Section 26.21. Civil liability for forest fires.

 

(1)  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. In a civil action, a court may award reasonable costs for legal representation to provide owners recovering damages under this subsection.

(2)  Persons causing fires in violation of this chapter shall be liable to the state in an action for debt, to the full amount of all damages done to the state lands and for all expenses incurred by the towns fighting forest fires and shall be liable to municipalities in an action for debt, to the full amount of all damages to the municipal lands and for all expenses incurred by the municipalities fighting such fires.

1977 c. 29 . This statute does not create liability in favor of a town. Town of Howard v. Soo Line Railroad Co. 63 Wis. 2d 500 , 217 N.W.2d 329 (1974). Sub. (1) is not limited to a specific class of tortfeasor, such as a railroad corporation, and a violation under s. 26.20 is not a prerequisite for applying sub. (1). The plain language of sub. (1) does not require "gross negligence." Heritage Farms, Inc. v. Markel Insurance Company, 2009 WI 27 , 316 Wis. 2d 47 , 762 N.W.2d 652 , 07-0983 . If it is determined that the owner's property was injured or destroyed by a forest fire that occurred through willfulness, malice, or negligence, the property owner is entitled to double damages as a matter of course. The use of "may" in sub. (1) does not authorize the recovery of double damages within the court's discretion. Rather, the use of "may recover" indicates that a property owner, whose property is injured or destroyed by a forest fire, "may" choose to bring a civil action against the tortfeasor to recover double damages. Heritage Farms, Inc. v. Markel Insurance Company, 2012 WI 26 , 339 Wis. 2d 125 , 810 N.W.2d 465 , 10-0355 .