COMMITTEE SUBSTITUTE
FOR
H. B. 4005
(By Mr. Speaker, Mr. Kiss, and Delegate Ashley)
[By Request of the Executive]
(Originating in the Committee on the Judiciary)
[February 4, 1998]
A BILL to amend and reenact section four, article three, chapter
twenty of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to the authority
and duties of the director of the division of forestry with
regard to forest fires, and limiting the liability of
certain persons for activities performed in connection with
fighting forest fires under the supervision of the director.
Be it enacted by the Legislature of West Virginia:
That section four, article three, chapter twenty of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 3. FORESTS AND WILDLIFE AREAS.
§20-3-4.Authority and duties of director of the division of
forestry
and others as to forest fires; expenditures
for forest fire control; limited liability of certain persons fighting forest fires.
Upon receiving notice of any fire which is injuring or
endangering forest land within the state, the director the state
forester of the division of forestry or their his or her duly
authorized representative representatives shall employ all
necessary means to confine, extinguish or suppress the fire. For
these purposes, such persons and their employees any temporary or
permanent employee of the division of forestry or any other
agency of the state and any volunteer shall, under the general
supervision of the director of the division of forestry, have the
right and authority to enter upon public or private lands, to
destroy fences thereon, to plow such lands, and in case of
extreme emergency, to set backfires thereon. No person
performing or reasonably attempting to perform any of the
activities authorized by the preceding sentence under the general
supervision of the director of the division of forestry, whether
as a temporary or permanent employee of the division of forestry
or any other agency of the state or as a volunteer, shall be
liable in damages for the death of or injury to any person or for
damage to any property as a result of his or her performance of
such activities to an extent greater than the applicable limits
of any liability insurance coverage available to such person
under any liability insurance policy or policies issued to the
division of forestry, any other agency of the state involved in suppressing the forest fire, any volunteer fire department of
which such person was a member and which volunteer fire
department was responding to the forest fire at the time of the
incident alleged to have caused such death, personal injury or
property damage, or any combination thereof. The limitation of
liability established by the preceding sentence shall not apply
if the death, personal injury or property damage alleged was
caused by such person's willful or criminal misconduct, gross
negligence or reckless misconduct, or by a conscious, flagrant
indifference to the rights or safety of any person harmed by such
conduct. The state forester director of the division of forestry
and any duly authorized representative may under the general
supervision of the director employ persons to detect fires which
may injure or endanger forest land and may likewise summon or
employ persons to assist in extinguishing such fires, who shall
be paid for the actual time so employed, at a rate per hour to be
determined by the director of the division of forestry:
Provided, That the rate per hour shall not exceed the rate per
hour paid for any comparable labor or skills by the department of
natural resources the division of forestry. Any person so
summoned who shall fail or refuse to assist in extinguishing any
such fire shall, unless such failure or refusal to assist is due
to physical inability, be guilty of a misdemeanor.
Expenditures for detecting, confining, extinguishing or suppressing fires described in this section shall be charged
against the state. The state forester the director of the
division of forestry or his or her agent representative shall
render to the director prepare, as soon as practicable, a sworn
statement with the names of all persons who were summoned or
employed to assist in fighting such fires, the time so spent by
each, as well as the names of persons who furnished equipment,
subsistence or supplies, or transportation therefor, and the
amount of money due each for such services, subsistence, supplies
or transportation. Requisitions shall be issued and payment of
the sums due shall be made in the same manner as is provided for
the making of other expenditures by the director of the division
of forestry.
NOTE: The purpose of this bill is to limit the liability of
persons employed by or volunteering with the division of forestry
in the suppression of forest fires to the extent of any
applicable liability insurance coverage. The bill also contains
changes which reflect the transfer of certain powers and duties
of the director of natural resources to the division of forestry
pursuant to §19-1A-3.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.