EXCLUSIVE: The State has no duty to protect your property against naturally occurring fires

By David McDowell | Partner and Director of Rose Law Group Litigation Department

In a pair of cases brought by property owners who suffered property damage stemming from the 2013 Yarnell Hill fire, Division One of the Arizona Court of Appeals, held the state does not owe property owners a duty to protect their property against a naturally caused fire. 

 The Yarnell Hill fire began on June 28, 2013 after a lightening strike on BLM land. Drought, high temperatures, and strong winds caused the fire to consume more than 8,300 acres within three days. By the time the fire was extinguished it had burned more than 8,400 acres, destroyed 129 buildings, and killed 19 firefighters.  The affected property owners sued the State and the State Department of Forestry alleging the state owed them a duty to protect their property because the state maintained the property in its natural condition and undertook to suppress the fire.

The court rejected the arguments of the property owners on several grounds. The court stated that the suppression of wildfires is a fundamental public safety obligation and that public policy should encourage a prompt and efficacious response from the State. The argument advanced by the property owners, i.e. the state owed a duty because it undertook to suppress the fire, in the opinion of the court, created a perverse motivation for the state to do nothing to avoid having any liability, which is clearly contrary to the overriding needs of the public. Further, adopting the property owner’s arguments would place the interests of private property owners above the interests of the State. Specifically, the State’s statutory discretion to consider the complex mix of risks and considerations presented by a wildfire would be supplanted by a mandate to prioritize the interests of individuals whose property might immediately be threatened. Addressing the argument that the state voluntarily assumed a duty to the property owner by voluntarily rendering services to them by fire suppression, the court held that the state’s actions were 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 property owners.

This decision does not reflect a shift or departure from recognized Arizona case law on liability for loss caused by negligence. But this case does clarify the state’s duties in an area of increasing concern to property owners adjacent to drought-parched natural lands. This case addressed a naturally occurring fire on public land within the discretion of the state forestry department under Arizona statute, the holding will not apply to fires set on private property. The facts of each case are critical to its outcome and this summary should not be interpreted as how a court would decide your case. Property owners should check their insurance policies to determine whether they have coverage for fire loss including fire loss caused by wildfire.