Tuesday, November 19, 2019
By a MetNews Staff Writer
Div. Six of this district’s Court of Appeal, rejecting the reasoning of a majority opinion by the Third District, declared yesterday that a corporation can be held vicariously liable for the costs of extinguishing and investigating a fire—in this instance, costs amounting to more than $12 million—if it can be shown that its employee caused it through blameworthy conduct.
The Third District’s Dec. 6, 2017 opinion came in Department of Forestry & Fire Protection v. Howell, with Justice Kathleen Butz writing for the majority in saying that the Department of Forestry and Fire Protection (“Cal Fire”) cannot, under a theory of vicarious liability, collect damages from a corporation for its costs stemming from the massive 2007 Plumas County “Moonlight Fire.”
In yesterday’s opinion, agreement was expressed with Justice Ronald B. Robie’s dissent in that case. Div. Six denied a writ sought by defendant Presbyterian Camp and Conference Centers (“PCCC”) an employee of which is said to have caused the 2016 Sherpa Fire which burned nearly 7,500 acres in Santa Barbara County.
Writing for the panel, Justice Martin J. Tangeman pointed to Health & Safety Code §13009(a) which authorizes recovery by Cal Fire of its costs from “[a[ny person (1) who negligently, or in violation of the law, sets a fire, allows a fire to be set, or allows a fire kindled or attended by him or her to escape onto any public or private property….”
Sec. 19 of that code, the jurist noted, defines “person” as including “corporation.”
“Thus, under the plain language of these statutes, CalFire can recover fire suppression and investigation costs from a corporation, like PCCC, that negligently or illegally sets a fire, allows a fire to be set, or allows a fire it kindled or attended to escape.”
Tangeman cited the 1986 California Supreme Court case of Perez v. Van Groningen & Sons, Inc. as support for the proposition that a corporation “is vicariously liable if one of its agents sets a fire in the scope of their [sic] employment.”
There, the court said, in a case arising from a personal injury sustained by an unauthorized rider on a corporation’s tractor who sued the corporation:
“Under the doctrine of respondeat superior, an employer is vicariously liable for his employee’s torts committed within the scope of the employment.”
Scope of Employment
“Here, it is undisputed that Cook started the Sherpa Fire. And it is undisputed that PCCC was his employer at that time. Therefore, if CalFire can prove that Cook started the fire negligently or in violation of law, and did so in the scope of his employment, PCCC can, pursuant to sections 13009 and 13009.1, be held vicariously liable for CalFire’s fire suppression and investigation costs.”
Butz had expressed this view:
“[W]e conclude neither that inclusion of the term ‘negligently’ in sections 13009 and 13009.1 nor that the statutory definition of ‘person’ to include a corporation, incorporates common law theories of negligence into the statutes. And further that sections 13009 or 13009.1 do not provide for vicarious liability.”
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