53 F3d 1080 Bennett v. United States

53 F.3d 1080

John BENNETT, et al., Plaintiffs-Appellees,
State Farm Fire & Casualty Insurance Company, Intervenor-Appellee,
UNITED STATES of America, Defendant-Appellant.

No. 93-16895.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted April 7, 1995.
Decided May 10, 1995.

Mark B. Stern, U.S. Dept. of Justice, Washington, DC, Michael A. Hirst, Asst. U.S. Atty., Sacramento, CA, for defendant-appellant.

Richard Sherman, Victoria J. De Goff, De Goff and Sherman, Berkeley, CA, and John Echeverria, Walkup, Melodia, Kelly & Echeverria, San Francisco, CA, for plaintiffs-appellees John Bennett, et al.

James R. Pagliero, Pagliero, Carter & Bauer, Sacramento, CA, for intervenor-appellee State Farm Fire & Cas.

Appeal from the United States District Court for the Eastern District of California; Lawrence K. Karlton, District Judge, Presiding.

Before: McKAY,* REINHARDT, and FERNANDEZ, Circuit Judges.


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John Bennett and others sued the United States pursuant to the Federal Tort Claims Act. They alleged that the United States was negligent in controlling a forest fire that broke out in the Toiyabe National Forest, as a result of which they suffered damages. The district court denied the government's motion for summary judgment, and this appeal ensued.


We affirm for the reasons set forth in our opinion in Anderson v. United States, 55 F.3d 1379 (9th Cir.1995). We recognize that in Anderson it was alleged that the United States Forest Service both negligently set and negligently controlled the fire on its land, whereas here the claim is merely negligent control. However, as Anderson indicates, that is a distinction without a difference.




Hon. Monroe G. McKay, Senior United States Circuit Judge, United States Court of Appeals for the Tenth Circuit, sitting by designation