BILL NUMBER: AB 992 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 12, 2011
AMENDED IN ASSEMBLY MARCH 31, 2011
INTRODUCED BY Assembly Member Nielsen
FEBRUARY 18, 2011
An act to amend Section 4515 of the Public Resources
Code, relating to forestry. An act to amend Section
3346 of the Civil Code, to amend Section 733 of the Code of Civil
Procedure, to amend Section 13007 of the Health and Safety Code, and
to amend Section 4435 of the Public Resources Code, relating to civil
liability.
LEGISLATIVE COUNSEL'S DIGEST
AB 992, as amended, Nielsen. Forestry: timber harvesting
plan. Civil liability: wildfires.
Existing law specifies the measure of damages available for
wrongful injuries to timber, trees, or underwood upon the land of
another person, or removal of that wood, and for any trespass
committed while acting in reliance upon a survey that improperly
fixes the location of a boundary line.
This bill would provide that damage caused by an escaping fire,
other than an arson fire, shall not be deemed a trespass for purposes
of these provisions. The bill would provide that the amount of
monetary damages recoverable by any person, including a governmental
entity, for fire escaping to the land of another, other than arson,
shall be limited to the fair market value of the land and timber
affected by the fire in its prefire condition, less the fair market
value of the land and timber in its postfire condition. The bill
would provide that non-fee-based public benefit use, land
conservation management activity, and timber operations conducted in
compliance with all laws and regulations pertaining or related to
fire safety shall not be deemed a foreseeable risk in the context of
any damage related to fire or its escape onto the property of
another.
Existing law provides that any person who cuts down or carries off
any wood, underwood, tree, or timber, or girdles or otherwise
injures any tree or timber without lawful authority, as specified, is
liable for treble the amount of damages that may be assessed
therefor in a civil action.
This bill would provide that this provision shall not apply to
damages caused by any wildfire, other than an arson fire.
Existing law provides that any person who personally or through
another willfully, negligently, or in violation of law sets fire to,
allows fire to be set to, or allows a fire kindled or attended by him
or her to escape to the property of another is liable to the owner
of that property for any damages to the property caused by the fire.
This bill would apply to a person who negligently, or in violation
of law, commits any of the acts described above, instead of a person
who personally or through another willfully or negligently commits
any of those acts. The bill would require an action for damages under
this provision to be brought within 3 years of the date of official
extinguishment of the fire. The bill would require a public entity to
give notice within 90 days of the official extinguishment of a fire
to any person it has probable cause to believe may be liable for
damages caused by the fire so that the entity may bring a civil
action to recover those damages. By increasing the duties of local
fire protection agencies, this bill would impose a state-mandated
local program.
Under existing law, if a fire originates from the operation or use
of an engine, machine, barbecue, incinerator, railroad rolling
stock, chimney, or any other device that may kindle a fire, the
occurrence of the fire is prima facie evidence of negligence in the
maintenance, operation, or use of that engine, machine, barbecue,
incinerator, railroad rolling stock, chimney, or other device. If the
fire escapes from the place where it originated and it can be
determined which person's negligence caused the fire, that person is
guilty of a misdemeanor.
This bill, instead, would provide, if a fire originates from the
operation or use of an engine, machine, barbecue, incinerator,
railroad rolling stock, chimney, or any other device that may kindle
a fire, and that fire escapes from the place where it originated, and
it is proven that a person's negligence proximately caused that
fire, that person is guilty of a misdemeanor and may be held civilly
liable for his or her negligence.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
The Z'berg-Nejedly Forest Practice Act of 1973 prohibits a person
from conducting timber operations unless a timber harvesting plan
prepared by a registered professional forester has been submitted to
the Department of Forestry and Fire Protection. The act requires the
State Board of Forestry and Fire Protection to submit to the
Legislature on December 1st of each year a report on actions taken
pursuant to the act during the preceding fiscal year.
This bill would instead require the board to submit the report on
August 1st of each year.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3346 of the Civil
Code is amended to read:
3346. (a) For wrongful injuries to timber, trees, or underwood
upon the land of another person , or removal
thereof of that wood , the measure of damages is
three times such the sum as would
compensate for the actual detriment, except that where
unless the trespass was casual or involuntary,
or that the defendant in any action brought under
this section had probable cause to believe that the land on which the
trespass was committed was his or her own or the land of
the person in whose service or by whose direction the act was done,
the measure of damages shall be twice the sum as would compensate for
the actual detriment , and excepting further that where
. If the wood was taken by the authority of
highway officers for the purpose of repairing a public highway or
bridge upon the land or adjoining it, in which case
judgment shall only be given only in a
sum equal to the actual detriment.
(b) The measure of damages to be assessed against a defendant for
any trespass committed while acting in reliance upon a survey of
boundary lines which that improperly
fixes the location of a boundary line, shall be the actual detriment
incurred if both of the following conditions exist:
(1) The trespass was committed by a defendant who either himself
or herself procured, or whose principal, lessor, or
immediate predecessor in title procured the survey to be made
; and .
(2) The survey was made by a person licensed under the laws of
this State state to practice land
surveying.
(c) Any action for the damages specified by subdivisions (a) and
(b) of this section must shall be
commenced within five years from the date of the trespass.
(d) Damage caused by an escaping fire, other than an arson fire,
shall not be deemed a trespass for purposes of subdivisions (a) and
(b).
(e) The amount of monetary damages recoverable by any person,
including a governmental entity, for fire escaping to the land of
another, other than arson, shall be limited to the fair market value
of the land and timber affected by the fire in its prefire condition,
less the fair market value of the land and timber in its postfire
condition.
(f) Non-fee-based public benefit use, land conservation management
activity, and timber operations conducted in compliance with all
laws and regulations pertaining or related to fire safety shall not
be deemed a foreseeable risk in the context of any damage related to
fire or its escape onto the property of another.
SEC. 2. Section 733 of the Code of
Civil Procedure is amended to read:
733. (a) Any person who cuts down or
carries off any wood or , underwood,
tree, or timber, or girdles or otherwise injures any tree or timber
on the land of another person, or on the street or
highway in front of any person's house, village, or
city lot, or cultivated grounds ; or
, on the commons or public grounds of any city or town, or
on the street or highway in front thereof of
any city or town , without lawful authority, is liable to the
owner of such that land, or to
such that city or town, for treble the amount
of damages which that may be assessed
therefor , in a civil action ,
in any Court court having jurisdiction.
(b) This section shall not apply to damages caused by any
wildfire, other than an arson fire.
SEC. 3. Section 13007 of the Health and
Safety Code is amended to read:
13007. (a) Any person who
personally or through another wilfully, negligently, or in
violation of law, sets fire to, allows fire to be set to, or allows a
fire kindled or attended by him or her to escape to, the
property of another, whether privately or publicly owned, is liable
to the owner of such that property for
any damages to the property caused by the fire.
(b) Any action for damages under this section shall be brought
within three years of the date of official extinguishment of the
fire.
(c) A public entity shall give notice within 90 days of official
extinguishment of a fire to any person it has probable cause to
believe may be liable for damages caused by the fire so that the
entity may bring a civil action to recover those damages.
SEC. 4. Section 4435 of the Public
Resources Code is amended to read:
4435. If any a fire originates from
the operation or use of any an engine,
machine, barbecue, incinerator, railroad rolling stock, chimney, or
any other device which that may kindle
a fire, the occurrence of the fire is prima facie evidence
of negligence in the maintenance, operation, or use of such engine,
machine, barbecue, incinerator, railroad rolling stock, chimney, or
other device. If such and that fire escapes from
the place where it originated , and it can be
determined which is proven that a person's
negligence proximately caused such
that fire, such that person is
guilty of a misdemeanor and may be held civilly liable for his
or her negligence .
SEC. 5. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
SECTION 1. Section 4515 of the Public Resources
Code is amended to read:
4515. The board shall submit to the Legislature on August 1st of
each year a report on the actions taken pursuant to this chapter
during the preceding fiscal year. The report shall include a
statement of the actions, including legislative recommendations that
are necessary to more fully carry out the purposes and requirements
of this chapter.