Dep't of Agric. & Consumer Servs. v. Shuler Ltd.
| Citation | 139 So.3d 914 |
| Decision Date | 13 June 2014 |
| Docket Number | No. 1D13–0592.,1D13–0592. |
| Parties | DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Division of Forestry, State of Florida, and the Board of Trustees of the Internal Improvement Trust Fund, State of Florida, Appellants, v. SHULER LIMITED PARTNERSHIP, a Florida Partnership, Appellee. |
| Court | Court of Appeal of Florida (US) |
OPINION TEXT STARTS HERE
Pamela Jo Bondi, Attorney General, Diane G. DeWolf, Deputy Solicitor General, Britt Thomas, Chief Assistant Attorney General, and Joey Dingess, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellants.
D. Kent Safriet and Miguel “Mike” Collazo, III, of Hopping, Green & Sams, P.A., Tallahassee, for Appellee.
This is an appeal from a judgment based on a jury verdict. The Division of Forestry conducted a controlled burn of state property in Franklin County but before the fire was completely extinguished an ember from the smoldering fire drifted onto the appellee's property destroying 835 acres of trees. The jury based its verdict for the appellees on negligence, negligence per se, gross negligence and a violation of section 590.13, Florida Statutes.
One of the arguments on appeal is that the evidence was insufficient to support the jury's finding of gross negligence. We conclude that a jury could reasonably find the appellants were grossly negligent, based on expert testimony and other evidence presented by the appellees at trial. Whether negligence is ordinary or gross is a question to be resolved by the jury. See Courtney v. Florida Transformer, Inc., 549 So.2d 1061 (Fla. 1st DCA 1989). If there is some evidence from which a jury could make a finding of gross negligence, and in this case there is, the appellate court must affirm. Our resolution of this issue makes it unnecessary to consider the other principal arguments for reversal discussed in the dissent.
For these reasons, we conclude that the appellants have failed to demonstrate the existence of reversible error.
Affirmed.
Florida's susceptibility to wildfires, and the State's role in preventing them, play central roles in this case, which involves a jury verdict of $741,496.00 for damages to privately-owned timberland arising from a certified prescribed burn on state-owned lands within Tate's Hell State Forest. Due to highly prejudicial legal errors in the interpretation of the open burn statute, the trial was unfair and a new one warranted.
In the summer of 1998, the State of Florida suffered catastrophic wildfires, culminating in over half a million acres of land being burned, costing the state over $130 million. Governor Chiles declared a statewide emergency due to the “extraordinary fire conditions, recent and continuing fires, and the potential for more fires.” Fla. Exec. Order No. 98–165 (Jun. 25, 1998). At its next session, the legislature—based upon its legislative findings and purposes 1—made broad statutory changes including the adoption of an open burn statute—entitled “Open burning authorized by the Florida Forest Service”—that allowed for noncertified and certified prescribed burns, the latter's use to be encouraged on a more widespread and frequent basis to reduce wildfire risks. See Ch. 99–292, Laws of Fla.; see also Fla. H.R. Comm. on Agric., HB 1535 (1999) Staff Analysis 1 (Jun. 15, 1999). In doing so, the legislature exhorted the state forestry service to “maximize the opportunities for prescribed burning” via the new protocols and standards the new law established. It empowered the Florida Division of Forestry to conduct burns on any area within the state that was “reasonably determined to be in danger of wildfire.” § 590.125(4), Fla. Stat. Due to the threat of fire-related lawsuits, the legislature modified liability for damages or injuries resulting from prescribed burns “unless gross negligence is proven.” See§ 590.125(3)(b)-(c), Fla. Stat. ().2 With this backdrop in mind, we turn now to the prescribed burn at issue.
Tate's Hell State Forest is a single parcel of state-owned land in Florida's panhandle comprising over 202,000 acres. It is called Tate's Hell for a reason: portions of it are desolate and perilous swamplands. The tract known as Tate's Hell Swamp has longstanding lore for its namesake, attributed to the travails of Mr. Tate who barely survived a week-long foray into the mire's perils.3 Portions of the area in and around Tate's Hell were altered to allow for pine forestation in the 1960–70s, which continues to this day.
The Division of Forestry is responsible for managing Tate's Hell State Forest, which includes property owned by the Board of Trustees of the Internal Improvement Trust Fund. In 2008, the Division's annual remedial goal was to burn about 40,000–50,000 acres of the Forest's acreage. To do so, the Division obtained the necessary approvals to conduct a two-day certified prescribed burn of 3,267 acres in the Forest, the designated area termed the “prescribed burn area.” Prior to the initiation of the burn, the Division created a burn plan prescription 4 describing the targeted burn area, documenting what would be burned and why, specifying how to conduct the burn, identifying the authorization date and time period for the burn, and describing how the area would look afterwards. The Division also surveyed the area to ensure adequate firebreaks existed around the burn site.
On the first day of the scheduled two-day burn, the Division's burn dispatch 5 determined that conditions were favorable for the burn, which involved consideration of the burn's location, existing weather conditions, the amount of acreage, and other factors. After receiving authorization from dispatch, Certified Prescribed Burn Manager 6 (CPBM) Joseph Taranto lit a test fire and determined it was ready to go. The burn crew then lit a thirty-foot baseline around the entire burn area, and used a helicopter to drop small spheres, known as “ping-pong balls,” containing chemicals designed to create small fires upon impact with the ground. All went well the first day. After stopping the flames and determining they were not spreading, Taranto released his crew for the day. The second day of the burn was a repeat of the first; all went according to plan. Taranto again evaluated the weather and wind, called dispatch for authorization, and followed the same procedure as day one, ensuring that the flames were stopped and not spreading before releasing the crew.
After the two-day certified burn was complete, the Division's crews thereafter checked the burn area once or twice daily, ensuring no more smoke, heat, or fires existed. It used monitoring and “mopping up” activities designed to encircle the perimeter of the fire using different tools such as water, shovels, or rakes along the edges of the burn area. Mopping up increases the buffer area and is usually accomplished by a predetermined distance. The Division continued its twice-daily regimen until May 23, 2008, when a heavy rainstorm “fully extinguished” whatever remaining smoldering embers existed.
During the forty-five day period while the burn smoldered, three “spotovers” occurred. In contrast to flames spreading within a certified burn area, a spotover occurs when a live ember from the prescribed burn area is picked up by winds and cast onto adjoining property, causing a separate fire, usually due to unexpected changes in weather or wind direction. The first two spotovers, dubbed “High Bluff” and “High Bluff 2,” occurred on April 21st and May 6th, both crossing over the twenty-five to fifty feet of pavement of Highway 65 that formed the eastern edge of the prescribed burn area. In each case, the spotover went onto another part of the Division's own property and was contained.
The third spotover, which spawned this lawsuit, occurred on May 13th—a month after the initial two-day burn period—on the far west side of the prescribed burn area. On that day, cinders apparently were elevated and blown westward across a continuous water body at the headwaters of Apalachicola Bay known as Cash Creek, igniting on a portion of the 2,182 acres of timberland owned by Shuler Limited Partnership (Shuler LP), also known as Shuler's Pasture. To cross Cash Creek, this spotover had to jump between 800 to 1300 feet across the headwaters, which had been designated as a natural firebreak between the Shuler's Pasture on the west and the certified burn area on the east ( see Appendix).
Once Division officials verified that smoke was coming from Shuler's Pasture, they initiated a response. Division officials and firefighters determined the fire was fast-moving and that the affected area was thick with old-growth timber including a marshy bog that had not been burned in “several years.” Because the Shuler LP property had only small trails meant for four-wheelers, attempts were made to cut several new roads to access the fire. These efforts proved fruitless, the crew ultimately concluding they could not stop the fire. The fire ultimately destroyed timber on 835 acres of Shuler's Pasture; no injury or other damage occurred.
In its ensuing complaint against the Department, the Division, and the Board (which will be called the Division unless a distinction is necessary), Shuler LP originally alleged claims based on negligence, violations of section 590.13, Florida Statutes,7 negligence per se, and strict liability. The Division moved to dismiss, in part, because claims other than gross negligence were impermissible based upon the 1999 amendments, which sought to encourage certified burns by raising the standard for liability to gross negligence. Shuler LP countered that the gross...
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