Owners of the 23 homes burned in the Little Valley fire went to the Supreme Court on Tuesday fighting to eliminate the statutory limits on damages they can collect from the state.
The issue is whether those claims are treated as negligence and subject to the $100,000 cap on tort damages or treated as a “taking,” which would get them and their insurance companies out from under that cap and potentially open the state to a much larger dollar amount of damages.
Solicitor General Lawrence Van Dyke urged the court to grant a writ ordering the district court to dismiss the inverse condemnation claim with prejudice.
“An essential element of any inverse condemnation claim is that the plaintiff proves that the state actor took private property for public use,” he argued in briefs submitted. “Accidental injuries, even those caused by gross negligence, are still torts, not takings.”
Justice Kris Pickering asked why the court shouldn’t instead send the case back to Freeman to flesh out all the evidence so the high court could better determine how to treat the case.
“Don’t we make better decisions when we have a full record?” she asked.
Van Dyke said in every other case, it’s clear this doesn’t meet the definition of a taking so the court should decide the issue now and end the argument. He conceded the defendants likely have a strong case for a tort action given the errors and bad decisions that cause the controlled burn to get out of control.
Matthew Sharp, speaking for the residents, many of whom crowded the courtroom, urged the five participating justices to send the case back to Washoe District Judge Scott Freeman to do just what Pickering suggested.
Freeman, he said, “simply denied the motion to dismiss.”
“This case is fraught with supplemental issues,” he said. “It’s dangerous for the court to make a decision of this import without a factual record.”
Van Dyke said it would be ridiculous to suggest the state conducted a controlled burn with the intent of it getting out of control. Without that intent, he said, it’s a tort claim — which is subject to the $100,000 cap.
“We have direct evidence of intent and you don’t have that information,” said Sharp. “That’s why this is premature.”
The fire started as a controlled burn on the west side of Washoe Valley in October 2016. The controlled burn was supposedly completed Oct. 11 but, in the wee hours of Oct. 14, driven by winds gusting for more than 80 mph, it roared down the valley into homes along Franktown Road.
An 81-page report on the fire blamed inadequate preparation and decision making for the blaze, putting the onus clearly on the state for not handling it properly.
Homeowners say the damages from the fire are in the millions of dollars.
The arguments were heard without Justices Mike Cherry and Jim Hardesty.
Hardesty was reviewing the case to decide whether he should recuse himself or not. Cherry was unavailable.
The five justices took the case under submission.
