Key Cases

While the common law and statutes vary from one state to another, several cases from the Southeast are instructive.

In an early decision by the Supreme Court of Alabama, the court identified flammability of materials, wind conditions, size of the planned fire, and type of material on adjacent property as some of the factors to be considered in weighing the reasonableness of a prescribed burn. Robinson v. Cowan, 158 Ala. 603, 605, 47 So. 1018, 1019 (1908). Ultimately, the court concluded due care “does not embrace the obligation to anticipate unusual wind springing up after the fire is started, or other factors intervening not reasonably suggested by the caution, care, and prudence stated.” Id. at 605, 47 So. at 1019.

In a case based on negligence that arose before the state enacted its prescribed burning statute, the Mississippi Supreme Court held that the standard of reasonable care applies both to the setting of a prescribed fire and to the tending of the fire thereafter: “Such [ordinary and reasonable] care must be used in setting the fire, and in keeping it or preventing its spread. It is commensurate with the danger reasonably to be anticipated, and is dependent on the circumstances of the particular case.” Wofford v. Johnson, 250 Miss. 1, 5, 164 So. 2d 458, 459 (1964). In Wofford, the defendant did not tend the fire and was liable for damage to his neighbor’s property.

More recently, in a case that came before the Georgia Court of Appeals, the landowner hired a former agricultural service employee to manage his land (the “burner”). Newton v. Jacobs, 358 Ga. App. 180, 854 S.E.2d 359 (2021).

The burner had extensive experience with prescribed burning and planned to conduct the prescribed fire when the burner knew a member of the Georgia Forestry Commission (the “GFC”) would be available to assist if needed. In preparation, the burner cut firebreaks on three sides of the field intended for burning and the GFC cut a line on the fourth. The burner also requested a burn permit for the specific day of burning, which the GFC issued. After testing the wind, the burner ignited the fire by “str[inging] a line of fire along the four sides of the field, intending for the fire lines to meet roughly in the center of the field.” However, the fire jumped the initial firebreak and subsequent fire lines cut by the GFC and the burner. Ultimately, the fire escaped to a neighbor’s property where the fire destroyed the neighbor’s “garage workshop, including various tools and car parts.” Id. at 180-82, 854 S.E.2d at 359–62.

The neighbor brought suit against the landowner and the burner. The defendants moved for summary judgment, asserting protection under Georgia’s Prescribed Burning Act. “The trial court granted summary judgment to [the landowner and the burner], finding that [the landowner and the burner] were entitled to the protections afforded by . . . § 12-6-148 and that the record contained no evidence from which a jury could reasonably conclude that [the burner] was grossly negligent. Id. at 182, 854 S.E.2d at 362.

The above cases provide general guidance on how courts may determine liability for a Burner or Owner. The following section summarizes the requirements and protections specific to prescribed fire liability in each Southern state.