Helotes Mulch Fire
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Sometime on Christmas night, a pile of debris, bigger than a football field and approximately 80 feet tall, erupted into flames on property owned by the H.L. Zumwalt Construction Company. Since then, the surrounding neighbors have been forced to breathe air contaminated with soot, ash and smoke which are causing damages that continue to mount to this day.
Currently, efforts are under way to extinguish the fire. As many of you know, there have been considerable legal and political battles over how to extinguish this fire. Fortunately however, it finally appears as though the fire will be extinguished by the first week of March. This is being accomplished with oversight by the TCEQ by pulling the pile apart and submerging it in a clay lined pit, while the area water wells are being closely monitored so that water quality is not compromised.
Since the end is in site with regards to the fire itself, many people are beginning to ask two very important questions. First how do we prevent this from happening again and second, how do we recover for the injuries and damages we have or will suffer as a result of this fire? The answer to both of those questions can be addressed by taking part in a civil lawsuit.
The lawyers of Mestemaker & Straub have filed a lawsuit that seeks relief in two areas. First, the lawsuit requests the court to issue a permanent injunction which would prevent that piece of property from being used as a dump pile/brush pile/mulch pile, or a place for combustible material to be accumulated and stored. Second, the case requests relief in the form of monetary damages to compensate those that were economically impacted by this event.
Texas law allows property owners the right to use and enjoy their property. In fact, as a landowner you have the right to use your property as you see fit as long as your activity is lawful. However, when the use and enjoyment of your property prevents those around you from using and enjoying theirs, you are liable to those neighbors for that “nuisance” and the damages arising there from. In other words, you can’t conduct business on your property that forces those in your neighborhood to pack up and leave or live a miserable existence because of your conduct – lawful or not.
While many realize the “nuisance” aspect of damages in this case, we often get questions as to what types of damages are actually compensable. The short answer is anything that reasonably flows from this fire and nuisance is compensable.
Though it varies with the direction of the wind, all of the residents around the burning pile have gotten their fair share of smoke at one time or another. This smoke has caused many to evacuate their home in search of fresh air – especially those with pre-existing respiratory problems.
This evacuation has caused some to incur expenses such as hotel bills, bills for eating out, as well as expenses such as medical bills for themselves and their children, medications for the problems caused by the irritants both prescription and over the counter drugs and kenneling charges for those with pets (not to mention the long-term health effects that are yet unknown). Those that have decided to stay in their homes have also incurred medical costs, costs associated with air purification devices and air filters, and additional expenses of cleaning pools and other outside items like vehicles and yard furniture.
As if the expenses incurred thus far were not enough, the amount is certain to grow once the fire is put out. Most of the residents living in the area will be burdened with additional costs once the fire is extinguished. As anyone will tell you, the majority of the damage caused by any fire is created by the smoke and not necessarily the fire. Unlike a fire that is quickly extinguished, your home and your furnishings will have had over two months to absorb the odors from this fire. After the fire is extinguished, most homeowners will realize that the odor of smoke did not leave with the fire. Those that choose not to live in a home that smells like a campfire will be forced to incur additional expenses as a result of this fire and the problems created thereby.
Homeowners will be required to have professional cleaning done in order to have the smoke, soot and ash removed from carpets, rugs, furniture, clothing (even that which has not been worn), drapes, air conditioning duct work, and other items in their home that have absorbed the smoke over the last 50 or more days. Some of the homes closer to the fire may have more serious damage to these items that requires replacement instead of professional cleaning. In addition, these closer homes may also require interior painting to be done to cover up the smoke that has been absorbed into wall coverings or painted walls.
The soot and ash can also cause considerable damages to the exterior of the home and property outside. Once the smoke clears, many will realize that the soot and ash may have stained the exterior of their home, which requires deep cleaning or power washing. The air contaminants can also cause damage to automotive finishes and other items that are left outside.
While these are not a complete list of damages suffered, it is an accurate overview of the types of damages that flow from this type of event. We know because we have represented clients in similar events, including mulch pile fires. If you would like to join in a lawsuit that seeks compensation for your damages as well as seeks to have an injunction placed on the property barring the conduct that gave rise to this event, we would encourage you to hire us.
We have already filed this lawsuit and welcome anyone joining who has suffered or is likely to suffer damages. If you have not been impacted by this fire other than the inconvenience, we ask that you do not join this lawsuit. If you have questions about your damages or about this lawsuit, please do not hesitate to contact Donald Cahilly or one of the other attorneys at Mestemaker and Straub. We will be happy to answer any questions you may have with regards to this issue.
We are currently planning an informational meeting regarding this matter for Thursday, February 15, 2007, 6:00 p.m. at the VFW building in Helotes. At this meeting, you will have an opportunity to ask questions of the attorneys as well as join in the lawsuit discussed above. There is no fee for attending this meeting.