We previously wrote about a split in authority over vicarious liablity for fire suppression costs incurred by CalFire.  We write today to clarify the prior article and that the California Supreme Court ruled in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493 that respondeat superior liability applies for fire suppression and investigative costs by CalFire from a corporation after its agent negligently started a fire.  Id.  The decision broke the prior split in authority by disapproving Department of Forestry & Fire Protection v Howell (2017) 18 Cal.App.5th 154, 176.

Fire suppression costs are extraordinarily high.  In Presbyterian Camp & Conference Centers, Inc. v. Superior Court, for instance, the reimbursement claims totaled $12.2 million.  The employee caused the fire when he removed a smoldering log from an indoor cabin fireplace whose chimney was malfunctioning and to an outdoor fireplace where embers fell onto nearby vegetation.  That simple negligent act resulted in a 7,474-acre fire.

On a related issue, also within the past year the 9^th Circuit ruled that federal claims based on government’s discretionary fire suppression operations are generally barred by the Federal Tort Claim Act’s discretionary function exception.  28 U.S.C.A. § 2680(a).  Esquivel v. United States (9^th Cir. 2021) 21 F.4th 565.  Given the vast public lands managed by the U.S. Forest Service and the increase in fires, any potentially viable future claims should center on attacking or challenging the policies in place by the U.S. Forest Service managing the approximately 193 million acres of land.