Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
A lawsuit filed by the family of a Utah battalion chief killed when a Very Large Air Tanker (VLAT) dropped 19,600 gallons of fire retardant on his position while operating at the Mendocino Complex Fire in California in 2018, will continue following a ruling by a US District Court judge.
Draper City Battalion Chief Matthew Burchett died on August 13, 2018 when he was struck by a tree uprooted when an air taker owned by SuperTanker Services, LLC, dropped its load at 80 feet, 120 feet lower than the minimum allowable to permit the fire retardant to safely turn to mist. The aircraft was a Boeing 747-400. Chief Burchett deployed as part of a task force sent by Utah to assist in the fire fight.
Burchett’s family sued Global, the California Department of Forestry and Fire Protection (Cal Fire) and two firefighters, CalFire Division C Supervisor Garrett Prater and Trainee Jacobie Waters. Here is more on the original filing, including a copy of the complaint. The case was originally filed in Sacramento County Superior Court and removed to federal court at the request of Global and CalFire because the case involved federal aviation law. Global and CalFire then asked the federal court to dismiss the suit for failure to state a claim.
Without belaboring the point, the court addressed the motion to dismiss succinctly:
- Defendant contends Plaintiffs’ claims should be dismissed because they are preempted by federal law, and, regardless, Defendant is protected by either absolute or qualified immunity.
- Even if that was not the case, however, Defendant takes the position that Plaintiffs also failed to state claims on the merits… for gross negligence or strict liability for ultrahazardous activities.
- The Court disagrees.
The court goes on to explain the basis for its ruling. Here is a copy of the decision for those brave souls interested in going further.
