Billions on the line as jury to decide if PacifiCorp is liable in 2020 Labor Day fires

Lawyers for Oregonians who lost homes and other property during the 2020 Labor Day fires repeatedly asked a jury in Portland to hold PacifiCorp responsible in a high-stakes class action lawsuit blaming the utility for igniting four of the wildfires.

“This is a massive corporation that caused trauma to the state, destroyed entire parts of it, and they want you to find them responsible for nothing at all. They are taking no accountability — it’s unbelievable,” plaintiffs’ attorney Nicholas Rosinia told the jury during closing arguments Wednesday. “They want you to say: the survivors get nothing. Their story doesn’t matter. Their homes and memories were erased ... but to PacifiCorp that doesn't matter."

The all day closing arguments were the coda of the seven week trial in Multnomah County Circuit Court where jurors heard testimony from witnesses and fire experts focused on whether PacifiCorp is liable for millions or even billions in damages for its power lines igniting the Santiam, Echo Mountain, 242 and South Obenchain fires.

Defense attorney Doug Dixon countered the evidence showed limited reason to believe the utility's power lines caused the destructive wildfires. PacifiCorp, which is owned by multinational corporation Berkshire Hathaway, took every reasonable precaution and didn’t have the information to justify throwing entire communities into darkness during an emergency, Dixon said.

“There’s no witness who came in and said based on the forecasts Pacific Power was receiving that it should’ve deenergized in this specific area of its service territory, or another particular area of its service territory,” Dixon said. “That’s because there was no forecast specific enough to show that the thresholds for a public safety power shutdown were met anywhere in Pacific Power’s service territory.”

As the jury begins deliberations, here are some key things to know.

Jury to answer 23 questions

Beginning this afternoon, the jury of 12 will begin deliberations. They’ll fill out a form that asks 23 questions. The first and most important asks whether PacifiCorp is negligent — defined as acting without reasonable care — for any or all of the fires. They’ll simply check the “yes” or “no” box for all four fires.

Nine of the 12 jurors must agree for a ruling in favor of the plaintiffs - those who lost homes or property in the fires - to succeed. Otherwise, the ruling will be in favor of PacifiCorp.

Follow up questions ask whether PacifiCorp’s alleged negligence caused harm and whether the utility's actions rise to the level of gross negligence — a lack of care that demonstrates reckless disregard for the safety or lives of others.

Jurors also will field questions on recklessness, as well as private and public nuisance, before considering economic and non-economic damages for the 17 lead plaintiffs, who lost homes or property in the fires, and are asking for damages.

Did PacifiCorp's actions harm the entire class?

Another critical question the jury will consider asks whether PacifiCorp's actions harmed the entire class — roughly 2,500 properties within the boundaries of the four fires. The jury will decide whether PacifiCorp's actions were grossly negligent and caused harm to the entire class.

A jury finding "yes" to either question would open the door to anyone impacted by the four fires, within the established boundaries, to potentially get relief in a second phase of the trial. That scenario could take the payout into the billions.

PacifiCorp has strongly sought to avoid that ruling. For example, they have disputed that everyone in the Santiam Canyon was impacted by power line fires given the proximity of the original Beachie Creek Fire.

The plaintiffs' and defendants' arguments

For plaintiffs, the case was straightforward: PacifiCorp faced dire warnings of fire danger, due to extreme winds that could bring down power lines, and took no action to prevent the ignition and spread of fires that devastated the Santiam Canyon, Otis/Lincoln City area and in two areas of southern Oregon.

More: Labor Day fires trial: PacifiCorp pushes blame from power lines to Opal Creek fire

For defendants, the legal strategy was slightly more complex. They cast doubt on whether PacifiCorp's power lines were actually to blame and focused much of their attention, at least in the Santiam Canyon, on the previously burning Beachie Creek Fire that they contend did the lion’s share of damage.

Dixon fought the plaintiffs’ notion that PacifiCorp had demonstrated anything short of “reasonable” caution. He praised PacifiCorp’s fire models and wildfire mitigation plan while holding the utility’s vegetation management was up to date.

“Pacific Power went above and beyond on Labor Day 2020,” Dixon told the jury.

The defense also applied an “act of god defense” that points to inevitable acts of nature that cause harm, rather than negligence.

“They say it’s an act of god, but who provided the spark?” Rosinia retorted. “They provided the spark, and it led to destructive wildfires across Oregon.”

Focus on the Santiam Canyon

Throughout the trial — and in closing arguments — there was heightened focus on the Santiam Canyon, where half the plaintiffs reside and the largest share of the class that lost homes lives.

The defense focused on attempting to prove that the original Beachie Creek Fire — ignited in the Opal Creek Wilderness weeks earlier — spread and caused the damage in the canyon, not downed power lines.

More: ‘Missed opportunity?’ Records detail Forest Service response to Beachie Creek Fire before blowup

Dixon cited Dr. Neil Lareau's testimony to draw a connection between the original Beachie Creek Fire and the smaller fires that developed Labor Day night in Gates, Mill City and Lyons.

Lareau, a professor of atmospheric science at the University of Nevada, testified long-range embers ignited critical fires in the canyon, including on Potato Hill above Gates. Dixon noted every witness saw the fire start at least a third of the way up the mountain, not at the bottom, illustrating it couldn’t have been power lines.

Dixon also repeatedly questioned the class action boundary in the Santiam Canyon, saying PacifiCorp didn’t supply power in parts of the Santiam Canyon where they’re being asked to be held liable for power line fires.

“No evidence, no experts, no fact witnesses could explain how this boundary was drawn,” Dixon said.

Rosinia countered that PacifiCorp acknowledged their power lines ignited at least eight fires in the canyon, including at the old Gates School — which led to the evacuation of hundreds of firefighters who might otherwise have been able to fight fires that evening.

"Their fire drove out hundreds of firefighters, leaving (the Santiam Cayon) defenseless," Rosinia said. It's a critical point because under the law, PacifiCorp can be held liable if they simply contributed to the destruction, even if the original Beachie Fire did damage, too.

He also said the defense had asked the jury to believe the original Beachie Creek Fire roared for around 12 miles from the Opal Creek Wilderness into the Santiam Canyon in one night, but that the eight power lines that ignited fires didn’t grow at all or have any impact.

“They don’t get to define the scope of their own negligence,” Rosinia said.

Zach Urness has been an outdoors reporter in Oregon for 15 years and is host of the Explore Oregon Podcast. Urness is the author of “Best Hikes with Kids: Oregon” and “Hiking Southern Oregon.” He can be reached at zurness@StatesmanJournal.com or 503-399-6801. Find him on Twitter at @ZachsORoutdoors.

This article originally appeared on Salem Statesman Journal: Jury to decide if PacifiCorp liable for billions in Labor Day fires