ACRI v. State of Arizona, 761 Ariz. Adv. Rep. 18 (App. Div. I, March 30, 2017) (J. Cattani)

STATE FORESTRY DEPARTMENT HAS NO DUTY TO PROTECT PRIVATE PROPERTY WHEN FIGHTING WILDFIRE 

On June 30, 2013 a lightning caused wildfire burned out of control killing 19 firefighters and damaging private property in the Yarnell area of Arizona. Residents of Yarnell sued the state alleging the forestry division negligently fought the fire resulting in damage to their property.  The trial court granted defendant's motion to dismiss for failure to state a claim under Rule 26(b)(3) of the Arizona Rules of Civil Procedure and the Arizona Court of Appeals affirmed finding the state did not owe the plaintiffs a duty to protect their property in fighting a wild fire.

A tort duty may arise by law, be it statutory, regulatory or common law, by virtue of the relationship between the parties or by virtue of public policy.

Here plaintiffs argued public policy required the state to use reasonable care to protect their property in fighting the Yarnell fire. To the contrary, the court of appeals held public policy mandated that there be no such duty.

Here, the governing statute expressly guides the  state forester's discretion to provide wildfire suppression services, absent a governing cooperative agreement, by reference to "the best interests of this state" and whether such services "are immediately necessary to protect state lands." Ariz. Rev. Stat. ("A.R.S.") §37-1303(A). So while the statute creates a duty on the forestry division to protect state lands it does not create such a duty to protect private property. 

The parties agree that prevention or suppression of wildfires--like the emergency response to any natural disaster--is a fundamental public safety obligation, and that public policy should encourage a prompt and efficacious response from the State. But imposing a tort duty based on the State's undertaking to provide an emergency response could instead encourage inaction: the State could shield itself from liability by simply doing nothing. Such a result is contrary to the overriding needs of the public.

Plaintiffs then argued that the state as a possessor of land owed them a duty but the court found instead that Arizona has adopted the Restatement (Second) of Torts ("Restatement") §363 (1965), which provides that a possessor of land is not liable "for physical harm caused to others outside of the land by a natural condition of the land." A naturally caused fire on open forest land is a natural condition.

Next the plaintiffs argued that when the state voluntarily undertook to fight the fire it assumed a duty of reasonable care. Restatement §323. As to fighting the fire there was no proof the state undertook to protect the residents property in the way it fought the fire. Rather it was fighting the fire pursuant to its broader duty to protect state land under the statute.  Additionally to the extent it was alleged the state waited too long to call for an evacuation, the court found that if such a duty existed it would not exist until the undertaking commenced.  Hence, if the state was negligent in delaying to call for an evacuation, that negligence occurred before it assumed such a duty by actually calling for the evacuation. Hence the duty did not exist at the time of the alleged negligence.

The plaintiffs then argued that the state's duty arose out conducting an abnormally dangerous activity.  Restatement §§519, 520 (1977). This argument failed because what was abnormally dangerous was a wildfire created by lightning, not the firefighters' manner of fighting that fire.

Lastly, plaintiffs argued the state assumed a duty of control when it instructed local firefighting agencies not to combat the fire. This it was claimed prevented the residents and local firefighters from performing activities on non-state lands that might have reduced the residents' damages.  “But a directive not to do anything to ‘combat the Yarnell Hill Fire' is not the same as a directive not to use local efforts to protect property within Yarnell.”