Concept

Reckless Burning

Arson

Reckless Burning

Arson under § 220.1(1) requires a purpose directed at a particular object, either the destruction of a structure of another or the collection of insurance, so a fire set for any other reason falls outside it. Subsection (2) covers part of the gap that leaves. A person commits a felony of the third degree by purposely starting a fire or causing an explosion, whether on the actor's own property or another's, and thereby recklessly creating one of the dangers the subsection goes on to name.¹ The lead-in therefore describes a fire-setter whose objective may be entirely innocent, such as clearing brush or burning trash, but who sets the fire in circumstances that put people or other people's buildings at risk.

The offense carries two different mental states, and each attaches to a different thing. Purpose attaches to the act of starting the fire or causing the explosion, so the actor must mean to light the fire or set off the blast. Recklessness attaches to the resulting danger, so the actor must be aware of a substantial risk of that danger and consciously disregard it. Each half does its own work. The purpose requirement keeps accidental fires out of the subsection, because a blaze begun by a dropped match is not a fire the actor purposely started. The recklessness requirement keeps the offense from becoming one of strict liability, since without it anyone who deliberately lit a fire would answer for any danger it later produced, whether or not the actor saw that danger coming. The grade follows from the same split: the offense is a third-degree felony because the actor did not aim at the harm and is culpable only for disregarding the risk of it.²

The words "whether on his own property or another's" also set this offense apart from the structure clause of arson. Title to the place where the fire is lit is irrelevant, because a fire does not stop at a property line, and the owner of an open field can endanger a neighbor as readily as a stranger can.³

Hypothetical Illustration

A landowner burns a pile of brush in a dry field with the purpose of clearing it. A strong wind is carrying sparks toward the neighbor's barn, the landowner sees them, and the fire keeps burning. The landowner purposely started the fire and consciously disregarded a risk to the neighbor's barn, which is the combination subsection (2) punishes. The landowner had no purpose to destroy anything, so arson under § 220.1(1)(a) is unavailable, but reckless burning is not.

Change the conditions and the offense disappears. If the same brush is burned on a still day in a plowed field far from any building, with a water truck standing by, no danger is created and no risk is consciously disregarded. If instead a passerby flicks a cigarette into the field and the brush ignites, the danger to the barn may be identical, but no one purposely started the fire, so the lead-in is not met. Other provisions, such as the failure to control a fire, may still reach that second scenario.

The brush fire is the same in the first two scenes, and the answer moves only with the danger the actor created and disregarded. The cigarette scene changes a different variable, whether the actor started the fire on purpose. An exam stem that describes a fire spreading to a neighbor invites two opposite mistakes, and the first is to hunt for a purpose to destroy the neighbor's property when purpose attaches only to starting the fire. The second mistake is to treat any fire that causes danger as reckless burning, which ignores both the purposeful lighting and the conscious disregard that the offense requires.

The two dangers that complete the sentence in the lead-in are danger to persons and danger to buildings. They are taken up in turn, beginning with danger to persons.

Danger to Persons

The first danger named in § 220.1(2) is the one that threatens a human being. Paragraph (a) applies when the fire or explosion the actor purposely set "places another person in danger of death or bodily injury."⁵ Read with the lead-in, the offense has three parts: the actor purposely starts a fire or causes an explosion, the fire places a person other than the actor in danger of death or bodily injury, and the actor recklessly creates that danger. The text asks about danger, so the offense is complete once a person is put at risk, and it does not wait for anyone to be hurt. It also requires no building, because the fire may burn on open land and the only question is whether a person stood in its path.

The two mental states divide here exactly as they do in the lead-in. Purpose attaches to starting the fire or causing the explosion, which keeps accidental fires outside the prong. Recklessness attaches to the danger, so the actor must be aware of a substantial risk that a person will be endangered and consciously disregard it. The actor need not want anyone hurt and need not want anything destroyed, because the prong is written for the fire-setter whose objective may be as ordinary as clearing brush. The reason for the grade is that risking a person's life or body through a deliberately set fire is the most serious danger fire presents, which justifies a felony even when the actor never aimed at a building or a victim.

Hypothetical Illustration

A defendant deliberately lights a large fire in a backyard on a windy day while a neighbor stands nearby. The defendant sees the sparks drifting toward the neighbor and lets the fire burn. Purpose attaches to lighting the fire, and the defendant consciously disregarded a substantial risk of bodily injury to a person, so paragraph (a) is met.

Change one fact. The defendant lights the same fire in a remote open field where no person is anywhere near. No person is placed in danger, so paragraph (a) is not met, however deliberate the fire.

Change a different fact. The defendant lights the backyard fire after looking around and seeing no one, and a neighbor then steps through a gap in the hedge without the defendant noticing. The neighbor is in danger, but the defendant never perceived the risk, so the recklessness the subsection requires is missing.

The first two scenes hold the fire and the purpose constant and move only with the presence of a person in danger. The third scene holds the danger constant and moves with the actor's awareness of it. On an exam stem the usual mistake is looking for an intent to hurt anyone, or an intent to burn a structure, when the prong asks only whether the actor purposely lit the fire and recklessly put a person in its way. The reverse mistake is to treat any fire near a person as enough, since a fire the actor did not purposely start, or a danger the actor never perceived, falls outside the prong. Danger to a neighbor's building, as opposed to a person, is the separate prong taken up next.

Danger to Buildings

The second danger named in § 220.1(2) shifts attention from people to property. Paragraph (b) applies when the fire or explosion the actor purposely set "places a building or occupied structure of another in danger of damage or destruction."⁷ Joined to the lead-in, the offense has three parts: the actor purposely starts a fire or causes an explosion, the fire places a building or occupied structure of another in danger of damage or destruction, and the actor recklessly creates that danger. Because the text speaks of danger of damage, the offense is complete once the structure is put at risk, and the structure need not burn. The reason is practical. Once a fire is burning beside a structure, whether it spreads depends on wind, fuel, and how quickly anyone reaches it, and the actor controls none of those after the match is struck. If liability waited for actual damage, a person who recklessly lit a fire next to a neighbor's barn would be guilty only when the weather turned against the neighbor. The prong therefore attaches to the risk the actor created, which threatens the owner's property and any occupants whether or not a flame ever touches the building.

The definitions in § 220.1(4) give the two key phrases their content. An occupied structure is any structure, vehicle, or place adapted for overnight accommodation of persons or for carrying on business there, and it counts whether or not a person is actually present.⁸ The test looks at what the structure is adapted for, so a locked shop at midnight qualifies as readily as a house with the family at the table. Property is that of another if anyone other than the actor has a possessory or proprietary interest in it, so the inquiry follows interests and not bare title.⁹ A building in which a tenant holds a possessory interest is therefore a building of another even as to the landlord who owns it, and when a structure is divided into separately occupied units, any unit the actor does not occupy is an occupied structure of another.¹⁰ The limitation to property of another marks where this prong stops: a fire that endangers only a structure in which the actor alone holds an interest threatens no one else's property and falls outside paragraph (b).

Paragraph (b) mirrors paragraph (a) in everything except the object of the danger. Both prongs sit under the same lead-in, so both require that the actor purposely start the fire or cause the explosion and recklessly create the danger, with purpose attaching to the fire and recklessness attaching to the danger. Paragraph (a) asks whether a person was put in danger and needs no building. Paragraph (b) asks whether a building or occupied structure of another was put in danger and needs no person. A single fire can satisfy both, as when sparks threaten an occupied neighbor's house and the people inside, and the prosecution may rely on whichever danger the evidence supports.

Hypothetical Illustration

A defendant deliberately burns a brush pile on his own land, right beside a neighbor's barn. The defendant sees sparks landing on the barn's dry siding and lets the fire burn. Purpose attaches to lighting the fire, the barn is a building of another, and the defendant consciously disregarded the risk to it, so paragraph (b) is met even if the barn never ignites.

Change the location. The defendant burns a small, contained fire in a stone pit far from any structure. No building of another is placed in danger, so paragraph (b) is not met, however deliberate the fire.

Change the owner. The defendant burns the same brush pile beside a barn that the defendant alone owns and uses, and no one else holds any interest in it. The barn is in danger, but it is not a building of another, so paragraph (b) is not met, although paragraph (a) would apply if a person were endangered.

The first two scenes hold the purposeful fire constant and move only with the presence of a building of another in the fire's path. The third scene holds the danger constant and moves with whose interest the endangered building carries. On an exam stem, the first question is whose structure lies in the path of the fire, and the trap is assuming danger to the actor's own building is enough, when the paragraph requires that someone other than the actor hold a possessory or proprietary interest. The opposite error is to add elements the paragraph does not contain, such as requiring that the building actually burn, that a person be inside at the time, or that the actor wanted the building destroyed. A stem that shows a purpose to destroy the neighbor's building points toward arson, and reckless burning is the fallback when that purpose is missing but the actor lit the fire and consciously disregarded the danger to the structure.