The remains of a home smolder in the wake of a wildfire November 30, 2016 in Gatlinburg, Tenn. More than 100 houses and businesses were damaged or destroyed. Drought conditions and high winds helped the fire spread through the foothills of the Great Smoky Mountains. (Photo by Brian Blanco/Getty Images)
A federal judge has dismissed a slew of lawsuits filed on behalf of hundreds of victims of a deadly wildfire that swept through Gatlinburg more than five years ago.
U.S. District Court Judge Ronnie Greer says the wildfire victims failed in preliminary claim forms to warn the National Park Service that they intended to accuse the government agency of failing to warn them of the deadly fire’s approach.
“As to the basis of claim, the (wildfire victims) wrote on the (claim) forms: ‘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,’ ” Greer’s ruling stated. “The (wildfire victims’ claim forms) contain no information about a failure to warn or facts related to a failure-to-warn claim.
“It is ordered and adjudged that (wildfire victims) recover nothing,” Greer wrote.
The ruling impacts 527 victims, including Michael Reed, a Gatlinburg resident whose wife and two children burned to death after being trapped by a wall of fire in the 2016 blaze.
In all, 14 people died and more than 2,000 homes and businesses were damaged or destroyed when a wildfire that began in the Great Smoky Mountains National Park spread to Gatlinburg and surrounding neighborhoods in Sevier County in November 2016.
The fire started on the remote Chimney Tops peaks inside the Smokies on Nov. 23, 2016, during a record-setting drought. Greg Salansky, the park’s fire management officer, decided to try to contain the fire rather than attack it directly, despite forecasts of high winds and “critically dry” conditions.
Greer has already ruled that the National Park Service failed in its mandatory duty to warn Gatlinburg leaders and citizens the fire – originally an acre in size – was spreading fast and headed for residential neighborhoods surrounding the Smokies.
Local officials only learned about the fire on the morning of Nov. 28, 2016, when a Gatlinburg fire captain called Salansky about the clouds of smoke hanging over town—and didn’t learn until 12:30 p.m. that day that the fire was headed their way.
When winds topped 60 mph around 6 p.m., the fire wrapped around the city on both sides. Most of the fire’s victims, including Reed’s wife and daughters, died on the western side of town, where police and firefighters delivering evacuation notices failed to reach everyone in time.
In the wake of Greer’s decision to toss out their lawsuits, the 527 victims are crying foul.
In a motion filed last week, they say attorneys for the National Park Service sandbagged them into believing their initial claim forms were just fine–until the deadline to revise the forms ran out.
Attorney: Justice Department misled victims
Reed and fellow wildfire victim James England were the first to file suit against the National Park Service. Their attorney, Gordon Ball, says in a letter to Greer that he specifically asked Justice Department lawyers representing the agency about the claim forms at issue in a July 2018 phone call.
“I was assured orally by (Justice Department) counsel that the forms were complete and the government had no problem with the forms or the completeness,” Ball wrote.
The Justice Department, he said, followed up on that call with a letter to Ball and co-counsel, Sid Gilreath and Theodore Leopold. The letter stated that “the United States is not now aware of any … defects in the administrative claims you have filed on behalf of your clients arising out of the Chimney Tops fire.”
So, Ball says in his letter, he and his legal partners did not make any changes to the required claim forms before filing similar lawsuits on behalf of the remaining 525 victims.
I was assured orgally by (Justice Department) counsel that the forms were complete and the government had no problem with the forms or the completeness.
– Gordon Ball, attorney for victims of the 2016 Gatlinburg wildfire in a letter to Greer.
After the wildfire victims won two key rulings paving the way for trial against the National Park Service, the Justice Department last year claimed –for the first time – that the original claim forms filed by Reed and other wildfire victims were flawed and asked Greer to chuck their lawsuits as a result, the victims’ lawyers wrote.
“(Wildfire victims) litigated their actions for years, surviving two rounds of motions to dismiss, without the Government raising any argument that (the victims) failed to provide proper notice of their claims,” the attorneys wrote in a motion filed last week.
“The Government answered (the victims’) complaints, including the counts for negligent failure to warn, without ever mentioning claim … forms, much less the sufficiency of (the forms),” the motion continued.
“The Government waited three years from the time it assured (wildfire victims’) counsel it had no issues with (their) notices,” the motion stated. “By this time, of course, the time had run for (wildfire victims) to amend their notices of claim or file new claims.”
The victims’ attorneys are asking Greer in the motion to set aside his dismissal order and allow wildfire victims to correct or update the claim forms as necessary to successfully pursue damages against the National Park Service.
“(Wildfire victims) relied on the Government’s representations to their detriment because the Government waited until after the statute of limitations ran to challenge the notices,” the motion states. “Rather than rewarding the Government’s misconduct with final judgments in their favor, the Court should vacate the judgments and provide leave for (wildfire victims) to amend their complaints.”
The Justice Department has not yet filed a response to the motion.
In the meantime, Greer is refusing to dismiss lawsuits filed against the National Park Service by insurance companies that paid out claims in connection with the deadly wildfires. He says in his ruling that those firms – unlike the wildfire victims – properly listed the failure to warn allegation in their original claim forms.
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