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Lohse v. Faulkner12/29/1992
This case arises from a forest fire that originated in the Kaibab National Forest and spread to adjoining land. Plaintiffs are neighboring landowners whose property was damaged or destroyed by the fire. Plaintiffs seek damages, claiming that defendants negligently failed to conduct a fire patrol after logging in the forest and thereby permitted an otherwise detectable and suppressible fire to spread out of control.
On appeal, we affirm summary judgment for defendants because plaintiffs have failed to present evidence that defendants' nonfeasance deprived them of a substantial chance to escape harm. On cross-appeal, we remand the issue of attorneys' fees for the trial court to consider in its discretion pursuant to Ariz.Rev.Stat.Ann. ("A.R.S.") ยง 12-341.01(A).
FACTS
We state the facts in the manner most favorable to the party opposing summary judgment. Rogers v. Retrum, 170 Ariz. 399, 400, 825 P.2d 20, 21 (App.1991).
A. The Contracts
In 1957, defendant Southwest Forest Industries contracted with the United States Forest Service for the exclusive right to cut pulpwood in parts of the Colorado Plateau, including parts of the Kaibab National Forest. Southwest later subcontracted some of its logging to defendant Eddie Faultner. Faultner's activities in the Kaibab Forest on June 14, 1984, are the subject of this case.
In Southwest's "Colorado Plateau Pulpwood Sales Contract" with the Forest Service, Southwest committed itself and its subcontractors to certain fire prevention and suppression responsibilities:
Section 9b. Fire Suppression.
1. During the period of this contract, the purchaser [Southwest] shall, both independently and in cooperation with the Forest Service, take all reasonable and practicable action to prevent and suppress forest fires on the sale area and vicinity. The purchaser shall require his employees, subcontractors and their employees, respectively, to do likewise.
2. Independent initial fire suppression action by the purchaser on such fires shall be immediate and shall include the use of all necessary manpower and equipment at his disposal, including his subcontractors and their employees and equipment, engaged on or within 5 miles of the sale area in construction or in logging, removing or processing timber.
Section 9e. Fire Precautions.
1. The purchaser shall comply with, and shall require his employees, subcontractors, and their employees, engaged in the performance of any part of this contract to comply with, the fire precautionary measures set forth herein . . . .
The contract also required Southwest to join with Forest Service administrators in the execution of periodic fire plans. The 1984 fire plan for Southwest's Kaibab operation made it "the responsibility of the Purchaser, its employees and contractors, to do all in their power to contain all fires occurring in the operating areas."
Southwest's subcontract with Faultner incorporated by reference the terms of its contract with the Forest Service. The subcontract also required Faultner to "comply
with all Federal and State laws and regulations applicable to operations."
B. The C Regulations and Fire Patrols
The parties dispute whether one particular federal regulation applied to Faultner's operations on the date of the fire.
In 1975 the Forest Service adopted safety regulations known as "C Regulations," one of which defined the obligation of a timber plan "purchaser" such as Southwest
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