1993 Proceedings of the Midwest Oak Savanna Conferences
LEGAL LIABILITY EXPOSURES CREATED BY PRESCRIBED BURNING
Prescribed burning activities create a wide range of exposures to liability for the individuals, groups, or agencies involved. An examination of strict liability for ultra hazardous activities, negligence per se, and general theories of tort liability are a basis for discussion. Case studies of escape fires, smoke caused auto accidents, employee injuries and health concerns yield insights to problem areas.
DISCLAIMER: The information presented in this paper is a general review of tort liability law as it pertains to prescribed burning in Illinois. For specific questions you may wish to consult with legal counsel regarding your situation.
Any activity, even driving to a conference, exposes you to liability. Yet you can take reasonable precautions to avoid and mitigate your liability. In normal driving you make sure you meet regulatory requirements (you have a drivers license), are trained for the task (were a student driver at one time), use reasonable personal protective devices (you buckle your seat belt), and evaluate weather conditions (you do not drive on glare-ice covered streets). Normal driving requires one set of standards to be adhered to; driving in the Indianapolis 500 would necessitate others. Similarly, prescribed burning requires appropriate standards. Burning a pile of leaves in your backyard requires one type of precautions; igniting a multi-acre restoration management burn requires us to take different precautions.
In the event of an accident, a liability suit may result. Having a judgment entered against you or your agency is a major concern. To be successful, a plaintiff (the person suing you) must prove the following:
a) There were damages - monetary loss. These would include medical
bills, property loss, lost wages, etc.
In a liability suit, negligence will be alleged on one of two levels, ordinary or simple negligence which is
..carelessness, it is not undue disregard for the rights of others (van der Smissen no date), or willful and wanton negligence which ...is (1) a consciousness on the part of defendant that his conduct would naturally and probably result in injury, (2) any intentional disregard of a known duty, or (3) any absence of care for the life, person, or property of others such as exhibits a conscious indifference to consequences. (Hunter 1983).
The Illinois Tort Liability Reform Act (Illinois Revised Statutes, no date) protects governmental agencies and employees from claims of ordinary negligence in most activities. For private groups or individuals a finding of willful and wanton negligence opens you to judgments for punitive or exemplary damages in addition to actual damages suffered by the plaintiff. Liability law has other situations (strict or unlimited liability) where a defendant (you) will be held liable even with no finding of negligence on your part.
Ultra hazardous activities are defined as: Activities that are not so unreasonable to be prohibited altogether but are sufficiently dangerous or provide unusual risks that the law requires them to be conducted at the peril of the one sponsoring the activity. The defendant may be morally blameless and the act fully unintentional; but nevertheless the defendant will be legally at fault.
Generally these are activities such as the use of blasting agents, fireworks, and certain types of underground construction. In some cases strict liability has been applied to the intentional setting of fires (Vaughn no date). At this point we do not know how claims of strict liability will be handled under the tort reform act in Illinois (Mork no date).
Strict unlimited liability also applies in cases of negligence per se. An act that violates a statute with criminal penalties and the injured person is part of the class to be protected by the statute (Vaughn, no date).
This is held to be negligent per se (in and of itself).
An example would be blowing smoke across a road causing an auto accident. IEPA permit restrictions state: Open burning shall be conducted in such a manner as to not create a visibility hazard on roadways,...
There are criminal penalties for violations of IEPA permit restrictions (Illinois Revised Statutes, no date). If the visibility hazard was found to be the proximate cause of the accident, then no finding of negligence would be necessary for the plaintiff to collect for damages.
Another strict liability situation would be a violation of 5th amendment rights. Private property shall "... not be taken for public use without just compensation. Usually this is applied in cases of the flooding of land caused by water impoundment projects. Inadvertent burning of buildings or improvements would fall into the same category (Vaughn, no date).
Another topic of concern to burn managers is liability concerning volunteers. Case law has held that volunteers, if not compensated, are held to the same standard of care as compensated professionals (Hartigan, no date). The normal standard of care is to act as a reasonable and prudent professional in view of the probability of injury to others.
The standard of care would be measured by the moral qualities, judgment, knowledge, experience, perception of risk and skill that a person in the capacity of a professional would have. Not that of a person with the actual qualifications of the individual, but of a person competent for the position for which the individual holds oneself to be qualified. The "reasonable and prudent professional" must be able to foresee from the circumstances a danger...which presents an "unreasonable risk of harm"... (van der Smissen, no date)
In prescription fire the actual qualifications needed are still being determined. Several agencies including The Nature Conservancy, Peoria Park District, National Park Service, and the USDA Forest Service have determined their own standards. All have skill, physical ability, and experience levels necessary to participate in prescribed burning in common.
One who volunteers services without an agreement for or as an expectation of reward may be a servant of the one accepting such services. Respondent superior holds the employer responsible for acts of its servants. In determining whether or not the agency is responsible for the torts of an unpaid volunteer would be a question of fact determined at the trial. Factors such as contact before and after, specific action by the volunteer, and any hierarchical organization in place.
These persons must give the same standard of care an employee who is paid, and thus require the same type of credentials, orientation, and supervision as a paid employee.
In Wood V A bell , 268 Md. 214, 300 A. 2d 665 (1973) the court held that charitable immunity did not protect a negligent volunteer. (van der Smissen, no date)
Can I personally be sued? In general, no. You will be named in the suit but you do not have money to satisfy a judgment. The plaintiff will not collect unless they can prove one of the following:
a) ultra vires act - Your actions were outside the scope of
authority or responsibility,
In managing your actions you must be able to show you did meet the required standard of care. This will have two results. The precautions will reduce the number of accidents and resulting claims. The precautions will also provide a defense to claims of negligence.
EXAMPLES OF AREAS OF LIABILITY EXPOSURE
There are three main areas of liability exposure in prescribed burning. In each, we will look at examples. If you are sued you will have to answer questions posed by attorneys in either interrogatories (written questions), depositions (questions posed under oath prior to a trial) or on the witness stand in a civil trial. In each of these examples imagine you were the burn manager. How would you answer the questions posed?
ESCAPE FIRES - fires that burn off your property
May 5, 1980 at 1030 a prescribed fire was ignited in Jack Pine slash near Mio, Michigan. The purpose was to remove logging debris and create habitat for Kirkland's Warbler. At 1206 the fire spotted into standing jack pine timber. At 1215 the fire spotted over Michigan highway 33 and was declared a wildfire.
In the first 3 ½ hours the fire advanced 7 ½ miles. In the first 6 hours, the fire took one life, destroyed 44 homes and buildings, and burned 20,000 acres of forest.
The wildfire cost approximately $300,000 to suppress and almost 4 years and $ 2 ½ million dollars to settle 300 claims. Timber loss was estimated at $ 2 million. (Nilsen 1986)
While the Mack Lake fire is often cited as an extreme example; local northeastern Illinois examples abound. In analyzing six local escapes, several common contributing factors are evident. (Dates and locations of local examples are withheld at the request of the agencies providing information.)
Questions to Consider Are:
The costs of burning have been studied relating size of unit, slope, burn objective, experience of burn boss, and institutional constraints such as minimizing escapes. Results showed that size of unit, site characteristics and burn boss experience had a greater affect on costs than minimizing escapes. Also, that lowest experience (0-20 burns) burn bosses wrote the least expensive plans. Part of the conclusions were that these low experience burn bosses have not yet really learned about escapes (Gonzales-Caban 1989).
Bonifay FL - Three people were killed and seven injured in a multi-car chain reaction caused by obscured vision from a 100 acre prescribed fire. The burn was 3/4 mile from the interstate (Alexandria Daily Newspaper 1983).
This occurred after dark an inversion formed trapping smoke from smoldering stumps in a valley.
Land managers have been held liable and paid for damages caused by smoke from planned ignitions that impaired visibility causing traffic accidents, property damage and fatalities (National Wildlife Coordinating Group, 1985).
Q: What methods did you use to protect motorists driving on roads adjacent to your burn?
A: Visibility was monitored during all smoke production. At no time did visibility drop below standards developed by the California Highway Patrol for acceptable visibility. These standards are based on the design ( 1-2 way) and speed limit of the road. In addition large warning signs were placed out.
A smoky fire in some discarded trees forced the evacuation of about 50 elderly residents of a retirement home in Lemont... (Chicago Tribune 1988)
Q: My plaintiff resided in the Alvernia Manor Nursing home. While located 3 miles from your burn smoke caused her to begin coughing which aggravated her emphysema. This in part lead to her early demise.
A: Smoke emissions from the burn were modeled using state of the art plume emissions technology via the SASEM program. Commonly used screening techniques for critical smoke sensitive targets based on the size of the burn, fuel loading, duration of the burn, atmospheric stability, mixing height, winds aloft, and distance from the burn were utilized. Using the best available technology no violation of EPA or clean air act standards for criteria pollutants were predicted.
REMEMBER: IEPA Permit Restrictions
...persons affected by such open burning may file complaints with the Environmental Protection Agency if the burning is injurious to human, plant, or animal life, to health or to property, or unreasonably interferes with the enjoyment of life or property (Illinois Revised Statutes, no date).
Adjacent to your unit is a family who has an infant on a apnea monitor. Their next door neighbor has smoke sensitive asthma. On returning home they find the smoke so heavy they fear hospitalization. They seek reimbursement for overnight lodging costs.
OSHA requires employers take affirmative action to anticipate and protect employees from reasonably expected work place hazards. In the case of employee injuries strict unlimited employer liability applies.
1983 the USFWS was conducting a burn in the Ocefenokee Swamp. A torch operator strapped 2 milk jugs full of drip torch mix to his web gear. He tripped landing on and bursting one jug which ignited. He died of burns (Carter, no date).
Pocket Fire, Georgia, January 1979. A tractor plow operator was burned and later died after a major wind shift pushed fire back into areas incompletely burned previously. Escape fire area was only 125 acres (Pyne 1984).
Kane County - 1993 Robert Horlock, 54, died of a heart attack..while conducting a controlled burn in Campton Township. ...Horlock clutched at his chest and fell to the ground. (Coworkers).. ran to Garfield Farm about a quarter mile away. When he returned with help the fire from the controlled burn had reached Horlock. ...Horlock had first-, second-, and third degree burns on his face, but he had died immediately from the heart attack...(Kane County Chronicle 1993).
Consider the following typical prescribed fire work situation:
You are going to take a power tool full of gasoline capable of cutting your arm off in less than 2 seconds and use it adjacent to a burning dead tree where parts of it may fall on your head. This tool throws chips as a hazard to eyes. It also emits sounds in excess of 98 Db.
Smoke also presents liability concerns. The Illinois Employee Occupational
Disease Act makes an employer liable for:
Smoke contains the following:
a) polyaromatic hydrocarbons - Of these benzo (a) pyrene
and formaldehyde are known to be human carcinogens. They are present below
levels of easy detection.
To protect against these potential health hazards the only available method is the Self Contained Breathing Apparatus (SCBA). SCBA is not realistic in a prescribed fire situation because of its weight, bulk, and limited time of protection. Research is being done on appropriate respiratory protection for prescribed fire workers. (U.S.D.A. Forest Service 1991).
Liability is a concern for anyone involved with the use of fire as a management tool. Some states have recognized the need to address the liability exposures created by the use of fire (Brenner 1992). Training, physical ability, and safety equipment requirements for all involved, communications equipment, and strict written plan requirements can be important steps in allaying public fears, preventing legal restrictions, and reducing liability costs.
Alexandria Daily Newspaper. November 19, 1983.
Brenner, Jim and Dale Wade. 1992. Florida’s 1990 prescribed burning act. Journal of Forestry, Vol. 90, No. 5.
Carter, Allen. no date. Personal Communication.
Chicago Tribune. August 25, 1988.
Gonzales-Caban, A., and L.F. Bednar. 1989. Institutional constraints affect prescribed burning costs variability: preliminary findings. 10th Conference on Fire and Forest Meteorology, Ottawa, Canada.
Hartigan, Neil F. no date. You--the board member of an Illinois not-for-profit organization. Informational Pamphlet, Office of the Illinois Attorney General.
Hunter, Robert S. 1983. Trial handbook for Illinois lawyers. The Lawyers’ Cooperative Publishing, Rochester, New York, 77.10.
Illinois Environmental Protection Agency. no date. Standard conditions for open burning.
Illinois Revised Statutes, Chapter 48, Section 172.39.
Illinois Revised Statutes, Chapter 85, Section 2-102.
Illinois Revised Statutes. no date. Chapter 111, ½ Section 1042.
Illinois Revised Statutes. no date. Chapter 111, ½ Section 9(a) and all IEPA permits.
Kane County Chronicle. April 10, 1993.
Mork, Robert. no date. Legal counsel of the Forest Preserve District of DuPage County.
National Park Service. no date. RX-90 prescribed fire for burn bosses. Student text, chapter 7.
National Wildfire Coordinating Group. 1981. S-390 Intermediate fire behavior. Student Text, NFES.
National Wildfire Coordinating Group. 1985. Prescribed fire smoke management guide. NFES 1279.
Nilson, Jerry R. 1986. Huron-Manistee National Forest, training, teaching and public relations. Group Workshop at Prescribed Burning in the Midwest: State of the Art, Stevens Point, Wisconsin.
Pyne, Steven J. 1984. Introduction to wildland fire. Wiley-Interscience Publication, P. 429-430.
U.S.D.A. Forest Service. 1991. Health hazards of smoke. Missoula Technology and Development Center.
van der Smissen, Betty. no date. Legal liability and risk management for public and private entities. Anderson Publishing, 2.241.
Vaughn, Ronald B. and Philip N. Omi. no date. Legal liability in fire management, decisions and practices. Masters of Science Professional paper. Department of Forest and Wood Sciences, Colorado State University, Fort Collins, Colorado.