Questions about the deaths of 19 hotshots may never be answered, attorney says

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Even though there may be evidence of gross negligence, an appeals court rule the mother of one of the fighters killed in the Yarnell Hill fire cant sue the state.  (Source: KPHO/KTVK) Even though there may be evidence of gross negligence, an appeals court rule the mother of one of the fighters killed in the Yarnell Hill fire cant sue the state. (Source: KPHO/KTVK)
Grant McKee. (Source: KPHO/KTVK) Grant McKee. (Source: KPHO/KTVK)
MESA, AZ (3TV/CBS 5) -

It’s been more than three and a half years since 19 firefighters were killed battling the Yarnell Hill fire, and their families still have lingering questions.

“We don't know why the Granite Mountain Hotshots weren't provided with proper communications equipment,” said attorney David Abney. “We don't know why they weren't equipped with proper fire shelters that were rated to deal with a wildfire.”

“We don’t know why the air traffic controller [went home] at the critical time when the Granite Mountain Hotshots were most threatened, when they needed water drops,” he said. 

The only hope of answering those questions now, according to the Abney, is the Arizona Supreme Court.

On Friday, a state appeals court ruled Abney’s client, the mother of hotshot Grant McKee, has no legal right to sue the state for wrongful death, even if her claims of gross negligence are true. The case highlights the legal difficulties facing families of state workers killed on the job when trying to take the state to court.

Under Arizona law, state workers injured or killed on the job are only entitled to workers’ compensation. Families of the other 18 fallen hotshots have already accepted settlements based on the workers' compensation formula, each for $50,000 or less, Abney said.

The one exception: if workers, or their heirs, can prove there was “willful misconduct” involved in their injury. That powerful language gives the state immunity to claims involving negligence or gross negligence that other government entities are subject to, Abney said.

“The state should be as liable as anybody else,” Abney said.

Although the Granite Mountain Hotshots were employed by the City of Prescott, they were effectively state employees at the time of the incident, a lower court ruled. The appeals court affirmed that ruling Friday. That means the “willful misconduct” standard applies.

In a unanimous appeals court opinion, Presiding Judge Andrew W. Gould wrote that willful misconduct “requires proof of deliberate, intentional misconduct.”

“The complaint alleges a series of negligent and grossly negligent acts that, if proven, culminated in the deaths of the Granite Mountain Hotshot crew; however, it does not allege these acts were done knowingly and purposely with the direct object of injuring the firefighters,” he wrote.

Gould then referenced the fact that a division supervisor and an air tactical supervisor left their posts during the firefight, and said that even if their actions amounted to dereliction of duty causing McKee’s death, McKee’s mother still did not have grounds to sue the state.

“Appellant does not allege that either of the supervisors did so with the deliberate intention of harming McKee or any member of the Granite Mountain Hotshot crew,” he wrote.

Abney said the only way to find out the intentions of the air tactical supervisor, who declined interviews with investigators, would be through the civil court process of depositions – which the appeals court blocked.

“The state is responsible for killing 19 fine, brave firefighters. Unless this case goes through, we will never find out exactly what the state did wrong that resulted in their deaths,” he said. “What we know so far is gross misconduct, extreme negligence. We don't know the whole story. And unless we can get back in the trial court, no one ever will.”

He plans to file an appeal to the Arizona Supreme Court later this month.

Copyright 2017 KPHO/KTVK (KPHO Broadcasting Corporation). All rights reserved.

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This once-uncompromising "California guy" got his first taste of Arizona in 2015 while covering spring training baseball for his former station. The trip spanned just three days, but Derek quickly decided Phoenix should be his next address. He joined CBS 5 and 3TV four months later, in August 2015. Before packing his bags for the Valley of the Sun, Derek spent nearly four years at XETV in San Diego, where he was promoted to Weekend Anchor and Investigative Reporter. Derek chaired the Saturday and Sunday 10 p.m. newscasts, which regularly earned the station's highest ratings for a news program each week. Derek’s investigative reporting efforts into the Mayor Bob Filner scandal in 2013 sparked a "governance crisis" for the city of San Diego and was profiled by the region’s top newspaper. Derek broke into the news business at WKOW-TV in Madison, WI. He wrote, shot, edited, and presented stories during the week, and produced newscasts on the weekends. By the end of his stint, he was promoted to part-time anchor on WKOW’s sister station, WMSN. Derek was born in Los Angeles and was named the “Undergraduate Broadcast Journalism Student of the Year” in his graduating class at USC. He also played quads in the school’s famous drumline. When not reporting the news, Derek enjoys playing drumset, sand volleyball, and baseball.

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