although investigators have not come to their final conclusions, initial conclusions from isolated fires stemming around the same time as the October 9 blazes, combined with ample anecdotal evidence, strongly suggests PG&E’s role—whether direct or indirect—in the fires.
However, tragically, it seems that not even billions of dollars in forced compensation, fines, fees, and other penalties are capable of changing PG&E’s behavior. While money can help to rebuild the lives of businesses and families who have been shattered by PG&E’s actions and inactions, the inability of California lawmakers to impose meaningful penalties and actionable laws against PG&E underscores the continuing and, unfortunately, likely soon-to-be-repeated problems of PG&E and the utility system in California in general. While attorneys—particularly attorneys skilled and specialized in going after multi-billion dollars corporations—are fantastic at achieving after-the-fact compensation for victims, attorneys are, by definition, reactive: they are generally only capable of responding to issues after they have already occurred. It is up to state and local lawmakers to make proactive changes that can prevent these tragedies from occurring in the first place, and, if recent history is a measure, no true, actionable changes have occurred in California on this front for many decades.
Until actionable changes are made, cities, counties, and injured victims must look to attorneys to zealously advocate for their rights, and achieve at least some modicum of compensation after disasters have already unfolded.
Victims of the 2017 California Wildfires are urged to contact Thompson Law Office to discuss their rights and to learn more about their legal options. We offer free consultations with our team of qualified and experienced wildfire attorneys.