Anderson v. U.S.

Decision Date14 June 1995
Docket NumberNo. 93-56321,93-56321
Citation55 F.3d 1379
PartiesAllen ANDERSON; Heather Ayres; Hillary Ayres, by her guardian ad litem Karen Ayres; Karen Ayres, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Ellen Lake, Oakland, CA, and Sean Brew, Corona & Balistreri, San Diego, CA, for plaintiffs-appellants.

Mark B. Stern, U.S. Dept. of Justice, Washington, DC, Michael A. Hirst, Asst. U.S. Atty., Sacramento, CA, for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before: McKAY, * REINHARDT, and FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

Allen Anderson and others (Anderson) brought this action against the United States to recover for injuries and damages which they suffered when a controlled burn in a national forest escaped and burned their properties. The district court determined that the United States could not be held liable and granted summary judgment against Anderson. We reverse.


The United States Forest Service (USFS) and the California Department of Forestry (CDF) were engaged in a program to help prevent major forest fires by actually setting fires to chaparral in the Cleveland National Forest. 1 The fires were also set for the purpose of studying the effects of fire and rehabilitation techniques on chaparral. Both kinds of fires are called prescribed or controlled burns. In this case there is some dispute over whether the burns in question were for control or study purposes, or both, but it makes no legal difference.

On June 19, 1990, USFS and CDF employees initiated a controlled burn in furtherance of the chaparral management program. Intending to burn approximately 500 acres, the USFS, using both hand-held torches and a helicopter equipped with a torch, set fire to vegetation in the Cleveland National Forest. For the next eight days, the fire burned within its prescribed area. Some time after the eighth day, the USFS lost control of the fire. The fire escaped from the national forest and destroyed a portion of a residential neighborhood in the Bedford Canyon area, near the City of Corona, in Riverside County, California.

Anderson, who suffered damage from that fire, filed this action against the United States under the Federal Tort Claims Act. The complaint alleged that the USFS was negligent in the setting, control, and suppression of the forest fire upon its lands. Anderson sought damages of $11,500,000. The district court granted summary judgment to the United States on the theory that private persons engaged in that sort of firesetting and control activity in California would not be liable for their negligence. Thus, it reasoned, the United States was not liable either. This appeal followed.


The district court had jurisdiction pursuant to 28 U.S.C. Sec. 1346. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

We review orders granting summary judgment de novo. See Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). Whether the United States is liable under the FTCA is also reviewed de novo, as are the district court's interpretations of state law. See Doggett v. United States, 875 F.2d 684, 686 (9th Cir.1988).


The FTCA provides that the United States shall be liable for the acts or omissions of its employees "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. Sec. 1346(b); see also 28 U.S.C. Sec. 2674. The Supreme Court has held that USFS firefighters may be held liable for negligent firefighting if a private individual would be held liable for similar conduct under state law. See Rayonier Inc. v. United States, 352 U.S. 315, 321, 77 S.Ct. 374, 377, 1 L.Ed.2d 354 (1957), on remand, Arnhold v. United States, 284 F.2d 326, 329-30 (9th Cir.1960) (holding USFS firefighters liable under Washington law for negligently failing to control a fire started on federal land), cert. denied, 368 U.S. 876, 82 S.Ct. 122, 7 L.Ed.2d 76 (1961). Therefore, what we must determine is whether a private person would be held liable in California for his negligence in setting or controlling fires upon his land. The district court answered that question in the negative, but, as we will show, the answer should have been in the affirmative.

In general, the law of California declares that "[e]very one is responsible ... for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person...." Cal.Civ.Code Sec. 1714(a). That, of course, means that people are generally liable when they negligently injure others. If the language is a bit quaint, it is because that has been the law of California since at least 1872. The California courts have assiduously enforced that principle and only deviate from it when some powerful public policy dictates a contrary result. See Lipson v. Superior Court, 31 Cal.3d 362, 372-73, 182 Cal.Rptr. 629, 635-36, 644 P.2d 822 (1982).

California has not described any such public policy in the area of firesetting and fire control by private persons. On the contrary, the legislature has specifically declared that:

Any person who personally or through another wilfully, negligently, or in violation of law, sets fire to, allows fire to be set to, or allows a fire kindled or attended by him to escape to, the property of another, whether privately or publicly owned, is liable to the owner of such property for any damages to the property caused by the fire.

Cal.Health & Safety Code Sec. 13007. The legislature has also provided that:

Any person who allows any fire burning upon his property to escape to the property of another, whether privately or publicly owned, without exercising due diligence to control such fire, is liable to the owner of the property for the damages to the property caused by the fire.

Cal.Health & Safety Code Sec. 13008.

The California courts have neither deviated from nor limited the reach of those statutes. They have consistently held private persons liable for negligently setting fires and for negligently allowing fires to escape to others' properties. See People v. Southern Pac. Co., 139 Cal.App.3d 627, 633-34, 188 Cal.Rptr. 913, 916-17 (1983) (railroad was responsible for the damages caused when fire spread from its right-of-way to other property, even if it did not negligently set the fire); Gould v. Madonna, 5 Cal.App.3d 404, 406, 85 Cal.Rptr. 457, 458 (1970) (a private contractor who negligently maintained fires set for clearing sections of a United States highway on which he was working was liable for damages caused when the fire escaped and burned the plaintiff's land); People v. Zegras, 29 Cal.2d 67, 172 P.2d 883 (1946) (court notes that private individuals must reimburse CDF for expenses incurred in extinguishing negligently set fire that spread to other properties).

The acquisition of permits to conduct a controlled burn is not sufficient to shield the landowner from liability, even if a fire official is on hand to assist. In that regard, Leuteneker v. Fisher, 155 Cal.App.2d 33, 317 P.2d 143 (1957), is instructive. There the landowner obtained a permit for a controlled burn, and an "assistant ranger of the [California] Division of Forestry was present during the burn and took charge of the setting and control of the fires." Id. at 35, 317 P.2d at 144. The court said While a person conducting a controlled burn should ordinarily follow the directions of the state ranger, it is, nevertheless, within his power not to proceed if the precautions taken by the state ranger are inadequate and in that event he should discontinue the burning. He is not required to surrender to the state ranger's judgment for, as stated in Wood & Iverson, Inc. v. Northwest Lbr. Co., by the Supreme Court of the State of Washington, 138 Wash. 203 [244 P. 712, 714 (1926) ]:

"It is a mistake to say he is compelled in such a case to surrender entirely to the forester's judgment. While he is possibly required to follow the directions given by the forester, clearly it is always within his power to refuse to proceed if he thinks the forester's precautions inadequate, and within his power to take precautions in addition to those prescribed by the forester. In other words, if an owner undertakes to abate the nuisance of this sort by burning under the direction of the forester, he is an actor in the proceedings; a joint actor with the forester it may be, but liable, nevertheless, for any loss caused to a third person by a negligent performing of the burning."

Id. at 35-36, 317 P.2d at 144; see also Richter v. Larabee, 136 Cal.App. 16, 22, 27 P.2d 954, 956 (1933). The government argues that Leuteneker and other cases are not apposite because they involve burns for private purposes only. It is true that in Leuteneker the court, in a dictum, mentioned that the fire was for private rather than public purposes, but we think that is a distinction without a difference. Nothing turned on that, and it can hardly be doubted that controlled burns on private land can (and regularly do) serve a public, as well as a private, purpose. See, e.g., Cal.Pub.Res.Code Sec. 4491. 2 All of this points ineluctably to the conclusion that a private person in the position of the USFS would be liable for the negligently setting and controlling of the fire alleged in Anderson's complaint. Thus, the government must also be liable.

The government pushes all of this aside and argues that, even so, private persons are not liable in California when they set or fight controlled burn fires on their own lands because their actions are so much like those of public agencies that they ought to have public agency immunity. That...

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