Liability

Review of Lawsuits as a Result of Smoke from Prescribed Burning

Prescribed burning is one of the most effective management techniques available to forest managers in the southern pine forests. However; due to the increasing population, expansion of subdivisions into forested areas, more and better highways, and increased traffic; the resulting smoke has become a very serious problem. Prescribed burning without taking the necessary precautions to manage the smoke has resulted in many deaths and millions of dollars in damages and lawsuits.

If an accident occurs in the vicinity of your prescribed burn, you may be held liable even though it was not smoke that resulted in the accidents.

Ten-Year Period: 1979 - 1988

In 1989, a ten-year survey was made of the Southern State Forestry Agencies to determine the amount of litigation involving prescribed burning. There are probably many more that did not come to our attention. During this period, prescribed fires were alleged to have caused 20 Accidents that resulted in 10 Fatalities. (Agricultural burning also caused at least 8 Accidents resulting in 18 Fatalities during the same period.) There were also many serious injuries and many minor injuries, and - - untold number of damaged or totaled vehicles and lawsuits ranging in the millions of dollars! The vast majority occurred in the coastal plain areas of all the States from Mississippi to North Carolina - especially along the coast where fog is prevalent during fall. Many of the alleged claims were the result of fog - not smoke. Even so, many landowners were held liable.

Six-Year Period: 1989 - 1994

Another survey was made for the years 1989 through 1994. During this period, prescribed burning was alleged to have caused 19 Accidents that resulted in 7 Fatalities as well as many injuries, damage and lawsuits. This is an average of almost 3.2 accidents per year. (The average for the previous ten years was 2.4)

In both surveys, the majority of these accidents occurred during the Early Morning Hours, (6:00am to 8:00am) or during the night. Residual Smoke flowing down-drainage was the predominate cause. Many were caused by Fog (but alleged to have been caused by a prescribed burn close by). Many were a combination of Smoke and Fog. March was the most prevalent month for understory and field burns. October and November were the most prevalent months for logging debris. (See Table)

Most understory burns were next to the road. The majority of the scattered and chopped debris burns were within 3 miles. Windrows were usually within 3 miles with a maximum distance of 5 miles. Windrows resulted in the most problems.

The weather conditions, terrain, size of burn, and the amount, type and condition of the fuel are all important factors that determine how far smoke can be a problem.

HIGHLIGHTS OF SOME OF THE BETTER-KNOWN ACCIDENTS

Of the accidents reported, many had important information missing such as size, type of fuel, distance from burn and time of accident.

Georgia had more accidents reported then any other state because they have a system where all smoke-related incidents are investigated and a report made to the state office. Georgia’s reported accidents from 1995 to 2000 show the same trend of cause, times, distances etc. as during the two surveys.

October, 1989 - Three Fatalities
Louisiana	Burn was adjacent to interstate.
Time:	After midnight (about 12:20 a.m.)
	210 acres of chopped debris. Terrain was flat. Prescribed burn was on north side of interstate with a southeast wind.
Cause:	Residual smoke?
Litigation:	Settled out of court for about seven million dollars; landowner, three-fourths and trucking company, one-fourth.

November, 1989 - Six hospitalized
Mississippi	Accident on Interstate 2 miles from burn.
Time:	About 1:00 a.m. the next morning.
	240 acres of chopped debris with piles - heavy fuel loading. Interstate was two miles North of the burn with the last ½-mile being open pasture and slightly up-slope. The burn was conducted on a good smoke dispersion day with a north wind. A large smoke column was produced that lifted readily and dispersed to the South. The burn was patrolled until after midnight and reported when smoke crossed the interstate. However, the accidents occurred before the highway could be closed. The forecast for that night was calm to light easterly winds. After dark, the wind was generally from the east-southeast at 3 to 4 mph. (Weather station was five miles away). A large amount of residual smoke was produced all night. It flowed northwest down-drainage into the south side of a pasture that extended north to the interstate and then to a creek at the south side of the pasture that flowed Southwest. The creek area was fully stocked with hardwoods and understory shrubs. The slope from the accident site to the creek was a drop of only a few feet. The large volume of smoke piled up at the south end of the pasture since it could not all follow the creek down-drainage through the thick trees and understory. It began to fill the pasture and eventually, it backed up to and across the interstate.
Cause:	Residual Smoke
Litigation:	Most cases settled out of court in 1991. One was not settled until 1994. Total amount awarded was around two million dollars.

May, 1990 - One Fatality
Georgia	Accident on a state road 3/4 mile from prescribed fire and 1/2 mile from escaped fire.
Time:	About 6:00 a.m. the next morning.
	80 acres of chopped logging debris plus 50 acres by wildfire. Both areas had very light fuel loading. Burn was north of road with a south wind. The wind picked up after noon and the fire escaped burning in grass-type fuel. The fire was rapidly controlled and mopped up. The wind continued from the south dying down to calm at night. From midnight on into the next morning, heavy fog covered the entire Brunswick area. It made the TV news. The next morning about six, two logging trucks heading to a mill, ran off the road at curve near the fire area. The third log-truck stopped on the road to offer assistance and a car ran under it killing the driver.
Cause:	Fog (and possibly residual smoke)
Litigation:	Settled out of court for about one million dollars.

November, 1990 - Three hospitalized
Alabama	Accident on a county road ¼ mile from one block of 14 acres and 3/4 mile from another block of 27 acres.
Time:	About 7:00 a.m. the next morning.
	Two separate blocks of windrows. A total of only 41 acres. The two blocks were burned with a northwest wind. Both blocks had large windrows with dirt. However, they were very dry. A cold front had moved through the area and the dispersion index was excellent. The mixing height was 3100 feet. This day was picked so smoke would clear the road and railroad south of the burn. The firing was completed about 1:00 p.m. and it was patrolled until dark. Drainage from both blocks was to the north and northeast into a creek that flowed north. An old, unoccupied house burned the next morning about 3:00 a.m., 1/4 mile west of the accident site. The house was located at the west edge of a level pasture that extended to the road. West of the house, the drainage was to the southwest but it was thick with trees and brush. Patchy fog was reported in the area the next morning. An accident occurred the next morning involving two cars. Three people sustained minor injuries.
Cause:	Smoke from house and fog.
Litigation:	Settled for hospital and Doctor costs plus lost wages.

November, 1990 - One fatality
Louisiana:	Accident on interstate three miles southwest of the burn.
Time:	At 10:30 p.m.
	150 acres of chopped logging debris with very light fuel loading. A scattered stand of pole-sized pine was logged so the area could be planted for a fully-stocked stand. Average burning day with low mixing height and high transport winds. A large crew, using eight burning torches to complete as soon as possible, started strip-heads about 10.00 am. Southeast wind carried smoke to the northwest. All strips had burned together by 2:30 p.m. and crew mopped-up until 4:00 p.m. There is a very slight drainage to the south that drains to the Interstate 2 and ½ miles away. The area west of the drainage was a planted stand of small sawtimber size pines. The east side had planted pines about four feet in height. About 10:00 p.m., heavy fog began to form in the entire area. In another drainage (one mile west of the drainage from the burn), accidents started occurring in both the west and east lanes of the interstate. About 15 vehicles were involved. One of the first vehicles was a loaded furniture truck that burst into flames burning other vehicles. A State Trooper claimed he could smell woods smoke at site. (Vegetation along the right-of-way was burning). Also, a subdivision of large lots was located less then one mile south of the accident site. They did a lot of burning of their areas during the fall but were not checked until two years later and no one could remember burning the day of the accident even though there was evidence of many previous burns. The closest weather station was five miles away. It showed southeast wind at 6:00 p.m. and northeast wind (3 knots) at 6:00 a.m. the next morning. This weather station only measured and documented data at 6:00am and at 6:00pm (It’s primarily function was the upper air data.) It was alleged that the wind had changed to the northeast before the accident. However, at 10:00 p.m., the first-class weather stations in the general area showed the wind at: Gulfport – 190° at 6 knots, New Orleans – 160° at 3 knots and Baton Rouge – calm.
Cause:	Fog
Litigation:	Numerous lawsuits have been filed and most have been settled out of court. One still pending. The total amount so far is almost two million dollars with the landowner paying 75% or about $1,350,000.

March, 1991 - One Fatality
South Carolina	One mile from burn.
Time:	About 6:40 a.m.
	Understory burn (12-15 year old plantation) with old windrows and organic soil. Vehicle ran traffic light causing accident. Claimed could not see traffic light due to smoke and fog. Area is close to ocean and was fogged in that morning. Prescribed burn had gotten into some old windrows and peat producing residual smoke intermittently for days. Special circumstances: Organic soil; Dry fuel; Sea breeze.
Cause:	Residual Smoke & fog?
Litigation:	One suit settled out of court. Amount is not known.

November, 1991 - One Fatality
Georgia:	On interstate one mile from burn. (Closest point was ½ mile)
Time:	5:00 a.m. next morning.
	420 acres of marsh grass was burned for duck habitat. Fuel was one year old with some being two years old. The objective was to drain the ponds during summer and burn in the fall before duck season, and then flood them again. Firing of both blocks was completed by 1:30 p.m. By 4:30 p.m., no flames were left. The smoke was dissipated by a stiff wind and by nightfall, no smoke could be seen. Fog was reported from midnight until 6:00 a.m. the next day. An accident occurred the next morning involving a car and a truck. One person was killed. Two years later on the same date, 240 acres of the same area (two year-fuel) was burned again in an attempt to settle the lawsuit. (State would not issue a permit for the whole area.) Three video cameras were used to document the burn. One on a four-wheel drive vehicle, one on a cherry picker and one in a helicopter. The humidity was somewhat higher then 2 years ago. Firing was completed by 2:40 p.m. And by 4:00 p.m., only small spots of smoke were left. By 5:00 p.m., no smoke was left. The area was fogged in again that night. Similar to two years ago.
Cause:	Fog
Litigation:	The first lawsuit was for over a million. After the videoed re-burn, it was settled (out of court) for $125,000 and no others lawsuits were filed.

January, 1994 - Minor injuries to several children
South Carolina:	Adjacent to road.
Time:	About 3:30pm.
	Understory burn of 50 acres for hazard reduction. Not in compliance with smoke management guidelines. School bus entered smoke covered portion of road and tractor-trailer truck hit bus from behind. Several children received minor injuries.
Cause:	Active Smoke
Litigation:	Pending. (Probably settled by now)

DATA FROM ALL REPORTED ACCIDENTS

UNDERSTORY
Time of Day	Number	Distance	Number	Cause	Number	Litigation	Number
6am – 8am	8	Adjacent	10	Active	8	Yes	2
8am – 5pm	6	¼ - 1 mile	2	Residual	4	No	1
5pm – 6am	2	1 – 3 miles	1	Res & Fog	3	Pending	4
				Fog	2	Unknown	3
Total	16		13		17		10

FIELDS, GRASS & OTHER
Time of Day	Number	Distance	Number	Cause	Number	Litigation	Number
6am – 8am	4	Adjacent	5	Active	4	Yes	2
8am – 5pm	3	¼ - 1 mile	3	Residual	3	No	0
5pm – 6am	5	1 - 3 miles	2	Res.& Fog	6	Pending	0
				Fog	1	Unknown	4
Total	12		10		14		6

SCATTERED DEBRIS
Time of Day	Number	Distance	Number	Cause	Number	Litigation	Number
6am – 8am	6	Adjacent	4	Active	0	Yes	5
8am – 5pm	1	¼ mile	4	Residual	6	No	0
5pm – 6am	8	1 - 3 miles	4	Res.& Fog	5	Pending	1
		3 miles & >	1	Fog	4	Unknown	3
Total	15		13		15		9

PILES AND WINDROWS
Time of Day	Number	Distance	Number	Cause	Number	Litigation	Number
6am – 8am	8	Adjacent	4	Active	0	Yes	3
8am – 5pm	2	¼ mile	4	Residual	7	No	1
5pm – 6am	5	1 - 3 miles	4	Res.& Fog	8	Pending	1
		3 miles & >	1	Fog	2	Unknown	5
Total	15		13		17		10