Restitution and the Statute of Repose

February 1, 2008

HB 3235 was introduced this week by no fewer than 17 state representatives. It requires that a criminal court in a sentencing hearing provide for appropriate restitution to the crime victim. This is now discretionary. This I think is appropriate but its utility is limited by the defendant’s ability to pay and there may be a conflict between the defendants ability to pay restitution and sentencing the defendant to incarceration.

What interests me particularly though is when our legislature feels it appropriate that victims ought to get restitution. If a condominium falls on someone four years after it was built, the legislature believes there should be no restitution. If a school or bridge collapses 6 years after completion, our legislature believes the the victims should not receive any restitution. These are the results of the legislature’s granting of immunity to absolutely everyone in the construction industry through the statute of repose.

In Washington, I guess, you’d be better off if you were shot than if you were hurt in a collapsing buiding, bridge or any other constructed thing. You’d have a better chance of the responsible person covering your medical bills if that person were in prison than you would have if the person was a member of the construction industry.

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Prosecutions and the Cost of Firefighting

January 18, 2008

The high cost of firefighting is driving the prosecution of people who accidentally cause fires, resulting in jail time and heart stopping fines. But that’s not all. Upon conviction the culprit is then typically beset with civil lawsuits by property owners, who can use the conviction as evidence in their suits. FEMA set the cost of the highly publicized wildland fires in California at $126 million. A 22 year old Wenatchee man was just convicted of starting a wildland fire by lighting a smoke bomb, not a roman candle or string of firecrackers, a single smoke bomb. He got 30 days and will shortly be ordered to make retribution for the firefighting costs, which were said to be just under $2 million.


Your Rights Regarding Wildland Fires

January 16, 2008

The spate of wildland fires in recent years has of course been followed by a spate of litigation. People who are involved with a wildland fire should consider that the governmental fire investigators are not necessarily the best and there is no substitution for retaining an expert whether you are accused of causing the fire or suffered damage from a fire. There are rather extensive federal standards for both investigations and fire fighting. Some of the more remote counties with volunteer staffs do not always make a serious effort to comply with federal guidelines and a some of the investigations depart surprisingly far from generally accepted standards. For this reason most litigation involves issues of causation and whether a portion of the damage is the responsibility of the local fire department.

The importance of the job done by the fire department in extinguishing the fire and the governmental investigator in determining causation is magnified by the fact that the County Prosecutor can bring a criminal action against the person labeled as responsible the fire. The Bureau of Land Management is very aggressive in pursuing lawsuits for the restoration of federal land damaged by fire. It claims advantage of a federal law giving it 6 years in which to sue. Otherwise the statute of limitations is generally accepted to be three years but there is authority that it only two years.

If you are questioned in connection with a fire, before answering questions you should ask for as much information as possible about the fire. Find out exactly who it is who is questioning you. (Usually there will be two people.) Find out the extent of the fire, the extent of the investigation so far and whether you are a suspect. Remember that you are not compelled to answer questions and you can schedule an interview for any time that is convenient for you. Washington has not yet held that you have a right to have a lawyer present, so if you answer questions without one, you do so at your peril. You can, however, insist that your lawyer be present before you answer questions.

It strikes me as anomalous that an investigation which can lead to criminal charges is not recognized as being within the scope of your constitutional protections but at least as yet that recognition has not occurred.

If you own land where there is a threat of fire, be proactive and do what you can to mitigate the risk. This will also serve you well if your land is damaged by a fire and you are required to bring a lawsuit. Also look at insurance and consider whether you can get a liability policy covering you if you are accused of starting a fire.