No duty of care
Judge Gama, quoting the Restatement (2d) of Torts § 323 (1965), said that a duty could arise if the defendant, Arizona, had voluntarily undertaken to protect the plaintiffs. Where a defendant agrees to render services to another, intended to protect that other from harm, there can be liability if the defendant increases the risk of harm or the injured person has relied upon the defendant to protect them.
In this case the state of Arizona, when it commenced fighting the fire on state land it was acting to protect its own land, not as a service to the homeowners that might have been, and were, affected if and when the fire escaped their control efforts.
His Honour also found that the homeowners did not rely on the state to protect them. According to Judge Gama (p 4) the ‘Plaintiffs urge that they could have taken “special emergency measures” (e.g., trimming vegetation, hosing down buildings and vehicles)’ but they did not. They did not claim that they relied on the state to do those tasks for them, but they relied on the state to effectively fight the fire. His Honour dismissed this claim saying ‘Clearly, remedial fire prevention acts are not alternatives for the act undertaken by the State’. In essence it was not open, or reasonable, for the plaintiffs to say ‘we didn’t have to do anything to protect ourselves when we could have taken simple measures, because we expected the fire service to stop the fire before it got here’. I suspect that aspect of the ruling would be encouraging for those actively encouraging home owners in Australia to develop their own fire plan and develop their own resilience.
The plaintiffs also alleged negligence because they relied upon the State to give notice to evacuate. This case failed as they could not point to any ‘undertaking’ by the state to deliver an evacuation warning nor could they point to any law that would impose a legal duty upon the state to do so.