Acri v. State, s. 1 CA–CV 15–0349

Decision Date30 March 2017
Docket NumberNos. 1 CA–CV 15–0349,1 CA–CV 15–0350,s. 1 CA–CV 15–0349
Parties Gordon ACRI, et al., Plaintiffs/Appellants, v. STATE of Arizona, et al., Defendants/Appellees. Chuck Overmyer and Nina Bill Overmyer, both as individuals and as representatives of a class consisting of all of the residents of Yarnell, Glen Ilah, Peeples Valley, and the surrounding geographical area who suffered damages as a result of the Yarnell Hill Fire, Plaintiffs/Appellants, v. State of Arizona, a public entity; and the Arizona State Forestry Division, a public entity, Defendants/Appellees.
CourtArizona Court of Appeals

Knapp & Roberts, PC, Scottsdale, By Craig A. Knapp, Dana R. Roberts, David L. Abney, Counsel for Plaintiffs/Appellants

Arizona Attorney General's Office, Phoenix, By Brock J. Heathcotte, Daniel P. Schaack, Stinson Leonard Street, LLP, Phoenix, By Michael L. Parrish, Brandon R. Nagy, CoCounsel for Defendants/Appellees

Presiding Judge Kent E. Cattani delivered the opinion of the Court, in which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined.



¶ 1 Residents of Yarnell and surrounding areas (the "Residents") appeal from the superior court's ruling dismissing their negligence claims against the State of Arizona and the Arizona State Forestry Division (collectively, "State") arising from damage caused by the Yarnell Hill Fire. Because the superior court correctly concluded that the State did not owe a duty to protect the Residents' property against naturally caused wildfires, we affirm.


¶ 2 On the afternoon of June 30, 2013, the Yarnell Hill Fire burned out of control, killing 19 local firefighters and destroying structures and property throughout Yarnell. Lightning had sparked the wildfire two days earlier in mountainous wildlands near Yarnell, and the State, acting through the Forestry Division, was in charge of the firefighting efforts for the first three days, including when it hit Yarnell. This case arises only from the property damage caused by the fire; the tragic loss of life is not at issue here.

¶ 3 The Residents asserted civil claims against the State, alleging that the State had negligently managed the firefighting efforts, negligently failed to protect Yarnell from the fire, and negligently failed to provide a timely evacuation notice, all leading to the destruction of their property.1 On the State's motion, the superior court dismissed the complaints on the basis that the State did not owe the Residents a duty as required to state a cause of action for negligence. The Residents appealed, and we now affirm.2

¶ 4 We hold that the State did not owe the Residents a legal duty in connection with its efforts to combat a wildland fire resulting from a natural occurrence on public land in natural condition. To hold otherwise would effectively require the State to act as an insurer against naturally-occurring calamities affecting private property throughout the state. And imposing such a duty (with its corresponding potential for liability) based on the State's undertaking to coordinate wildland firefighting would create a self-defeating incentive not to engage in such important efforts. Thus, the Residents' claims fail as a matter of law.


¶ 5 Dismissal under Arizona Rule of Civil Procedure 12(b)(6) for failure to state a claim is proper "only if ‘as a matter of law [ ] plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof.’ " Coleman v. City of Mesa , 230 Ariz. 352, 356, ¶ 8, 284 P.3d 863 (2012) (citation omitted and alteration in original). We consider only the pleading itself, and we "assume the truth of all well-pleaded factual allegations and indulge all reasonable inferences from those facts, but mere conclusory statements are insufficient." Id. at ¶ 9. We review de novo the superior court's dismissal for failure to state a claim on which relief can be granted. Id. at 355, ¶ 7, 284 P.3d 863.

¶ 6 A negligence claim requires proof of four elements: "(1) a duty requiring the defendant to conform to a certain standard of care," (2) breach of that standard of care, (3) causation, and (4) actual damages. Gipson v. Kasey , 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228 (2007). The existence of a duty is a threshold question; "absent some duty, an action for negligence cannot be maintained." Id. at ¶ 11. This threshold question of whether a duty exists is a question of law for the court, which we consider de novo. Guerra v. State , 237 Ariz. 183, 185, ¶ 7, 348 P.3d 423 (2015).

¶ 7 A duty is an "obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm." Markowitz v. Arizona Parks Bd. , 146 Ariz. 352, 354, 706 P.2d 364 (1985). A duty may arise from a variety of sources, including a special relationship between the parties—whether contractual, familial, or based on "conduct undertaken by the defendant"—or as an expression of public policy. Gipson , 214 Ariz. at 145, ¶¶ 18, 22–23, 150 P.3d 228.

I. Public Policy.

¶ 8 The Residents argue that "sound public policy imposed a duty of care on the State to protect Yarnell and its people." We recognize that public policy considerations may support recognition of a duty. Id. at ¶ 23. But public policy may also militate against recognition of a tort duty, Guerra , 237 Ariz. at 187, ¶ 20, 348 P.3d 423, and it does so here.

¶ 9 The duty the Residents seek to impose—protecting private property against a natural occurrence on public land maintained in natural condition—is unworkably broad. And the limitation the Residents propose—that the State only assumed a duty by in fact attempting to suppress the fire—would lead to perverse incentives. See Gipson , 214 Ariz. at 146, ¶ 29, 150 P.3d 228 (noting that "no-duty" rules are generally based on concerns that imposing liability would have adverse effects). 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.

¶ 10 Moreover, the duty advanced by the Residents would prioritize nearby private property interests at the expense of consideration of broader state interests. And 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) (formerly A.R.S. § 37–623(A) ) (emphasis added);3 see also Monroe v. Basis Sch., Inc. , 234 Ariz. 155, 160, ¶ 17, 318 P.3d 871 (App. 2014) (noting that a public-policy-based duty of care is generally grounded in statute or the common law, and "[i]n many instances, the legislature reflects public policy by codifying certain duties and obligations"). Imposing a duty of care beyond the legislative directive would impermissibly replace the State's discretion to consider the complex mix of risks and considerations presented by a wildfire with a mandate to prioritize the interests of individuals whose property might immediately be threatened.

¶ 11 The Residents urge us to adopt the Alaska Supreme Court's now-abrogated holding that "when the State or a subdivision of the State chooses to conduct firefighting operations, it owes a duty of care to those whose lives and property are threatened by the fire to conduct those operations non-negligently." Angnabooguk v. State , 26 P.3d 447, 452 (Alaska 2001). The Alaska legislature, however, thereafter adopted legislation overriding the Angnabooguk holding except as to "intentional misconduct within the course and scope of employment or agency and with complete disregard for the safety and property of others." Brewer v. State , 341 P.3d 1107, 1119 (Alaska 2014) (quoting Alaska Stat. Ann. 41.15.045(a) ). And the Alaska legislature's statements in doing so are apropos: "[d]ecisions regarding forest management related to fire control and suppression should be prompted by sound forestry and firefighting principles, rather than concerns regarding possible tort liability." Id. (alteration in original) (quoting the transmittal letter and sponsor statement for H.B. 245, 23rd Leg., 1st Sess. (Alaska 2003), as found in 2003 House Journal 782–83).

¶ 12 This is not to suggest that the state forester should ignore the fire's potential impact on nearby properties and communities as part of the statutorily-directed assessment of what wildfire suppression services are in the best interests of the state. See A.R.S. § 37–1303(A). Certainly there was a hoped-for benefit to the Residents here as the result of the State's work to contain the fire. But a hoped-for benefit that may arise incidental to broader public-safety concerns and the best interests of the state does not establish a duty. See Vasquez v. State , 220 Ariz. 304, 315, ¶ 35, 206 P.3d 753 (App. 2008) (holding that, because primary purpose of identifying human remains was public safety, incidental benefit to family and friends did not establish a duty to identify); Morton v. Maricopa County , 177 Ariz. 147, 151, 865 P.2d 808 (App. 1993) (same).

II. Possessor of Land.

¶ 13 Our conclusion that public policy supports a no-duty rule for the State's control of a natural occurrence on public land maintained in natural condition is consistent with Arizona law regarding the parallel issue of duties owed by a possessor of land. The Residents assert that, as the owner or occupier of the land on which the fire started, the...

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