Kristen Alexander was just scraping by in the fall of 2017, living on food stamps. Her small hatchback — a 2009 Honda Fit — wasn’t worth very much, but it was reliable. She relied on that car as she searched for better career prospects.
She was absolutely crushed when the Honda was totaled during what became known as the Nuns Fire, one of the deadly Wine Country fires that roared through Napa and Sonoma counties in October of that year.
But flames didn’t total Alexander’s Honda. Firefighters hooking hoses to a hydrant blasted pressurized water over landscaping rocks the size of golf balls, she alleged in a claim against the state. Alexander’s car, legally parked in a residential neighborhood of Napa at least a mile from the fire line, was pummeled by flying stones. The firefighters didn’t bother leaving a note
on the windshield, Alexander said.
She assumed that once she filed a claim with the state, the California Department of Forestry and Fire Protection would pay for the damage. But her claim was denied.
“’We have immunity,’” Alexander recounted what an official in the claims office told her. “’We don’t have to pay for anything that happens when there’s an emergency like that.’”
The state’s response letter to Alexander’s claim cites an immunity statute that shields firefighters and their agencies from paying for damages they cause during a wildfire, even in egregious cases of negligence or for incidents that occur miles from a fire line. The protections extend as far as claims for wrongful death. Firefighter immunity is just one legal defense the state uses when rejecting claims for firefighting damages.
A Sacramento Bee investigation found that the state rejected more than $20 million in firefighting damage and personal injury claims from January 2017 through October 2018 alone. That was before the deadly Camp Fire in Butte County, the most destructive in state history.
Fire officials said the legal immunity the state legislature set into law decades ago serves a vital function. Without the protections from lawsuits, firefighters would second guess critical decisions made in the hectic moments of battling fast-moving fires, officials said.
“We’re going to be cognizant of the situation as best we can, but we have a job to do and we’re going to get in there and do it,” said Cal Fire Deputy Chief Scott McLean.
Sometimes, firefighters said, they have no choice but to bulldoze a farmers’ fence in order to cut a fire line to protect a town. Other times, they need to knock down a door or break a window to save someone from inside a burning home.
“With our immunities, we just go and take care of the task,” said Jeff Meston, a South Lake Tahoe fire chief who’s president of the California Fire Chiefs Association. “If we were concerned about, ‘Oh gosh, if we break this door and the homeowner is not here, and how much is that going to cost and is it within our budget?’ We would be a lot more timid and then, of course, then we would be using very valuable time up.”
But with California’s fires now ravaging communities nearly year round, some question whether it still makes sense to give fire agencies a blanket pass from paying out in cases of obvious negligence.
“Why shouldn’t the taxpayers bear the burden of that?” said Martin Buchanan, a San Diego appellate attorney. “The firefighters are out there serving the public, so why shouldn’t the public be on the hook for that? Why should some poor property owner or vehicle owner bear the brunt of that huge expense?”
MILLIONS IN DAMAGES
Buchanan has pushed the limits of the state’s firefighting immunity all the way to the Fourth District Court of Appeal. He lost.
The family of Thomas Varshock hired him to appeal a case in which a San Diego County Superior Court judge ruled in favor of Cal Fire after Varshock’s family sued the agency, alleging he’d still be alive if not for firefighters’ negligence in the 2007 Harris Fire.
The family alleged a Cal Fire crew shouldn’t have allowed Varshock and his son into their vehicle while firefighters tried to fight a fire burning the family’s home. When the fire burned over the engine, Thomas Varshock couldn’t get out in time, and he burned to death. His son and the firefighters escaped, but they suffered serious burns, according to court documents.
The Varshock family’s attorneys didn’t dispute that firefighters were immune from liability, but they argued that the only loophole on the books to those ironclad protections applied: A section in the state’s vehicle code that says firefighters can be found liable for damages if they operate a vehicle negligently.
The Fourth District Court of Appeal in 2011 ruled in Cal Fire’s favor.
“The way the court interpreted the statute it decided the Legislature intended to create a broad immunity for any type of injury involved in fighting fires,” Buchanan said.
Usually, the “injury” in claims Californians file against firefighters involves property damage.
To understand the scale of the issue, The Sacramento Bee requested claims data from the Department of General Services, which processes damage claims on behalf of state agencies, including Cal Fire.
Since 2015, state officials have cited the firefighting immunity statute when they denied at least 37 damage claims totaling about $1 million in lost property, according to a Sacramento Bee analysis of claims data provided by The Department of General Services.
Since 2015, the state only approved two claims for damage Cal Fire caused during firefighting operations, both in Riverside County, according to the Department of General Services. One claim was for a $375 gate; the other was for $1,322 in damages to an underground water system.
Damage claims have to be filed with the state before Californians can pursue a lawsuit. The state could have used the immunity statute to defend against dozens of other claims worth millions of dollars had those claims advanced to lawsuits.
Between January 2017 and October 2018, the state rejected 194 claims worth $19.9 million in Cal Fire property damage and personal injury claims for other reasons; a common denial was for cases in which individuals sought non-monetary damages, such as emotional distress.
To get a sampling of what the most common property damage cases were, The Bee requested through the California Public Records Act copies of around 60 claims that were denied between January 2017 through October 2018.
The most common cases usually involved property owners alleging bulldozers and other firefighting equipment damaged fences, roads, gates, piping and septic systems. Others sought compensation for damage caused by air tankers dumping fire retardant on homes, cars and into swimming pools. Some of the damages were alleged to have occurred miles from fire lines.
The claims sought compensation ranging from a few hundred dollars to tens of thousands.
COVERED IN RETARDANT
Pablo Barriga is a retired fire captain who spent 35 years with the Orange County Fire Authority, so he knew he had to take cover when he heard the roar of a DC-10 air tanker barreling just a few hundred feet above his Murrieta home in Riverside County.
It was Dec. 7, 2017, and the 300-acre Liberty Fire had largely burned through the foothills around his property, leaving his home unscathed, Barriga said.
A video Barriga shot that day was posted to YouTube. It’s gotten more than 2 million views. It shows Barriga running to get under a porch as the plane roars overhead, leaving a deafening downpour of red fire retardant and debris in its wake.
“Oh my God,” Barriga says in the video. “Oh my God.”
In the footage, Barriga surveys his property and finds a layer of red retardant covering every surface, including his pickup truck. He laughs bewilderingly at times in the video, but he’s not laughing now.
Barriga said in a phone interview that the privately owned DC-10 that was working for Cal Fire under contract was too low when it dumped its load of 12,000 gallons of retardant directly onto his property, blowing apart his roof and coating the inside of the home with a noxious mixture of red clay and fertilizer.
“There were boulders bigger than softballs inside my residence,” Barriga said. “With that velocity and that amount of liquid being dropped on the house, it basically destroyed the whole interior.”
Barriga said his insurance only covered part of the ongoing repairs. He filed a claim with Cal Fire and it was rejected. He’s since sued.
He said he knows the state’s immunity statute shields Cal Fire from damages, but he’s hoping that the private company that owns the plane will have to compensate him. He acknowledged even that could be a long shot.
“They may say that they’re under the umbrella of the agency, and they’re protected,” Barriga said. “I don’t know if that’s even been tested in a legal court.”
FRESNO SOAKED IN RED
Barriga’s claim isn’t the only one that the state denied after someone claimed an errant tanker dumped retardant on their property.
A Riverside County man alleged in a claim that Cal Fire’s tanker plane mistakenly dumped a load of retardant into his swimming pool in August 2017. The homeowner wanted Cal Fire to reimburse him for the $3,500 he paid for his home insurance deductible. His claim was denied under the immunity statute.
The state did not claim immunity when it denied Marya Obenauf’s claim that retardant soaked her SUV in Fresno, hours from a fire line. Instead, the Department of General Services said the state wasn’t liable at all for the damage.
Obenauf was sitting in her black Range Rover in a Fresno area shopping center on July 29, 2017, when she noticed a splotch of pink on her windshield.
“I looked around and the whole parking lot is getting speckled reddish, and I’m like, ‘Oh my god, is this a nuclear attack?’” she said. “It just kept coming down.” The top and one side of her SUV was coated in the red stuff.
It turned out that a National Guard tanker plane flying from Fresno to help Cal Fire fight a blaze near Jamestown — nearly 100 miles away — had a malfunction that caused it to dump its load of retardant on the River Park neighborhood.
Cal Fire sent a letter a couple of days later warning residents about the need to wash off the retardant before it stained. The agency apologized for the mishap in the letter.
State officials also provided information to local media encouraging residents like Obenauf to file claims to recoup damages. The officials made no mention of the fact the state likely wouldn’t pay up.
That was a common complaint among those interviewed by The Bee whose claims were denied. Several people said firefighters went so far as to inspect damage they caused and encouraged property owners to file claims.
That was the case for Tuleyome, a small Woodland-based non-profit that owns wilderness property in Lake County.
Its president, Andrew Fulks, said Cal Fire bulldozers tore out more than $6,000 in fencing and a heavy metal gate last summer during the Pawnee Fire. Fulks said his organization had provided firefighters the combination to its lock in hopes that the gate would be spared. Fulks said the lock was still attached and dangling from the bulldozed gate when Tuleyome workers found it.
Fulks said firefighters at first said they would pay for the damage, but eventually told him to file a claim. Fulks said he would have never spent the $25 claim filing fee, gone through the hassle of filling out the forms and sending in repair estimates if he would have known it was a lost cause.
“If they said, ‘We’re sorry for breaking your gate, but we’re not liable,’” Fulks said, “the frustration is it’s being sort of led along.”
Alexander, the Napa woman whose car was pelted by rocks from the fire hydrant, had a similar experience. She said a fire official inspected her damaged Honda and said, “Well, this is unacceptable. There should be no problem with you getting your stuff fixed.”
She said once her claim was denied she didn’t have enough money after she paid her $1,000 deductible to buy a decent vehicle with the few thousand her insurance paid.
“I had nothing,” Alexander said. “I had nothing when they did that.”
At one point, she was biking 26 miles a day after landing jobs teaching physics at local colleges, she said.
The experience has soured her on firefighters. She said she no longer trusts them.
“It broke my heart,” Alexander said, as she struggled not to cry. “It really did.”