Sixth Circuit Affirms Trial Court Rulings in 2016 Great Smoky Mountains Fire Suit

The US Sixth Circuit Court of Appeals has ruled that a district court was correct in dismissing negligence claims brought against the federal government by insurance providers who paid claims resulting from the 2016 Great Smoky Mountains fire. The fire burned over 16,000 acres, damaged over 2500 structures, destroyed the City of Gatlinburg, and killed 14 people.

The insurers sued under their right to subrogation claiming that the National Parks Service was negligent in fighting the fire initially, allowing it to grow to catastrophic size. Besides alleging negligence, the insurers also claim the National Parks Service breached its duty to warn area residents. The Sixth Circuit agreed with the trial court that the insurers can proceed under the duty to warn theory. The US appealed that ruling seeking to have that allegation dismissed as well.

This appeal is part of the merger of a number of suits that have been consolidated into what is referred to as a mass tort action. Here is earlier coverage of the matter, including the trial court ruling that is being appealed. Note that while the case names may change, the file numbers associated with the cases are consistent with the mass tort nature of the proceedings.

The facts outlined by the court are interesting and are quoted here at length:

• 2016 was a year of unusual drought in the Great Smoky Mountains National Park.
• On Wednesday, the day before Thanksgiving, a small vegetation fire was spotted coming from Chimney Tops Mountain, a double-peaked, exposed bedrock summit at an elevation of 4,724 feet, located approximately 5.5 miles south of Gatlinburg, Tennessee.
• The Park’s Fire Management Officer (FMO), Greg Salansky, after hiking a steep two-mile trail, located the Fire burning on the treacherously steep, nearly vertical northern peak known as Chimney Tops 2.
• Given the dense vegetation and hazardous terrain, Salansky determined that the best course of action was an indirect strategy, permitting the Fire to burn inside a 410-acre containment “box” delineated by topographic and natural barriers.
• Due to the holiday, Slansky had granted leave to most of the Park’s fire staff.
• Salansky did not cancel any of those requests or staff extra resources, and he failed to utilize the Park’s fire-management step-up (staffing) plan to request additional staffing needed to meet the elevated fire danger, based on the drought and weather forecasts.
• The Fire remained relatively small and inaccessible on Thursday and Friday and the firefighters who were not on leave spent time scouting the containment box. But by early Saturday morning, fire-weather forecasts indicated dangerous high winds on Monday and rain Monday night.
• Salansky performed a “Near Term Fire Behavior” projection in the field, which anticipated that the Fire could spread beyond the containment box.
• Nonetheless, Salansky believed, based on historical fire events and practices in the Park, that the containment box would successfully “catch and hold the fire.”
• On Sunday, Salansky arrived at the Park at 0730 hours and realized that the Fire “had become more active overnight.”
• Salansky determined that the Fire had now risen to a Type 3 fire incident. He now requested ground and aerial fire-suppression assets.
•  At 1300 hours, a helicopter along with an air-attack plane arrived to, respectively, drop water and provide surveillance information on the Fire.
• At approximately 1500 hours, a second plane took the first infrared images of the wildfire for mapping purposes.
• Those images indicated that the Fire perimeter had grown and was near the edge of the southwestern line of the containment box.
• By 1630 hours, all aircraft were grounded for the day due to weather-related flight restrictions.
• Sunday evening, at 2000 hours, Salansky went to an overlook northwest and below Chimney Tops 2.
• From this vantage point, he observed that the visible Fire behavior appeared minimal, stating “you couldn’t even see the fire except for a couple glowing areas.”
• Because “the fire appeared quiet” with “no continuous line of fire visible,” Salansky lowered his classification of the Fire from a Type 3 to a Type 4 fire incident, even though the infrared aerial images had mapped the Fire at 35 acres in size on the southwest side of the mountain.
• Salansky sent all firefighters home for the evening and all monitoring of the Fire stopped throughout the night.
• When firefighters returned at 0700 hours Monday morning, the Fire had spread significantly and was now an estimated 250-500 acres in size.
• A strong wind was blowing north toward Gatlinburg and scattered “spot fires” were now outside the containment box.
• Having had no contact from the Park, the Gatlinburg Fire Department (GFD) initiated contact with FMO Salansky at 0900 hours in response to seeing ash and smoke.
• Salansky returned GFD’s call at 1058 hours and, despite having a mutual-aid agreement, Salansky told the captain of the GFD that the Park did not need help fighting the Fire and that the Fire was not a threat to the city.
• At 1100 hours, Salansky heard Park dispatch report that the Fire had spread to a picnic pavilion housing the Park’s science center, resource-management offices, and fire offices, located approximately 1.5 miles from the Gatlinburg city limits.
• High winds drove the Fire from ridge top to ridge top and there were reports of spot fires at least 5 miles away from the main Fire.
• The Fire, which was described by Salansky as “very intense and very extreme,” jumped roads, trails, wet drainages, and wide creeks.
• With the Fire having breached containment, Park dispatch now asked the GFD for assistance and Salansky requested a Type 2 incident-management team and resources from the Tennessee Interagency Coordination Center (TICC), as well as assistance from the Tennessee Division of Forestry (TDF) and the Cherokee National Forest.
• At 1330 hours, Salansky sought additional aerial support, but after just one attempted flight, no air assets could fly due to extreme wind turbulence.
• Then the TICC offered, and Salansky accepted, a Type 1 incident-management team that could arrive by 1800 hours the next day, Tuesday.
• Until that time and throughout the entire fire incident, from Wednesday until Tuesday, Salansky served as the fire-management officer, the incident-command officer, and the duty officer.
• By 1800 hours, the Fire had entered Gatlinburg where it combined with other fires started by downed power lines and engulfed parts of the city, reportedly igniting an additional structure every 18 seconds.
• Gatlinburg officials attempted to evacuate the city. By midnight the Fire covered 16,000 acres.
• At 0200 hours on Tuesday, rain began to fall and slowed the spread of the Fire. But by that time, the Fire had burned more than 17,000 acres, destroyed property worth hundreds of millions of dollars, injured 191 people, and killed 3 people in Gatlinburg and 11 people in Sevier County.
• Plaintiffs sued the government for negligence under the Federal Tort Claims Act on grounds that the Park was negligent for failing to follow multiple mandated fire-management protocols and for failing to issue mandatory warnings to the public about the Fire as required by policies set forth in five agency documents.
• The fire-management claims assert that the Park 1) failed to follow the incident-command structure required for every wildland fire; 2) failed to follow mandatory fire-monitoring protocols; and 3) failed to follow the Wildfire Decision Support System (WFDSS) required in developing and authorizing a fire-management response.
•  The failure-to-warn claims allege that the Park did not “notify park neighbors of fire management activities that have the potential to impact them” and failed to warn local residents and officials “about the status of and imminent danger presented by” the Fire.
• In November 2020, the district court granted the government’s motion to dismiss for lack of subject-matter jurisdiction as to the fire-management claims, but denied dismissal of the failure-to-warn claims. Plaintiffs appealed and the government cross-appealed.

The 6^th Circuit affirmed the trial court’s dismissal of the insurers’ negligence claims based on the discretionary-function exception, while agreeing that the insurers are entitled to pursue the duty to warn claims. The court’s legal analysis is less interesting than the factual statements above, but for those who want to understand the court’s reasoning, a copy of the decision is provided below. The case will now return to the US District Court for the Eastern District of Tennessee where the insurers will proceed under the duty to warn theory.