Suits likely after AZ cited for firefighter deaths

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By Christina O'Haver By Christina O'Haver

PHOENIX (AP) -- Citations and fines issued to the Arizona Forestry Division for the deaths of 19 firefighters could bolster efforts by their families to sue the state, but the bar for filing lawsuits in workplace deaths remains high, according to lawyers.

The state Industrial Commission's decision to issue $559,000 in fines after finding willful and serious lapses of workplace safety rules will make it easier to get around laws preventing wrongful death lawsuits in nearly all workplace accidents, a lawyer for one family and another employment law attorney said. But others said Thursday that the bar is high and a judge may not allow families to sue.

The Industrial Commission levied the fine Wednesday after investigators with the Arizona Division of Occupational Safety and Health determined the Granite Mountain Hotshots and other crews fighting the Yarnell Hill fire on June 30 should have been pulled out at least an hour before the crew was trapped and killed. The state has 15 working days to appeal.

The investigators determined that state fire officials put protection of property and pasture ahead of firefighter safety, even though they knew the area couldn't be defended. They lacked key personnel at critical times, including officers focused only on safety, lead investigator Marshall Krotenberg told the commission. He also said commanders knew a thunderstorm was brewing to the north that would likely shift winds and push the fire toward crews battling the fire.

The ADOSH report stands in stark contrast to an earlier investigation commissioned by the Forestry Division, which found that state fire officials communicated poorly but followed proper procedures.

The mother of one of the firefighters has filed a $36 million notice of claim against the state, Yavapai County and the city of Prescott, saying negligence led to her son's death. A claim is required before someone can sue a government agency in Arizona.

Craig Knapp, the attorney for firefighter Grant McKee's mother, Marcia McKee, said the ADOSH report will make it easier to overcome the general ban on suing employers for wrongful death under the state's workers' compensation system, which provides benefits to the spouses and children of workers who are killed.

"There is an exemption when the employer acts with willful, intentional kind of conduct," Knapp said. "So with those findings yesterday, we're optimistic even if they were employees of the state, that the wrongful death claims will be able to be pursued."

Knapp said other families are also likely to sue, although none has yet filed a claim.

Juliann Ashcraft, whose husband, Andrew Ashcraft, was killed, said in an interview Wednesday that litigation might be the only way of getting all the answers, although she stopped short of saying she planned to sue.

"There are many times that my husband had been on fires and been pulled off because the conditions were not safe for firemen to be there," she said. "Had incident command ever had control of this fire, it's my feeling that those men would have been called off."

The Hotshots were employed by the city of Prescott but were considered to be state employees at the time under a standing contract that allows the state to call on Prescott's crew. That might allow a so-called "third-party" lawsuit against the state.

An employment attorney not involved in the case agreed that the citations make the bar on workplace lawsuits easier to overcome.

"If the state was negligent - and in fact willfully negligent - if that is true, and a judge rules that workers' compensation is not an exclusive remedy ... then you've got wrongful death actions against the state," employment lawyer Craig O'Loughlin told The Arizona Republic on Wednesday.

But another Phoenix lawyer with more than 40 years of experience in workers' compensation law wasn't so sure.

"It really is not intentional. It's just gross negligence, but that's workers' comp," said Harlan Crossman. "Could they sue them in Superior Court? I think they're going to have an awful lot of trouble."

Employment law attorney Anoop Bhatheja agreed with Crossman.

"You're still facing a significant number of hurdles to get to liability for the state outside the workers' compensation structure," Bhatheja said.

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