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California Supreme Court:
Employer Is Liable for Fire-Fighting Costs Resulting From Employee’s Negligence
Contrary Court of Appeal Opinion Is Repudiated
By a MetNews Staff Writer
The California Supreme Court yesterday affirmed a decision by the Court of Appeal for this district under which a nonprofit corporation could be held liable for the $12.2 million in costs incurred by the state in battling a wildfire caused by the negligence of the defendant’s employee.
Justice Joshua P. Groban wrote for a unanimous court in repudiating the Third District Court of Appeal’s Dec. 6, 2017 majority opinion by Justice M. Kathleen Butz in Department of Forestry & Fire Protection v. Howell. The majority held that Health & Safety Code §13009 and §13009.1, which impose liability for fire-fighting costs on “any person” causing the blaze, do not contemplate vicarious liability.
That opinion drew a dissent from Third District Justice Ronald B. Robie. Yesterday’s opinion affirms a Nov. 18, 2019 decision by Justice Martin J. Tangeman of this district’s Div. Six which says:
“We agree with Justice Ronald B. Robie.”
Cause of Fire
The defendant in the case before the Supreme Court is Presbyterian Camp and Conference Centers, Inc. Its employee caused the 2016 Sherpa Fire in Santa Barbara County, scorching nearly 7,500 acres, by unsafely setting down a smoldering log he removed from a cabin that had a defective fireplace.
Relying on Howell, Presbyterian demurred; Santa Barbara Superior Court Judge Thomas P. Anderle overruled the demurrer; Presbyterian sought a writ; Div. Six denied it; the high court affirmed.
The theory set forth by Butz, and advanced by Presbyterian, is that Health & Safety Code §13007 imposes liability on a person who “personally or through another” causes a fire; §13009, originally alluded to “[t]he expenses of fighting any fires mentioned in Sections 13007 and 13008”; in 1971, §13009 was reworded and reference to §13007 was removed.
Butz’s View
Seeking its costs in connection with the Sherpa Fire is the California Department of Forestry and Fire Protection (“CalFire”), which was also the plaintiff in the case that went to the Third District. Butz wrote:
“Cal Fire argues we should not construe the presence of the “personally or through another” language in section 13007 and its absence in sections 13009 and 13009.1 as indicative of any legislative intent to preclude application of vicarious liability concepts in the latter sections. We disagree. Cal Fire’s claim that the language is surplusage in section 13007 is unavailing.”
She went on to say:
“Therefore, based on the plain language of the statute, when read in the context of the statutory framework as a whole, we conclude the Legislature did not incorporate concepts of vicarious liability into section 13009 or 13009.1.”
Groban’s Opinion
Groban wrote:
“Respondeat superior has long been a bedrock doctrine of the common law….For nearly 150 years, the long-standing history of respondeat superior—a form of vicarious liability—has been reflected in both California statutory and common law, pursuant to which, by default, ‘an employer may be held vicariously liable for torts committed by an employee within the scope of employment.’…
“In light of the doctrine’s deep history—particularly in fire liability cases—we conclude that it would not be appropriate to read respondeat superior out of section 13009 unless the Legislature had expressed a clear intent to abrogate this common law doctrine.”
There has been no such expression, Groban said, ascribing no significance to the Legislature’s removal of reference in §13009 to §13007.
“Neither the plain language of the statute nor the legislative history supports Presbyterian’s position,” he said, declaring:
“[W]e are not persuaded that the phrase ‘through another’ was used by the Legislature to refer to respondeat superior in section 13007 or that omission of the phrase was intended to excise respondeat superior liability from section 13009 when it was amended in 1971, let alone that it did so with the scalpel-like precision that Presbyterian asserts.” Groban reasoned that the “mere deletion of a cross-reference to section 13007, which in turn contains the phrase ‘through another,’ does not in any way manifest” a clear and unequivocal “intent to abrogate more than a century of common law tort principles.”
He set forth:
“In light of the enduring importance of respondeat superior in our common law and the conciliatory approach courts take in construing statutory enactments against the backdrop of existing common law, we understand section 13009 as having incorporated the common law theory of respondeat superior.”
The case is Presbyterian Camp and Conference Centers, Inc. v. Superior Court, 2021 S.O.S. 6769.
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