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AGO 1952 No. 349 - July 09, 1952
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Smith Troy | 1941-1952 | Attorney General of Washington

REDUCTION OF FIRE FIGHTING CREWS

A logging operator incurs no civil liability by reducing the fire fighting crew upon verbal directions of the supervisor of forestry, but he would incur a civil liability for totally withdrawing his crew from a fire unless authorized to do so in writing.  There is no liability upon the part of the Division of Forestry for the escape of fire after an operator has been authorized to reduce or withdraw his crew.

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                                                                     July 9, 1952

Mr. B. L. Orell
Supervisor of Forestry
Department of Conservation & Development
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 349

Dear Sir:

            Receipt is acknowledged of your letter of June 17, 1952, in which you ask two questions.  First, in case of a forest fire in logging operation, if the logging operator reduces the size of his crew by oral agreement with the local representative of the Division of Forestry and the fire consequently escapes, would he be liable for a charge of negligence in the event of a civil suit for damages?  Second, would there be any legal liability upon the part of the Division of Forestry if permission to reduce forces were granted and the fire later escaped due to adverse weather conditions?

            It is our conclusion that a logging operator would not be liable for a reduction of crew under verbal permission of the local representative of the Division of Forestry, but might be liable for leaving the fire without any fire fighting crew or fire patrol until authorized to do so in writing by the supervisor or his authorized deputies.  The Division of Forestry would not have any legal liability for a fire which escaped due to adverse weather conditions after authority was granted to reduce the fire fighting crew, although such authority might relieve an owner or operator of liability upon the ground that he had made every reasonable effort to control and extinguish the fire.

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]

            The liability of a logging operator to fight a fire occurring in a logging operation with his full crew comes from the last paragraph of RCW 76.04.380 (Section 3, chapter 105, Laws of 1917 as last amended by § 9, chapter 58, Laws of 1951; RRS § 5806).  That paragraph reads:

            "When a fire occurs in a logging operation it shall be fought to the full limit of available employees, and such fire fighting shall be continued with the necessary crews in such numbers as are, in the opinion of the supervisor or his authorized deputies, sufficient to bring the fire to a patrol basis, and the fire shall not be left without a fire fighting crew or fire patrol until authority so to do has been granted in writing by the supervisor, or his authorized deputies."

            It will be noted that the operator is required to fight the fire to the full limit of available employees and to continue the fire fighting with the necessary crews in such numbers as, in the opinion of the supervisor, or his authorized deputy, are sufficient to bring the fire to a patrol basis.  By this language the legislature has authorized the supervisor to determine the size of the crews which an operator must keep on a fire.  There is nothing in this portion of the statute which requires the supervisor to communicate his judgment in writing, and we believe that a logging operator would be protected from civil liability if he acted upon the definite advice of the supervisor, or his authorized deputy, in determining the size of the crew to be continued on a fire notwithstanding the advice was not received in writing.  The paragraph of the statute goes on to provide that the fire shall not be left without a fire fighting crew or until authority to do so has been granted in writing by the supervisor, or his authorized deputies.  This relates to the total withdrawal of a fire fighting crew or fire patrol.  Since the statute expressly requires that permission be granted in writing, it is our opinion that if a logging operator should withdraw his crews entirely simply upon the verbal advice of the supervisor or his authorized deputy, he might be held civilly liable for any loss that might occur as a result.  A total withdrawal of the fire fighting crew without such written authority, we believe, could constitute an additional basis of liability upon his part over and above any other basis of liability provided for by statute.

            The statute has conferred upon the supervisor the duty of exercising his best judgment as to the size of the crew to be left on a fire and as to the time when a crew can be withdrawn entirely.  If he uses his best judgment there can be no  [[Orig. Op. Page 3]] civil liability as to either the forester or his authorized deputies.  Our supreme court in the case of Tacoma v. Peterson, 165 Wash. 461, 5 P. (2d) 122, approved the doctrine that is generally followed by courts that a public officer entrusted with discretion cannot be held civilly liable for errors or mistakes in judgment.  The court there said:

            "* * * that such officers are not liable for error or mistake of judgment in the exercise thereof in the absence of corrupt or malicious motives.  * * *"

            It is possible that the department might incur fire fighting costs which it could not recover from the operator if permission to withdraw the crew were given and the fire thereafter escaped since an operator would be justified in relying upon the authority given by the department, and if he acted in accordance with such instructions he could claim to have made every reasonable effort to control and extinguish the fire.  The basis for liability of an operator under the first paragraph of RCW 76.04.380 is his failure to make every reasonable effort to control and extinguish the fire and if he has met this test and has not reduced his crew nor withdrawn it from the fire except upon proper instructions from the Division of Forestry, it is doubtful if he can be held liable under the first paragraph of that section.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General

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