Abbott v. United States

78 F.4th 887

Paul W. ABBOTT, et al. (22-5492); Michael B. Reed, individually,as surviving spouse and next of kin of Constance M. Reed, deceased,and as surviving parent of Chloe E. Reed and Lillian D. Reed, deceased, et al. (22-5493);Brittany N. Hyre Anculle, et al. (22-5494); Jackie Sue Barnes, et al. (22-5495);Brittany Adkins, et al. (22-5499); James Carl Vance, individually, and as surviving spouseand next of kin of May Evelyn Norred Vance, deceased (22-5513), Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 22-5492

No. 22-5493

No. 22-5494

No. 22-5495

No. 22-5499

No. 22-5513

United States Court of Appeals, Sixth Circuit

Argued: January 25, 2023

Decided and Filed: August 17, 2023

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. Nos. 18-cv-201; 18-cv-308; 18-cv-310; 20-cv-149; 20-cv-283—J. Ronnie Greer, District Judge.

ARGUED: Benjamin C. Glassman, SQUIRE PATTON BOGGS (US) LLP, Cincinnati, Ohio, for Appellants. Jeffrey E. Sandberg, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Gordon Ball, GORDON BALL LLC, Nashville, Tennessee, Diana L. Martin, COHEN MILSTEIN SELLERS & TOLL PLLC, Palm Beach Gardens, Florida, for Appellants. Jeffrey E. Sandberg, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Before: CLAY, WHITE, and THAPAR, Circuit Judges.

WHITE, J., delivered the opinion of the court. CLAY, J. (pp. 903-10), delivered a separate concurring opinion. THAPAR, J. (pp. 910-11), delivered a separate concurring opinion.

OPINION

HELENE N. WHITE, Circuit Judge.

Plaintiffs-Appellants appeal the dismissal of their claims under the Federal Torts Claims Act (FTCA) for damages caused by the National Park Service's failure to warn of an uncontrolled wildfire ("Fire") that escaped from Great Smoky Mountains National Park (the "Park"). They appeal the denial of their motion to alter or amend the judgment under Federal Rule of Civil Procedure 59 as well. We vacate and remand.

I.

A.

On November 23, 2016, a slow-moving fire covering less than an acre was discovered by the Fire Management Officer of the Park, Greg Salansky. Due to the upcoming Thanksgiving holiday, the Park's superintendent and most of the staff were away, and Salansky undertook to manage nearly every aspect of the Park's fire response, from monitoring the Fire to organizing firefighting efforts and emergency notifications.

On the morning of November 24, Salansky and four other National Park Service ("NPS") firefighters returned to the scene. Salansky observed that the Fire had not spread since the night before but determined that building a fire line would be impossible in any event due to the steep terrain.¹ Accordingly, "Salansky opted to let the [F]ire burn," using the natural terrain to "contain the Fire." Reed, 22-5493, R.1, PID at 54.

Over the next four days, the Fire continued to grow despite the efforts of Park employees. On Sunday, November 27, Salansky requested additional "ground and aerial" firefighting resources from the NPS, the National Guard and the Bureau of Indian Affairs. Id. at 67. By around 1:00 pm, a National Guard "Chinook Type 1 helicopter - the largest helicopter for use on wildfires" arrived to begin pulling water from the Pigeon River and dropping it onto the Fire. Id. at 68-69. By that evening, the Fire had spread to between 35 and 40 acres but was still within the boundaries of the Park. Salansky released all firefighting personnel for the evening so that they could return the following day at first light. He did not monitor the Fire overnight.

The wind grew in strength, and at 4:05 a.m. Monday, November 28, the National Weather Service ("NWS") issued a high-wind warning, predicting " 'sustained wind speeds of at least 40 mph' by 1:00 p.m., with gusts of up to 60 mph." Id. at 75 (emphasis omitted). By 7:30 a.m., Salansky estimated that the Fire had grown from 40 acres to between 250 and 500 acres. When the firefighters returned that morning, they discovered that burning embers from the main fire had created "smaller fires as far as a mile away from the origin of the [F]ire." Id. Around the same time, people in Gatlinburg observed heavy smoke and ash falling from the sky. According to Plaintiffs, even at this point, "neither [acting Park Superintendent Clayton] Jordan² nor Salansky (nor any other Park official) took the slightest action to notify or warn Park neighbors, local officials, local residents or visitors of the imminent danger." Id. at 77. By 9:00 a.m., the Gatlinburg Fire Department began receiving emergency calls from members of the public about the smoke and falling ash. The Gatlinburg Fire Chief attempted to reach Salansky, but his call went unreturned until 10:58 a.m. The 10:58 a.m. call was the first communication between any Park staff and any Gatlinburg or other local official about the Fire.

Around noon, Gatlinburg Fire Department first-responders began delivering voluntary evacuation notices to residents in the Mynatt Park neighborhood of Gatlinburg. By 2:00 p.m., the Fire was moving as fast as half a mile per hour. By 4:15 p.m., the Fire was within a mile of the Mynatt Park neighborhood. Id. at 90. After 5:00 p.m., the Fire covered about 4,000 acres and had doubled in size since 3:00 p.m. Park Headquarters was evacuated around 5:15 p.m. Around 5:45 p.m., the Gatlinburg Fire Department received reports of fires within the city. At 6:00 p.m., winds gusted to 87 miles per hour and the Fire grew to 5,000 acres. A mandatory evacuation of the Mynatt Park neighborhood was issued at 6:11 p.m. Other fires ignited throughout the night. Plaintiffs assert that as the Fire continued to spread, "[e]vacuation-protocols also broke down" because local officials "simply lacked reasonable or sufficient time to reach every house, every apartment, every trailer, every campground, every cabin, or every hotel room ahead of the [F]ire." Reed, 22-5493, R.1, PID 97. A total evacuation of the Gatlinburg area was ordered shortly after 8:30 p.m. However, due to infrastructure failures created by the Fire—including the destruction of two Verizon cell towers—NWS did not send a message through the Emergency Alert System instructing residents to evacuate until 9:03 p.m. that night.

Rain finally arrived at 2:00 a.m. on November 29 and began to slow the Fire's spread. By that point, however, significant damage had been sustained by the Park and its neighbors. All told, 14 people died, 191 were injured, 2,500 structures were damaged or destroyed, and more than 17,000 acres burned. The Fire was not fully extinguished until December 13, 2016.

B.

In the aftermath of the Fire, both the NPS and ABSG Consulting conducted independent reviews of the conduct of Park staff in responding to the Fire. The ABSG Report was commissioned by the City of Gatlinburg and Sevier County. Although the NPS Report identified "no evidence of wanton disregard or negligence by anyone at the park," it determined that Park staff had failed to give proper warnings, and that the Fire "exposed several wildlife fire situational preparedness and planning weaknesses" at the Park. Reed, 22-5493, R.1-5, PID 223, 227. The report's scope, however, was limited to "NPS's preparedness and response to the Chimney Tops 2 Fire as it originated and burned within the Park's boundaries up to the time the [F]ire left the Park"—accordingly, it "did not detail anything that happened after" the Fire "spread outside the Park." Reed, 22-5493, R.1, PID 110. The ABSG report was more critical, stressing that "[f]rom the initiation of the Chimney Tops 2 wildfires on November 23 until the morning of November 28, there was no communication to the [Gatlinburg Fire Department] regarding the existence or progression of the" fire. Reed, 22-5493, R.1-6, PID 309. Along with various other problems, the ABSG report highlighted that Park "personnel contacted [Gatlinburg Fire Department] only after [the Gatlinburg Fire Department] had initiated inquiries regarding the" Fire. Id. at 330.

Plaintiffs all suffered the loss of loved ones or property.³

C.

In the months following the Fire, hundreds of individuals and several small businesses submitted claims for damages with the Department of the Interior using the Standard Form 95 ("SF95"), which is available on the Department of Justice website. Although the forms submitted by Plaintiffs differ as to their claimed injuries, the SF95 submissions are substantially similar in content. The SF95s state:

The U.S. government, through its employees, failed to follow mandatory regulations to monitor and extinguish a fire in the Great Smoky Mountains National Park, thereby allowing it to spread beyond the park boundaries onto claimants' private property, destroying their property.

Abbott, 22-5492, R.1-2, PID 192.

After the Department of the Interior failed to act on these claims within sixth months, Plaintiffs filed these actions. Plaintiffs' complaints seek relief based on the Park's failure to monitor and extinguish the Fire—as stated in the SF95 forms—and also based on the Park's failure to warn Park neighbors of the Fire.

Plaintiffs comprise six classes: the Abbott Plaintiffs, the Reed Plaintiffs, the Anculle Plaintiffs, the Barnes Plaintiffs, the Adkins Plaintiffs and the Vance Plaintiffs. The Reed Plaintiffs were the first to file their SF-95s with the Department of Interior, doing so in January and February of 2017. They filed suit over a year later in May 2018. The other plaintiffs' notices of claims and subsequent complaints were filed in similar fashion. Anculle, 22-5494, R.1-1 (SF-95 claims filed beginning in August 2017); Anculle, 22-5494, R.1 (complaint filed in July 2018); Barnes, 22-5495, R.1-1 (SF-95 claims filed beginning in May 2018); Barnes, 22-5495, R.1 (complaint filed in August 2019); Adkins, 22-5499, R.1-1, PID197 (SF-95 claims filed beginning in October 2017); Adkins, 22-5499, R.1 (complaint filed in July 2018); Vance, 22-5513, R.1-1 (SF-95...