Fire Protection of Forests and Vegetation
ORS
477.089
Recovery for property damage
- liability for firefighting costs
(1)
As used in this section:(a)
“Economic and property damage” means the sum of:(A)
The lesser of the difference in the fair market value of property immediately before and immediately after a wildfire or the cost of restoring property to the condition the property was in immediately before a wildfire; and(B)
Any other objectively verifiable monetary losses.(b)
“Fair market value” means the amount, as determined by a state certified appraiser, that a willing buyer would pay to a willing seller for property in an arm’s-length transaction if both parties were fully informed about all advantages and disadvantages of the property and neither party is acting under a compulsion to buy or sell.(c)
“Forest tree species” means a tree species that is capable of producing logs, fiber or other wood materials that are suitable for the production of lumber, sheeting, pulp, firewood or other commercial forest products.(d)
“State certified appraiser” means an individual who has been certified as a state certified appraiser under ORS 674.310 (Duties and powers of board) and is qualified to appraise the property that is the subject of a fair market value determination.(e)
“Wildfire” means a fire that:(A)
Results from a violation of this chapter or of rules adopted under ORS 526.016 (General duties) or 526.041 (General duties of State Forester); or(B)
Originated on land used or capable of being used for growing forest tree species regardless of the existing use of the land.(2)
Except as provided in ORS 477.092 (Liability for destruction of property by wildfire) and 477.095 (Applicability of ORS 477.068, 477.085 and 477.089), in a civil action for property damage caused by a wildfire, the recoverable damages are:(a)
The amount of economic and property damages, if the wildfire did not occur as the result of recklessness, gross negligence, willfulness or malice; or(b)
Twice the amount of economic and property damages, if the wildfire occurred as the result of recklessness, gross negligence, willfulness or malice.(3)
Except as provided in ORS 477.095 (Applicability of ORS 477.068, 477.085 and 477.089) and subject to any other provision of this chapter limiting the recovery of fire fighting costs, a person who causes a wildfire is liable to any person or entity for the full amount of all expenses incurred by the person or entity in fighting the wildfire.(4)
The remedies provided under this section are in addition to any available criminal or civil penalties that may be assessed for the violation of a statute or rule but, subject to Article I, section 10, of the Oregon Constitution, are the exclusive remedies for damages or injury to property caused by a wildfire. This subsection does not:(a)
Prohibit the bringing of any cross claim, counterclaim or joinder of parties;(b)
Prohibit the institution of a suit under ORS 496.705 (Damage suits for unlawful killing of wildlife) for the recovery of damages for the unlawful taking of wildlife; or(c)
Affect the applicability of ORS 31.600 (Contributory negligence not bar to recovery) to an action.(5)
This section does not create a new cause of action or alter any existing cause of action. [2013 c.307 §2]Notes of Decisions
Under Former Similar Statute (Ors 477.090)
Liability under ORS 477.068 for firefighting costs does not constitute exclusive remedy precluding suit for damages. Henderson v. Nielsen, 127 Or App 109, 871 P2d 495 (1994), Sup Ct review denied
Law Review Citations
19 WLR 780 (1983)