A Tombstone man who claims he suffered respiratory problems in 2018 after alerting other residents to the fire and saving a friend’s pets from a locked RV where the fire started will have a chance to argue to a jury why his friend should be held liable for damages.
The trial of Vincenzo Foster versus Steven Muccillo starts next Friday at the Cochise County Superior Court, more than 3.5 years after fire destroyed each of the men’s RVs, destroyed or damaged several others, and sent Foster to a Tucson hospital in a helicopter. Testimony is expected to continue through the next week.
Court records show Foster and Muccillo were friends who each lived at the Wells Fargo RV Park in Tombstone. The two noticed flames coming from the direction of the RV park shortly after midnight Feb. 25, 2018 as they walked home from a local saloon.
They found Muccillo’s trailer fully engulfed, and the fire was spreading to other RVs. Foster obtained Muccillo’s trailer keys so Foster could rescue Muccillo’s dogs locked inside the trailer. He then ran to several other trailers to ensure the RV park tenants were safe.
Foster then went back by Muccillo’s trailer to see if any other property could be saved. That is when part of the trailer exploded. A fire marshal determined the fire started in Muccillo’s trailer, with the likely ignition point near the refrigerator. The same refrigerator Foster claims Muccillo had been trying to repair.
“By tampering with the inner workings of his refrigerator, and leaving it plugged in while on notice of its defective nature, [Muccillo] created the circumstances which caused the trailer park fire and explosion that injured [Foster],” the February 2020 lawsuit alleges.
On Aug. 17, Judge David Thorn ruled against an effort by Muccillo to kill Foster’s lawsuit in advance of trial through a motion for summary judgment, which allows one party to ask the judge to decide the case prior to trial. To be successful with summary judgement, Muccillo had to demonstrate there were no disputed material facts in the case and the moving party is entitled to judgment on the merits as a matter of law.
According to Muccillo’s attorneys for State Farm Insurance, Muccillo should not be held liable for the consequences of Foster’s decisions to place himself in harm’s way during the fire, especially when Foster ran back to Muccillo’s burning trailer after the dogs were rescued.
“It is undisputed that [Muccillo] did not direct, instruct, or even so much as ask [Foster] to enter the burning RV,” Muccillo argued. “And while it is true that whether a condition is open and obvious is usually a jury question, the facts of this case leave no room for any reasonable dispute. A structure that is in flames, is, by definition, and open and obvious condition.”
In response to the motion for summary judgment, Foster argued he did not expect Muccillo’s burning trailer to explode and thus did not know nor appreciate the “magnitude of the risk” he was taking.
In Thorn’s denial of summary judgment, he noted at least two material fact disputes exist in the case, including whether Muccillo’s actions in “messing with” the refrigerator caused or contributed to the fire. That is “a factual question to be determined by the trier of fact at trial,” the judge wrote, referring to the jury.
Thorn also noted Arizona Supreme Court adopted a “rescuer’s doctrine” in 2006 which allows those injured while engaged in the rescue of persons or property to pursue a tort claim against those whose actions gave rise to the danger creating the need for a rescue.
“It is black letter law that ‘danger invites rescue’…as every first-year law student learns in torts class,” Thorn wrote.
Public records show 100 Cochise County residents have been summoned to appear Sept. 10 for jury selection. Even if the jury finds Muccillo responsible for the fire, they could find he was not liable for Foster’s injuries. The exact nature of those injuries is not detailed in the public court documents although there is mention of smoke inhalation.
Foster is represented by Jonathan Henry of Tempe-based Kent Law PLC. Muccillo’s attorney through State Farm is Kristin A. Green of Lisa A. Duran & Associates.
