Law Offices KNAPP & ROBERTS Offices: Website: krattorneys.com A Professional Corporation Scottsdale, Arizona E-mail: [email protected] Phoeni x, Arizona 8777 North Gainey Center Drive, Suite 165 Scottsdale, Arizona 85258 (480) 991 -7677 November 14, 2013 Mayor Marlin Kuykendall Lynn Mulhall, City Clerk Prescott City Hall Prescott City Hall CITY OF PRESCOTT CITY OF PRESCOTT 201 South Cortez Street 201 South Cortez Street Prescott, Arizona 86303 Prescott, Arizona 86303 Darrell Willis, Wildlands Division Chief Dan Fraijo, Fire Chief GRANITE MOUNTAIN IHS CREW PRESCOTT FIRE DEPARTMENT 1700 Iron Springs Road 1700 Iron Springs Road Prescott, Arizona 86305 Prescott, Arizona 86305 Governor Janice K. Brewer Scott Hunt, Arizona State Forester OFFICE OF THE ARIZONA GOVERNOR ARIZONA STATE FORESTRY DIVISION 1700 West Washington Street 1110 West Washington Street, Suite 100 Phoenix, Arizona 85007 Phoenix, Arizona 85007 Tom Horne, Arizona Attorney General Robert Halliday, Director OFFICE OF THE ATTORNEY GENERAL ARIZONA DEPT. OF PUBLIC SAFETY 1275 West Washington Street 2102 West Encanto Boulevard Phoenix, Arizona 85007 Phoenix, Arizona 85009-2847 Wendy Smith-Reeve, Director Wendy Smith-Reeve, Director ARIZONA DIV. OF EMERGENCY MGMT. ARIZONA INCIDENT MANAGEMENT TEAM 5636 East McDowell Road 5636 East McDowell Road Phoenix, Arizona 85008-3495 Phoenix, Arizona 85008-3495 Chip Davis, Chairman of the Board Scott Mascher, Yavapai County Sheriff YAVAPAI COUNTY BD. OF SUPERVISORS YAVAPAI COUNTY SHERIFF’S 1015 Fair Street OFFICE Prescott, Arizona 86305 255 East Gurley Street Prescott, Arizona 86301 Ana Wayman-Trujillo, Clerk of the Board YAVAPAI COUNTY BD. OF SUPERVISORS 1015 Fair Street Prescott, Arizona 86305 A.R.S. § 12-821.01(A) Notice of Claim, Yarnell Hill Fire Decedent: Grant Quinn McGee November 14, 2013 Page 2 of 16 Re: A.R.S. § 12-821.01(A) Notice of Claim—Yarnell Hill Fire Name of Decedent: Grant Quinn McKee Date of Death: June 30, 2013 Claimant: Marcia McKee (Mother of Decedent) Dear Public Entities: Introduction We represent Claimant Marcia McKee, the mother of Grant Quinn McKee. Because of the negligence of the State of Arizona, Yavapai County, and the City of Prescott—and because of the negligence of their relevant agencies, departments, officials, employees, and agents—Grant McKee died on June 30, 2013, during the Yarnell Hill Fire. With the exercise of reasonable care, Grant’s death was preventable. In fact, with the exercise of reasonable care, no member of the Granite Mountain Interagency Hotshot Crew would have died on June 30, 2013. Grant McKee, and 18 of his fellow crewmembers, died because the City of Prescott, Yavapai County, and the State of Arizona (the “liable public entities”) violated all 10 of the nationally recognized Standard Firefighting Orders. For ease of reference by firefighters who battle wildfires and forest fires across the nation, the Standard Firefighting Orders appear in many sources, including on the final page of the Red Book, which has the full title of U.S. Forest Service, Interagency Standards for Fire and Fire Aviation Operations, NFES 2724 (Jan. 2013). The 10 Standard Firefighting Orders are mandatory principles guiding all competent, responsible firefighting managers and personnel assigned to combat fires like the Yarnell Hill Fire. On its website, the National Interagency Fire Center explains that the 10 Standard Firefighting Orders were “developed in 1957 by a task force studying ways to prevent firefighter injuries and fatalities.” The 10 Standard Firefighting Orders are “firm.” That is, according to the National Interagency Fire Center: “We don’t break them; we don’t bend them. All firefighters have the right to a safe assignment.” The ten Standard Firefighting Orders, and a brief summary of their violations in this case, are as follows: • Keep informed on fire weather conditions and forecasts. A.R.S. § 12-821.01(A) Notice of Claim, Yarnell Hill Fire Decedent: Grant Quinn McGee November 14, 2013 Page 3 of 16 The liable public entities negligently used poor and untimely information about the relevant fire weather conditions and forecasts. • Know what your fire is doing at all times. The liable public entities lost track of what the fire was doing well before Grant McKee and his crew became engulfed in smoke and flames. • Base all actions on current and expected behavior of the fire. The liable public entities did not base their firefighting actions on the fire’s current and expected behavior. • Identify escape routes and safety zones and make them known. The liable public entities failed to identify available escape routes and safety zones, and thus failed to make escape routes and safety zones known to Grant McKee and his crew. • Post lookouts when there is possible danger. Despite the possible danger of deadly, rapid, and erratic fire movement, the liable public entities failed to post and maintain lookouts at strategic locations. • Be alert. Keep calm. Think clearly. Act decisively. Instead of being alert, keeping calm, thinking clearly, and acting decisively, the liable public entities were unaware of the weather and fire changes and of the location of Grant McKee and his crew, were not professionally calm in managing the firefighters, were not thinking clearly about what needed to be done to protect the firefighters, and acted indecisively. A.R.S. § 12-821.01(A) Notice of Claim, Yarnell Hill Fire Decedent: Grant Quinn McGee November 14, 2013 Page 4 of 16 • Maintain prompt communications with your forces, your supervisor and adjoining forces. The liable public entities negligently failed to maintain prompt and accurate communications with the firefighting forces, failed to maintain contact with all relevant supervisors and resources, and failed to maintain communications among and between adjoining forces. • Give clear instructions and insure they are understood. The liable public entities failed to give clear instructions to Grant McKee’s crew and to support personnel and failed to insure that instructions were understood. • Maintain control of your forces at all times. The liable public entities had scant control over the firefighting forces, especially as the situation confronting Grant McKee and his crew deteriorated. • Fight fire aggressively, having provided for safety first. The liable public entities failed to provide for safety first as they were conducting the fight against the fire. The liable public entities faced many hazardous conditions that the U.S. Forest Service’s Red Book warns are “Watch out Situations.” The Red Book lists 18 “Watch out Situations.” Once again, because of the importance of having a list of those “Watch out Situations” available for easy reference, they appear on the last page of the Red Book. The liable public entities faced—and negligently failed to safeguard against—almost all of the “Watch out Situations.” These are the “Watch out Situations” that the liable public entities negligently failed to safeguard against: A.R.S. § 12-821.01(A) Notice of Claim, Yarnell Hill Fire Decedent: Grant Quinn McGee November 14, 2013 Page 5 of 16 • Fire not scouted and sized up. • Safety zones and escape routes not identified. • Unfamiliar with weather and local factors influencing fire behavior. • Uninformed on strategy, tactics, and hazards. • Instructions and assignments not clear. • No communication link with crew members/supervisor. • Unburned fuel between you and fire. • Cannot see main fire, not in contact with anyone who can. • On a hillside where rolling material can ignite fuel below. • Weather is getting hotter and drier. • Wind increases and/or changes direction. • Getting frequent spot fires across line. • Terrain and fuels make escape to safety zones difficult. In summary, the liable public entities carelessly and negligently failed to take protective measures against at least 13 of the “Watch out Situations” that confronted Grant McKee and his crew and negligently violated all ten of the Standard Firefighting Orders. That negligence killed Grant McKee and the 18 other members of the Granite Mountain Interagency Hotshot Crew. 1. The Sum-Certain Demands and the Notice of Claim Process. Claimant is making sum-certain demands. First, she is demanding $12 million from the State of Arizona. Second, she is demanding $12 million from the City of Prescott. Third, she is demanding $12 million from Yavapai County. For each other public entity that is subject to this notice of claim as a jural entity, Claimant is demanding the separate sum of $12 million. Claimant intends to make, and has made, a sum-certain demand against each liable public entity in the amount of $12 A.R.S. § 12-821.01(A) Notice of Claim, Yarnell Hill Fire Decedent: Grant Quinn McGee November 14, 2013 Page 6 of 16 million. In the alternative, if the public entities want to pool their resources, and make one aggregate settlement offer of $12 million, the Claimant is willing to accept the sum of $12 million as settlement in full. This willingness to negotiate and accept an aggregate settlement is not meant to, and does not, detract from the sum-certain demands, which are made to comply with the requirements of the notice-of-claim statutes. This notice of claim makes clear sum-certain demands. If the demanded amounts are paid within 60 days of the date of service of this notice of claim, this matter will be at an end. If the City of Prescott, Yavapai County, and the State of Arizona reject the notice of claim, or fail to accept the settlement offers contained in this notice of claim within 60 days of the date of its service, Claimant reserves the right to institute legal action against the City of Prescott, Yavapai County, and the State of Arizona at her sole discretion. This notice of claim is a good-faith effort to negotiate a fair settlement. Claimant trusts and expects that the State of Arizona, Yavapai County, and the City of Prescott will take this opportunity to negotiate a fair settlement.