Friday, October 26, 2007

Arson, Negligence, and the California Wildfire Mass Tort

We don't often think of arson as a mass tort.  But for those of us in Southern California, it's easy to see why it qualifies.  This last week has been a harrowing time -- according to the L.A. Times: 488,099 acres have burned, 1,775 homes and 2,103 structures total have been destroyed, 79 people have been injured, and 7 people have died.  That some of these fires have been started by the intentional acts of arsonists is maddening.  Recently, for example, the authorities have raised the award to $250,000 for information on the arsonist who started the Santiago fire that has destroyed at least 14 homes and burned 25,000 acres.  These are trespass-based mass torts, like the claims that would have been brought against the 9/11 hijackers and Al Qaeda if they were available for suit.

Similarly, other fires may have been caused by negligence.  The Magic Fire, for example, was reportedly started by sparks from welders in a construction site close to the Magic Mountain Amusement Park.  The Magic Fire went on to burn 2,824 acres, but luckily was fought back from the backyards of houses -- no structures were lost.

Should claims be brought, plaintiffs might face arguments about proximate causation.  As a matter of policy, is it proper to trace causation back to the person who started a fire, when it spreads for thousands of acres, and is subject to the vagaries of winds, temperature, and humidity?  The law has certainly struggled with these issues in the past when it comes to fires.  But intentional tortfeasors don't get breaks when it comes to proximate cause -- sound policy puts a broad swath of subsequent bad results on the shoulders of the intentional tortfeasors.  So I would argue any arsonist should be subject to lawsuit by all those whose homes were destroyed.  And even with regard to the negligently created fire -- can the welder adjacent to wildland for example argue that he didn't foresee that sparks might set ablaze the dry fire-prone chaparral vegetation that was already burning all over California? 

To be honest, civil litigation and resulting personal bankruptcy is the least of the concerns for the arsonist.  There are of course criminal charges.  And maybe that's not even the worst, as the L.A. Times reports:

The arsonist is lucky he wasn't caught in the act, some residents added.

"Around here if they caught a guy doing that, they'd shoot him right on sight," said Leonard Schwendeman, 89.

Boeck added, "If they ever catch this guy, they better hope that it's the sheriff or the FBI that catch 'em, because if canyon residents catch 'em first, there won't be a piece of them big enough for a dog to bite."

BGS

http://lawprofessors.typepad.com/mass_tort_litigation/2007/10/arson-negligenc.html

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