People in the wildland fire community will be familiar with the Yarnell Hill Fire of 2013. This fire occurred in 2013 and led to the death of 19 firefighters, all members of the Granite Mountain Hotshots team. Only one member of the team survived. Apart from this tragedy a number of homes were lost to the fire and homeowners sued the Arizona State Forestry Division (ASFD) claiming that the Division ‘negligently failed to protect them from harm that resulted from the Fire’.
I’ve made the comment before that in Australia we think everyone sues in America, and what’s more, every plaintiff wins. I’ve previously drawn attention to cases where plaintiffs have not been successful (see US city not liable for failure to rescue (February 13, 2013) and What if you rang 911 and no-one came? (March 10, 2015)) and that is the result, so far, in this case.
On 28 April, Judge Gama of the Superior Court Of Arizona, Maricopa County dismissed the plaintiff’s claims on grounds that will be familiar to Australian lawyers and readers of this blog. (You can read His Honours reasons for judgment here).
The first issue was whether it was possible to sue the Arizona State Forestry Division. Judge Gama found that it was not, that is the Forestry Division was a ‘nonjural entity’. The Judge agreed with that submission holding that ‘a governmental entity may sue or be sued “only if the legislature has so provided”’ (p 2). As the legislature had not ‘so provided’ the Forestry Division could not be sued. That is not as dramatic as it sounds and the position is the same in Australia (though we may not use the term ‘jural’ or ‘nonjural entity’). Some legislation will say that a government authority is an entity capable of being sued in its own name; others do not. Where it does not then the appropriate defendant is the state and we’ve seen that with, for example, litigation from the Canberra fires where the defendant was the State of NSW, not the NSW Rural Fire Service. The finding that the ASFD could not be sued was not really the issue; that just directed focus on whether or not the State of Arizona, rather than the Forestry Division was negligent.
Judge Gama found that there had been no negligence. His ruling was based on the law of negligence and given the common legal history of England, the US and Australia the law is not very different. As His Honour said (at p 2):
To establish a claim for negligence, a plaintiff must prove (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach of that standard of care by the defendant; (3) a causal connection between the defendant’s conduct and the injury; and (4) actual damages.
The critical issue was whether the state, when fighting the fire, owed a legal duty to take care to protect the homeowners. As has been noted on this blog, the English courts and the Australian courts have all ruled that a fire service that is established to act in the public good does not owe a duty of care to individuals even those at direct risk from the fire (see Capital and Counties v Hampshire Council  QB 2004; Warragamba Winery v NSW  NSWSC 701; Electro Optics and West v NSW  ACTSC 184; Myer Stores v State Fire Commissioner (Tasmania)  TASSC 54; Hamcor Pty Ltd v State of Qld  QSC 224 and Stuart v Kirkland-Veenstra  HCA 15 (with respect to police).)
No duty of care
Judge Gama, quoting the Restatement (2d) of Torts § 323 (1965), said that a duty could arise if the defendant, Arizona, had voluntarily undertaken to protect the plaintiffs. Where a defendant agrees to render services to another, intended to protect that other from harm, there can be liability if the defendant increases the risk of harm or the injured person has relied upon the defendant to protect them.
In this case the state of Arizona, when it commenced fighting the fire on state land it was acting to protect its own land, not as a service to the homeowners that might have been, and were, affected if and when the fire escaped their control efforts.
His Honour also found that the homeowners did not rely on the state to protect them. According to Judge Gama (p 4) the ‘Plaintiffs urge that they could have taken “special emergency measures” (e.g., trimming vegetation, hosing down buildings and vehicles)’ but they did not. They did not claim that they relied on the state to do those tasks for them, but they relied on the state to effectively fight the fire. His Honour dismissed this claim saying ‘Clearly, remedial fire prevention acts are not alternatives for the act undertaken by the State’. In essence it was not open, or reasonable, for the plaintiffs to say ‘we didn’t have to do anything to protect ourselves when we could have taken simple measures, because we expected the fire service to stop the fire before it got here’. I suspect that aspect of the ruling would be encouraging for those actively encouraging home owners in Australia to develop their own fire plan and develop their own resilience.
The plaintiffs also alleged negligence because they relied upon the State to give notice to evacuate. This case failed as they could not point to any ‘undertaking’ by the state to deliver an evacuation warning nor could they point to any law that would impose a legal duty upon the state to do so.
His Honour did not address whether or not any action by the defendant increased the risk to the plaintiffs so one has to infer that the plaintiffs made no allegation to that effect.
The plaintiffs’ argued that as a matter of public policy the court should find that there was a duty owed to those in the path of the fire. Judge Gama thought ‘public policy’ went the other way. He said (p 5, reference omitted):
The Court is persuaded that public policy does not support imposition of a duty on the State to protect Plaintiffs’ property from wildfires … “The decisions of how to properly fight a particular fire, how to rescue victims in a fire, or what and how much equipment to send to a fire, are discretionary judgmental decisions which are inherent in this public safety function of fire protection.”
And being ‘discretionary judgmental decisions’ for the executive arm of government, they are not subject to review or second-guessing by the judicial arm.
‘Abnormally dangerous doctrine’
The plaintiffs relied on this doctrine. As an Australian lawyer I’m not quite sure what this is but I would infer that it’s like the old rule described here as ‘the rule in Rylands v Fletcher’ (referring to Rylands v Fletcher (1868) LR 3 HL 330). That rule imposed strict liability (that is liability without proof of negligence) if a defendant brought something dangerous onto his or her land and it escaped. I would infer that the ‘abnormally dangerous doctrine’ says that if you are engaged in some abnormally dangerous activity you are liable for any harm caused, regardless of the care taken to avoid that harm. Following the decision in Burnie Port Authority v General Jones (1994) 179 CLR 520, which said that the rule in Rylands v Fletcher is no longer law in Australia, that doctrine probably does not apply here, if it ever did.
Regardless of the doctrine’s application in Australia, Judge Gama ruled it had no application in this case as the defendant was not engaged in an abnormally dangerous activity. The state was engaged in the activity of firefighting and it was the fire that caused the damage to the plaintiffs so even if firefighting is an abnormally dangerous activity, it is not what caused the plaintiffs’ losses and the doctrine could have no application.
The conclusion was that the home owners’ claims were dismissed. The plaintiffs have filed an appeal to the Arizona Court of Appeals so the matter is not yet over. Given the interest that the wildfire community has in this fire and its legal consequences, this is a case that will be watched with interest.