Court applies forest fire statute beyond railroads

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Anyone who negligently starts a forest fire is liable for double damages and attorney fees, the Wisconsin Supreme Court held on Mar. 26.

The ruling reverses a published opinion of the Court of Appeals, which held that only railroad corporations were subject to double damages. Heritage Farms, Inc. v. Markel Ins. Co., 2008 WI App 46, 309 Wis.2d 217, 747 N.W.2d 762.

After a 2003 forest fire destroyed more than 500 acres of forest, the injured property owners sued those responsible in Waushara County Circuit Court.

In addition to compensatory damages, they sought double damages and attorneys fees pursuant to sec. 26.21(1).

The circuit court and Court of Appeals both held that the statute applied only to railroad corporations, but the Supreme Court reversed, in an opinion by Justice Annette Kingsland Ziegler.

Justice Patience Drake Rossensack dissented, joined by Justice Michael J. Gableman.
Section 26.20, which applies only to railroad corporations, dictates safety requirements to protect against fires, and subsec. (9) provides statutory penalties for failure to meet them.

Subsection 26.21(1) then provides, “in addition to the penalties provided in s. 26.20, the United States, the state, the county or private owners, whose property is injured or destroyed by forest fires, may recover, in a civil action, double the amount of damages suffered, if the fires occurred through willfulness, malice or negligence [plus attorney fees](emphasis added).”

Notwithstanding the italicized language, the Supreme Court held that subsec. 26.21(1) allows the imposition of double damages and attorney fees against any party who causes a forest fire, not just railroad corporations.

Looking to a dictionary, the court noted that “in addition to” is defined as “over and above; besides.”

The court concluded, “Thus, the phrase ‘in addition to’ does not mean that Wis. Stat. sec. 26.21(1) applies only when it is being added to penalties under Wis. Stat. sec. 26.20. Rather, the phrase ‘in addition to’ means besides the penalties provided in sec. 26.20, the penalties of sec. 26.21(1) may also be applicable.”

Ziegler’s majority opinion acknowledged that every previous Supreme Court opinion that addresses the statute, or its predecessor, involves a railroad corporation. However, the court found this irrelevant, because the statute was revised in 1977, and all those decisions predate the amendments.

Turning to policy, the court also defended its opinion based on the importance of the timber industry to the Wisconsin economy.

“Our forests are important not only to those who enjoy recreational activities and hunting, but they are also important to our ecology and our economy,” Ziegler wrote.

The court further held that mere negligence is required for the imposition of liability under the statute, not gross negligence.

The court acknowledged that earlier court opinions considering the statute have concluded that the phrase, “willfulness, malice or negligence,” requires a showing of “gross negligence” for liability.

However, in Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962), the court abolished the concept of “gross negligence.” Because the Legislature amended the statute in 1977, after Bielski, without changing the statutory language, the court concluded that the legislature must have intended that ordinary negligence be sufficient for liability under the statute.

In dissent, Justice Roggensack wrote that the term “in addition to” is plain and unambiguous, and requires underlying liability pursuant to sec. 26.20, in order for liability under sec. 26.21 to attach.

“[A] plaintiff employing sec. 26.21(1) could never obtain damages that are ‘[i]n addition to the penalties provided in sec. 26.20’ if the conduct that caused the fire did not violate sec. 26.20, thereby permitting the State to assess a penalty under sec. 26.20,” Roggensack wrote.

She continued, “[W]ere it not that the damages that a property owner seeks to double under Wis. Stat. sec. 26.21(1) arose from the same conduct that could support a penalty under Wis. Stat. sec. 26.20(9), the phrase, ‘In addition to the penalties provided in sec. 26.20’ would have no meaning. It is a basic premise of statutory construction that all words in a statute must be given meaning.”

Analysis

It is true, as the majority court notes, that “in addition to” and “besides” are synonyms.
It is also true that “besides” is a synonym of “separate or distinct from.”

However, “in addition to” cannot reasonably be considered a synonym of “separate or distinct from.”

And yet, that is how the court interpreted the term.

It is as absurd as if one were to note that “approval” and “penalty” are both synonyms of “sanction,” and to therefore interpret the word “approval” to mean “penalty.”