On 30 June 2013, the Yarnell Hill Fire, in Arizona, USA claimed the lives of 19 firefighters and destroyed homes and property.   The fire was caused by lightning two days earlier.    People who lost homes and properties sued the State of Arizona alleging negligence in the fire fighting effort and a failure to protect their private property and to issue timely warnings.

The matter came before the Superior Court Of Arizona, where it was dismissed – see Arizona State Forestry Division Not Liable To Homeowners For Property Lost In The Yarnell Fire, 2013 (May 8, 2015).

On 30 March 2017, The Arizona Court of Appeals upheld the decision of the Superior Court (Gordon Acri, et al., v State of Arizona, et al. Nos. 1 CA-CV 15-0349, 1 CA-CV 15-0350 Consolidated).    Judge Cattani, speaking on behalf of the court (Cattani, Winthrop and Swann JJ) said (at [4]):

… 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.

Alleged duty claimed to arise when the state began fire fighting operations

The court said (at [9]) that a proposed duty to protect private property ‘against a natural occurrence on public land maintained in natural condition—is unworkably broad.’  A more limited duty that arose only when the State undertook fire suppression would lead to perverse results as the State could avoid that duty by simply doing nothing.

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.

The claim failed to address the fact that the forest service was a state entity. At [10] the court said:

… 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.”… 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.

This is not an unusual approach when dealing with government agencies who must take a broad overview approach to their tasks. Whether it’s monitoring oyster leases (Graham Barclay Oysters v Ryan (2002) 211 CLR 540) or allocating resources to fight a fire (Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales [2014] ACTCA 45) the state is not acting for the benefit of some individuals but the whole community and must make decisions that may not be optimal for everyone.  To owe a duty of care to those most proximate to the hazard would mean that the state could not consider and the interests of those more remote and broader interests such as the protection of the environment and cultural assets.

Alleged duty to prevent the spread of fire from state land

The plaintiffs also claimed (at [13]) that the state owed them a duty to protect them from the fire because the fire started on state land.    The fire was not started by ‘the state’ (it was started by lightning) and it started on land that was maintained in a ‘natural condition’, that is ‘the condition of land has not been changed by any act of a human being’ ([14])  The court said ([15]-[16]):

Because the Yarnell Hill Fire arose from a natural cause on land that remained unused and in natural condition, these authorities do not support imposition of a duty in this case…

Accordingly, we decline to recognize a common law duty to protect the Residents by preventing the spread of a naturally caused fire started on State land maintained in natural condition.

For a discussion on Australian law on this topic, and how it might adversely impact upon decisions to conduct hazard reduction burns, see Michael Eburn and Geoff Cary, ‘You Own the Fuel, But Who Owns the Fire?’ In Rumsewicz, M (ed) Research Forum 2016: Proceedings From The Research Forum At The Bushfire And Natural Hazards CRC And AFAC Conference Brisbane, Australia, 30 August – 1 September 2016, (BNHCRC, 2016), 145-150.

Voluntary undertaking

Under Arizona law a person can come under a legal duty to take reasonable care ‘by undertaking (with or without a formal relationship) to perform services for the plaintiff’ ([17]).  Here, however, the forest service was not fighting the fire as a service to the property owners.    The actions of the state were (at [18]):

… consistent with the state forester’s discretionary authority to provide wildfire suppression services in the interest of the state and in the interest of protecting state lands …  rather than an undertaking directed to the benefit and protection of the Residents’ property.

Abnormally dangerous activity

Alleged liability for undertaking an abnormally dangerous activity [20]-[21]_ could not succeed because even if firefighting is abnormally dangerous, it was the fire, and not the firefighting that caused the plaintiff’s losses

Duty Based on Precluding Local Firefighter Action

Finally the plaintiff’s claimed that a direction from the Arizona State Forestry Division that local firefighting assets were not to be involved in fighting the Yarnell fire ‘prevented the Residents and local firefighters from performing activities on non-state lands that might have reduced the Residents’ damages’.  The court rejected this claim as ‘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’ ([22]).  That is the action of the Forestry Division in taking control of the operations dealing with the wildfire did not limit the ability of other assets to protect properties in the township.


This is yet another case that has confirmed that fire fighting agencies are established to deal with a complex issue with competing demands.  Finding a duty to protect individuals would hamper the ability of fire fighting organisations to considering the many competing priorities and demands and to make tough operational decisions that may lead to foreseeable losses.   That sort of duty would hamper the agencies and defeat the goal of public safety by advancing a private obligation.  For a discussion on the Australian cases on this topic, see Liability for Fire – A Review Of Earlier Posts (January 8, 2016).