VIII.Before making specific reference to the objections concerning the assessment of evidence, it is appropriate, given its importance regarding the issue of the burden of proof, to outline what this Chamber has stated regarding liability for burns (quemas), which is, in any case, the core point to be discussed in this matter: “III.- The Costa Rican legislator has long been concerned with promoting regulations on fires and burns on agricultural estates. The Código General de Carrillo contained, in its second part (Book III, Title III) relating to criminal matters, a chapter (VII) on 'Fires and other damages'. Specifically, numerals 663 and 664 penalized the burning of meadows and woodlands, imposing fines and other criminal sanctions. Decreto Nº XXIII, of June 20, 1854, regulated article 664 of the Código General de Carrillo. It established rules on the manner of setting fire on lands contiguous to sown fields to protect crops and plantations on lands dedicated to agriculture.
Such rules consisted of opening firebreaks (rondas), notifying neighbors and adjoining landowners, taking precautions to extinguish the fire, and remaining on the site until the fire was completely extinguished. The current Ley de Quemas y Cercas divisorias, No. 121 of October 26, 1909, prohibits conducting burns (quemazones) in the fields. It only authorizes them when they involve land clearing (desmontes) to enable lands for agricultural purposes. To do so, the following must be complied with, apart from the requirements indicated in the cited Decree:
- 1)Request a permit from the local political authority (Municipalidad),
- 2)Have guarantees and precautions to avoid greater destruction or harm to third parties,
- 3)Personally notify or have the authority notify by summons all adjoining landowners or interested parties of the day and time of the burn, at least two days in advance,
- 4)Leave a minimum distance of 400 meters from springs (manantiales) originating in the hills, and 200 meters from springs on flat lands. IV.- Legislative and administrative action seeks to alleviate a scourge whose action endangers, especially in certain high-risk zones, agriculture and livestock farming. The aim is to combat a harmful mentality derived from primitive production practices, as well as intentional and negligent actions aimed at harming production. Today, State action finds a higher-ranking legal basis insofar as Article 50 of the Constitución Política provides for the fundamental right of every citizen to a healthy and ecologically balanced environment. The problem must also be confronted not only in the agricultural sphere but also in the ecological sphere concerning the protection of natural resources. Fires contaminate the environment, destroy habitats and ecosystems. The development of the general principles of Agrarian Law and Environmental Law, therefore, must be oriented towards the preservation of nature to allow sustainable development, even when there is insufficient legislation charged with resolving such a serious problem. The regulations on fires and burns have been oriented, on the one hand, to safeguarding forestry activity and, on the other, agricultural or livestock activity. V.- In forestry matters, due to the great public interest in preserving the forest, there has been greater protection and control over fires and burns. The Ley Forestal No. 4465 of November 25, 1969, amended by Law No. 6084 of August 24, 1977, and No. 6442 of May 22, 1980, in force until 1990, contained various provisions aimed at preventing forest fires and burns, also including criminal sanctions when such illicit acts occurred (Articles 89 to 99). The current Ley Forestal, No. 7174 of June 28, 1990, broadens forest protection against fires and burns. All fires that, naturally or artificially, affect forests and forest lands are considered forest fires (Article 74). The public interest prevails in all actions undertaken to prevent and extinguish forest fires. Such measures are mandatory for all authorities of the country (Article 74). Every person must inform the nearest police authority of the existence or start of a forest fire (Article 78). Likewise, it is prohibited to conduct burns in forests and forest lands without having obtained authorization from the Dirección General Forestal. Anyone who intentionally or negligently causes a forest fire is punished with imprisonment (Articles 120 and 121), as is anyone who conducts burns on lands with forest aptitude (terrenos de aptitud forestal) without the proper authorization or for non-compliance with the conditions under which said authorization was granted (Articles 124 and 125). The Dirección General Forestal must conduct preventive campaigns and provide training to local and regional groups. In every management plan for areas subject to the benefits of the Law, a preventive plan for forest fires must be incorporated, planned, and immediately executed for the recovery of affected areas (Articles 94 and 95 of the Reglamento de la Ley Forestal). The national fight against fires and burns on forest lands has led to the creation of Commissions and other bodies to prevent and combat them. By Decreto Nº 17015-MAG, of May 2, 1986, the Comisión Nacional para los Incendios Forestales was created. Said Commission, according to Decreto Nº 19434-MIRENEM of December 11, 1990, has the authority to recommend national policies and prepare programs for the prevention and combat of forest fires. Also, by Decreto Nº 21859-MIRENEM of December 7, 1992, the Comité contra Incendios Guanacaste was created as a body for coordination, support, and monitoring of the Programa de Incendios Forestales de la Región Huetar Norte. VI.- By Decreto Nº 23850-MAG-SP, of November 4, 1994, a 'Reglamento para quemas controladas con fines agrícolas y pecuarios' was established. This regulation, based on the Ley Forestal and the Ley General de Caminos Públicos, establishes the minimum requirements necessary to conduct burns and fires. A burn (quema) is fire intentionally set, regulated by a pre-established plan, in which all preventive measures are followed to avoid damage to natural resources and the properties of adjoining landowners. Fires (incendios) are all those that, naturally or artificially, affect forests, forest lands, agricultural lands, or lands for livestock use (Article 1). To conduct burns on agricultural and livestock lands, written authorization from the MAG must be obtained; for this purpose, the competent official must determine the land-use capacity (capacidad de uso del suelo) and, if the necessary measures have been taken, indicate the additional measures for its execution (Articles 2 and 3). The owner or possessor, when intending to burn, must:
- 1)Determine, by means of firebreaks (rondas cortafuegos) (an area with a width double the height of the combustible material), the area to be burned and the combustible materials used;
- 2)open and sweep a firebreak on the perimeter of the area to be burned, which cannot be less than one meter wide;
- 3)have sufficient water and tools to extinguish the fire in case of emergency;
- 4)give prior notice to the local Police Directorate of the date and time of the burn;
- 5)have the assistance of at least one person;
- 6)conduct the burn against the wind and against the slope after 4:00 p.m. and before 7:00 a.m., avoiding doing it on windy days;
- 7)verify that the fire is completely extinguished. VII.- Burns can entail, for whoever produces them, civil and criminal liabilities. Civil liability is regulated in the Ley de Quemas y Cercas Divisorias by establishing the obligation of whoever conducts burns to pay for the damages (daños y perjuicios) caused as a consequence of the fire (Article 5, paragraph 4). The owner, possessor, or lessee of the land that, at the time of the fire, was prepared for that purpose is presumed to be the author of the burn. The Reglamento para Quemas Controladas con fines agrícolas y pecuarios (Decreto Nº 23850-MAG-SP), referring to said norms, establishes in its Article 7 the following: 'The person who conducts a burn, whether with or without a permit, shall be civilly liable for the damages that may be caused, in accordance with Articles 41 and 50 of our Constitución Política and the rules on non-contractual civil liability (responsabilidad civil extracontractual) that govern our legal system.' The general provisions contained in numerals 1045 and following of the Código Civil, on non-contractual civil liability, are supplementary applicable to this matter. VIII.- The Sala Constitucional, by means of Voto No. 3459 at 14:42 hours on July 20, 1993, established the repeal of Article 5, fifth paragraph, of the Ley de Quemas y Cercas Divisorias regarding criminal liability. That provision was understood to be repealed, in that aspect, with the enactment of the Penal Codes of 1924, 1941, and 1970 (Articles 555 subsection 21, 161, and 403, respectively). In the current Código Penal, anyone who contravenes the provisions aimed at preventing fires or avoiding their spread (subsection 1) and anyone who infringes the rules on burning weeds, stubble, or other products of the land (subsection 2) is penalized with a fine of 3 to 30 days. Indeed, the fourth paragraph of the rule in question establishes: 'In all cases, whoever conducts burns must pay for the damages caused by the fire. The owner, possessor, or lessee of the land that, at the time of the fire, was prepared for that purpose is presumed to be the author of the burn...'. The same Sala Constitucional (Voto 439-I-95 at 14:36 hours on August 22, 1995) clarified the aforementioned ruling 3459-93 in the sense that Article 5, paragraphs 5 and 6, of the Ley de Cercas Divisorias y Quemas is repealed only with respect to the criminal aspects it contains. IX.- The regulations on burns and fires follow the criterion of strict liability (responsabilidad objetiva). Fault (culpa) is presumed in whoever created the conditions of the damage by having assumed the risk of harming third parties with the burn or fire. The damages caused are at their expense. The injured party is exempt from proving fault. The burden of proof regarding the absence of fault corresponds to whoever burned or set the fire. It is a rebuttable presumption (presunción iuris tantum). Force majeure, the fault of the victim, or the act of a third party would be exemptions from liability. X.- Whoever, foreseeing the eventuality or possibility of damage, accepts the effects of the contingency assumes the risk. Liability is based on creating the risk of damage. The subject, upon initiating the activity, through their things, increases, potentiates, or multiplies the possibilities of danger. Even if it may be a lawful conduct, whoever assumed the risk must always indemnify the damage. There is greater reason to impute liability if the act stems from unlawful conduct. The injured party cannot assume damages for conduct not promoted by themselves, unless they placed themselves in conditions to suffer the damage. Whoever burns or sets a fire, even with authorization from the corresponding authority, cannot be exempted from liability. This is so because although the Ley de Quemas y Cercas Divisorias No. 121 of October 26, 1909, establishes the guidelines for authorizing burns on agricultural estates and establishes a series of obligations regarding whoever requests authorization, this does not break the presumption of guilt. The requirements for authorizing burns tend to ensure minimum risk. It is a precautionary measure but not an exemption from liability. Therefore, compliance with the indispensable requirements for authorization cannot prejudice the neighbors if the incident occurs. In this way, damages to the goods, crops, or the persons themselves, of the neighbors must be indemnified by whoever created the conditions of risk with the fire or burn. XI.- The activity of setting a fire or burning, in itself, is directed against Nature. It is a resource of primitive agriculture where fire tends to replace human labor. Instead of using human or mechanical means to promote agricultural activity, a destructive element is used to, on the ashes of what was destroyed, begin the cultivation of plants or the raising of animals. These types of actions are incompatible with current values. It threatens security by risking the property of adjoining landowners, their goods, and persons. It also threatens the values of environmental protection. The economic and social function of property also entails an ecological function: agriculture must develop in harmony, and not in antagonism, with Nature. For the preservation of the environment, social solidarity demands devising new mechanisms to prevent damage and threatening acts. This is the philosophy of the reform to Article 50 of the Constitución Política. The Ley de Quemas y Cercas Divisorias and the entire issue of liability derived from that activity must be analyzed along these guidelines.” (No. 38, Sala Primera de la Corte Suprema de Justicia, at 15:00 hours on April 19, 1996). It is clear, then, that the law applicable to the case is the Ley de Quemas y Cercas Divisorias, which establishes strict liability, and not the Ley Forestal, as the appellant company maintains. IX.- On the other hand, in relation to strict liability (responsabilidad objetiva), the Chamber has referred to it in the following terms: “VII.- ...'It is the result of a revision of the institute of liability that became necessary when it was realized that the mold of fault was too narrow to contain the aspirations of justice that were clamoring in an increasingly complex world. Demands of reality, the multiplication of dangers and damages typical of modern life, justified that in certain situations liability be treated as a claim of the victim that the defendant had to rebut. The theory of risk, according to which whoever exercises or benefits from an activity with elements potentially dangerous for others must also bear its inconveniences, permeated most legislations and, in the case of Costa Rica, originates paragraph V of the commentary. This theory is also called the created damage theory, whose paradigm of imputation, as stated by Professor Alterini, "... lies in attributing the damage to everyone who introduces into society a virtual element of producing it..." it, he adds, "... disregards the subjectivity of the agent, and centers the problem of reparation and its limits around material causation, investigating only which fact was, materially, the cause of the effect, to attribute it to them without further ado. The production of the harmful result is sufficient; it does not demand the configuration of an unlawful act through traditional elements..." (Alterini, Atilio. Responsabilidad Civil, Abeledo Perrot, III Ed., Buenos Aires, 1987, p. 106). Consequently, the source of the obligation, in strict liability, is not the fault, negligence, etc., of the agent. Therefore, to rebut liability, it is of no importance that the latter manages to demonstrate that they were not imprudent, negligent, or inexperienced.' (Sala Primera de la Corte Suprema de Justicia, No. 61, at 14:50 hours on June 19, 1997. On this type of liability, see the rulings of the former Sala de Casación number 97 at 16:00 hours on August 20, 1976; and of this Chamber, among others, numbers 26 at 15:10 hours on May 10, 1989; 263 at 15:30 hours on August 22, 1990; 354 at 10:00 hours on December 14, 1990; 138 at 15:05 hours on August 23, 1991; 112 at 14:15 hours on July 15, 1992; 112 at 15:30 hours on October 11, 1995; 113 at 16:00 hours on October 11, 1995; 26 at 14:00 hours on February 28, 1996; and 38 at 15:00 hours on April 19, 1996). In strict liability or liability for created risk, '... the element of fault as a criterion of imputation is dispensed with, focusing on a conduct or activity of a physical or legal subject, characterized by the setting in motion of a dangerous activity, or the mere possession of a dangerous object. The element of imputation of this liability is the created risk, or the risk-creating conduct. Therefore, it is affirmed, the notion of risk replaces the concepts of fault and unlawfulness...' (Sala Primera de la Corte Suprema de Justicia No. 376 at 14:40 hours on July 9, 1999). It starts from the hypothesis that the source of obligations is the lawful use of dangerous things, which, by the mere fact of causing damage, obligate whoever uses them to repair the damage caused. There are three elements that constitute this type of liability, namely: a) the use of things that entail danger or risk; b) causing patrimonial damage; and c) the relationship or causal nexus between the act and the damage. In summary, '...in strict civil liability, there must be a causal nexus between the risky activity set in motion by the agent and the damage caused' (Sala Primera de la Corte Suprema de Justicia, No. 354 at 10:00 hours on December 14, 1990). From a practical point of view – says the Costa Rican jurist Víctor Pérez Vargas – '...strict liability is summarized as an advantage in favor of the injured party that means a partial reversal of the burden of proof, in the sense that the latter is exonerated from the burden of proving the fault (negligence or intent) of the causer of the damage, and any attempt by the latter to prove their lack of fault would be futile...' (Pérez Vargas, Víctor, Derecho Privado, I Edition, Editorial Publitex, San José, Costa Rica, 1988, p. 417). That is, the person or company to which liability is attributed has the responsibility to demonstrate that the damages were produced by force majeure or by the fault of the victim (a doctrine that informs numerals 32, second paragraph, of Law No. 7472 and 1048, fifth paragraph, of the Código Civil).' (No. 646-f-01, Sala Primera de la Corte Suprema de Justicia, at 16:45 hours on August 22, 2001). X.- Based on the foregoing, entering fully into the heart of this matter, Article 54 of the Ley de Jurisdicción Agraria institutes the free assessment of evidence (libre valoración de la prueba) in agrarian matters. It empowers the judge to broadly assess the evidence, although they must state the reasoning for the judgment, indicating all the elements of conviction that lead them to resolve in the terms they do. In any case, the ruling must be based on a reasoned assessment according to logic, experience, and psychology. On the other hand, not only direct evidence is suitable to prove the basic fact of the norm whose application is requested. Indirect or mediate evidence proves other facts from which the former is deduced. XI.- In this matter, there is sufficient evidence, even if only indirect (through clues, clear, precise, and conclusive), to establish the strict liability of the appellant company; more specifically, the causal relationship that is questioned. Having assessed all the means of evidence together, one reaches the conviction, as the lower court judges did, that it was the burn carried out on the property of the defendant company on February 14, 2001, that was the cause of the damages on the plaintiff's farm. The first clue, although it may seem obvious and unnecessary to mention, perhaps the most important for these purposes, is constituted by the response to the thirteenth fact of the lawsuit: 'It is true that on the day of the events, a burn was conducted on the defendant's farm.' That is to say, it accepts having created the risk conditions necessary to cause the damages claimed here. The burn itself is a dangerous activity. It consists of the destruction of organic matter by means of fire, so there is no doubt about the use of things that entail danger or risk, the first element for the configuration of strict liability. Starting from this circumstance, the evidentiary activity is limited, in the first place, to demonstrating the propagation of the fire from one property to the other. The witness Nombre11058, administrator of the farm owned by the defendant, locates the place where the burn was carried out, according to the descriptive sketch on folio 500 and testimony on folio 498, a few meters from the Quebrada Caraña, which serves as a natural boundary between the aforementioned properties: '...they started the fire near where the ostrich corral is, towards the wall, to clean an area that is between the road and an area planted with Transvala grass... In that area that they wanted to clean, there was jaragua.' Gabriel Gutiérrez Peña, manager of Rancho San Diego, in his deposition also locates the burn on the boundary of the estates here involved and indicates the passage of the fire from one farm to another: 'The problem is due to a fire that started on the neighboring farm of Mr. Nombre11059. On February fourteenth, a Wednesday. We started putting out the fire between San Diego and the neighboring farm. On one side, where there is a basketball court on the neighboring farm, there was a tall area of jaragua grass that we watched so the fire wouldn't cross there because there was fire. Then we went to put it out on the other side, where we were on the day of the first judicial inspection, but the flames were already very high. That's where we saw that the fire crossed over and couldn't be put out.' (sic) The jaragua grass that was intended to be eliminated with the burn is, as the experts relate, a highly combustible material that facilitates the propagation of fire. In the judicial inspection record on folio 71, the Judge recorded regarding the state of the vegetation on the banks of the Quebrada Caraña the following: 'We observe that in approximately fifty meters, some weeds, sticks, and branches on the ground appeared burned, and parts of the land were also affected by the fire. Those remnants of the burn were scattered, it was not a continuous stretch.' The situation described suggests not only the passage of the fire across the Quebrada, but also the manner in which it occurred, that is, by means of sparks transported by the wind, just as the expert evidence suggests. That is why the 'remnants of the burn' were not arranged in a single continuous stretch, but in a dispersed form. The wind direction and its intensity on the day of the event constitute another clear and conclusive clue regarding the passage of the fire, taking into consideration the geographic position of the properties. The farm of Hyram S.A. is east of the plaintiff's estate. The deponent Gabriel Gutiérrez Peña affirmed that on the day of the events, 'The wind was very strong. The wind direction that day was from East to West. The fire also came from East to West.' For his part, the declarant Nombre11060 stated: 'Both on Wednesday and Thursday, the wind condition was strong. Those days are windy, and it was that day. I have lived here all my life. The wind direction that day was from East to West.' Such assertions have the backing of the documentary and expert evidence in the case file. The Instituto Meteorológico Nacional certified, in a document provided by the defendant itself (see folio 138), that for February 14, 2001, the wind direction was 'east' and 'northeast,' which must be technically interpreted, explains the expert Nombre11061, as the winds moving from East to West in the first case, and from Northeast to Southwest in the second (see report on folio 428). On the other hand, although the Instituto Meteorológico Nacional classified the weather conditions for February 14 and 15, 2001, as 'normal,' it very possibly referred to the typical conditions of the zone for that time of year, as the witnesses Gutiérrez Peña and Nombre11060, as already noted, mention strong winds for those days. In the months of January, February, and March, states the forestry expert, it is common for 'very strong' local winds to occur with average speeds of 10 to 30 km/hr. That is, the speeds reported by the Instituto Meteorológico Nacional for February 14, 2001, fall within the range of strong winds. The document even shows a considerable drop in wind speed for February 15, 2001. While for the 14th, the values reported in kilometers per hour between 10:00 a.m. and 1:00 p.m. were 13.1, 13.8, 13.0, 12.2, for the 15th, the data were considerably lower: 10.3, 9.1, 7.9, and 8.5. In any case, the wind speed, as the Tribunal maintains, is not the only factor that facilitated the propagation of the fire from one property to the other. The predominantly dry vegetation of the zone in the summer season, as is February, the flat topography of the land, without obstacles to impede the free flow of the wind, the low humidity due to the absence of rain, as well as the normally high temperatures at the hours when the burn was conducted, logically constitute elements that facilitated the spread of the fire. The Quebrada Caraña, on the other hand, did not constitute a natural barrier for the propagation of fire, as the trees found in it are located in its bed, which is deep, so their crowns do not represent a safe obstacle. Furthermore, in summer, no water runs through the quebrada (gully). To the above, it must be added that the defendant carried out the burn in question without observing the norms in force on the matter, without having the respective authorization, without notifying the neighbors, and at unsuitable hours. All these verified, precise, and concordant clues lead, through a logical process, to the conclusion that the burn conducted on the defendant's property was the cause of the damages to the plaintiff's assets. XII.- The appellant is therefore incorrect regarding the grievances raised. The Tribunal correctly assessed the evidence and also resolved the matter in accordance with the jurisprudential criterion of this Chamber. In the case of strict liability, fault is an element outside of consideration, in view of the activity performed by the causer of the damage, which implies the creation of a risk inherent to the exercise of the activity. Here, it does not matter if the defendant took some precautions to conduct the burn, as detailed in its appeal, but rather that it deployed a highly risky activity and thereby produced damage to the plaintiff's property, which the latter has no reason to bear. Even if they had originated from conduct authorized in accordance with the requirements of the Law, which is not the case, as the regulations in force on burns were violated in this instance, the liability would subsist. The erroneous assessment of statements made by the plaintiff in their writs, even if it had occurred, would be completely inconsequential and incapable of breaking the ruling, since, in light of the rest of the body of evidence, they would be innocuous, so their recognition in cassation would produce no practical purpose. The allegations regarding the determination of the areas actually affected by the fire and the existence of regenerated pastures, in relation to the sums to be paid and other questions regarding the remaining items, as the Tribunal rightly says, are matters proper to the execution of the judgment. XIII.- In this case, as already stated, the necessary requirements to attribute liability have been fully demonstrated: a risk- or danger-creating activity was performed by the defendant; damage was generated, the patrimonial detriments suffered by the plaintiff; and the cause-and-effect relationship between the act and the damage, because ultimately, it was demonstrated in the case file to be the product of the burn. From the foregoing, it follows that, in the examined case, it was not the plaintiff who had to prove the fault or negligence of the defendant in the production of the damage, an aspect that in any case lacks interest, according to what has been said, but rather the latter who had to demonstrate that the damage was caused by force majeure, by the victim's own fault, or by a third party. And since the truth is that it did not even attempt to do so, the alleged violation of Article 702 of the Código Civil is also inadmissible, as Corporación Monte de Piedra S.A. did not participate, in any way, in the production of the harmful event; rather, its employees and workers from neighboring farms worked tirelessly and did everything within their power to quell the fire. Consequently, its obligation to indemnify the plaintiff for the damage inflicted is indisputable."