Regner v. North Star Volunteer Fire Department, Inc.

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
LEO A. REGNER, )
) Supreme Court No. S-14794
Appellant, )
) Superior Court No. 4FA-10-03390 CI
v. )
) OPINION
NORTH STAR VOLUNTEER FIRE )
DEPARTMENT, INC.; JEFF ) No. 6891 – April 11, 2014
TUCKER, “Fire Chief”; JERRY )
HANSON, “Fire Commander” at the )
scene; NORTH POLE FIRE )
DEPARTMENT; BUDDY LANE, )
“Fire Chief,” )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Michael A. MacDonald,
Judge.
Appearances: Leo A. Regner, pro se, Fairbanks, Appellant.
Laura L. Farley, Farley & Graves, P.C., Anchorage, for
Appellees North Star Volunteer Fire Department, Jeff
Tucker, and Jerry Hanson. Zane D. Wilson, Cook
Schuhmann & Groseclose, Inc., Fairbanks, for Appellees
North Pole Fire Department and Buddy Lane.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
STOWERS, Justice.
I. INTRODUCTION
On December 31, 2008, a fire broke out at a mobile home owned by Leo
Regner near North Pole. The North Star Volunteer Fire Department, the North Pole Fire
Department, and the Fort Wainwright Fire Department responded to the fire but were
unable to prevent damage to the mobile home. Regner sued the fire departments and
several of their employees, alleging negligence. Regner voluntarily dismissed his claim
against the Fort Wainwright Fire Department and its employee, and the remaining
defendants (the “defendants”)1 moved for summary judgment on the basis that they were
immune from suit. The superior court granted complete summary judgment on the
grounds that: (1) the individual defendants were immune from suit; (2) the fire
departments were immune from suit for their discretionary decisions; and (3) Regner
failed to offer any evidence of negligence to rebut the defendants’ “conclusive showing”
that all firefighting activity was done in accordance with generally accepted firefighting
practices.
Regner appeals only the superior court’s decision that he failed to make a
sufficient showing of negligence to defeat summary judgment. Because the defendants
did not move for summary judgment on the merits of Regner’s negligence claims and the
merits of those claims were not otherwise addressed in the summary judgment
proceedings, we reverse. Because Regner did not appeal the superior court’s immunity
decisions, we do not address the merits of those decisions, but we note that the superior
court’s discretionary function immunity decision did not address all of the allegedly
1
We refer to the appellee fire departments and fire department employees
collectively as the “defendants” to avoid confusion when discussing the separate actions
of individual fire department employees, individual fire departments, and the fire
departments collectively.
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negligent actions that the defendants argued were subject to immunity. These remaining
claims are remanded for decision.
II. FACTS AND PROCEEDINGS
This appeal concerns a mobile home fire that occurred on
December 31, 2008, just outside of North Pole. On the afternoon of the fire, Leo Regner,
the mobile home’s owner, received a phone call from the tenant living in the home
informing him that water was not coming out of her kitchen faucet. Regner determined
that the water line had frozen in the -45°F temperature. The water line ran from a small
adjacent well house to the underside of the mobile home. Regner went underneath the
mobile home, removed the insulation, and used a small handheld propane torch to apply
direct heat to the water line. When this proved unsuccessful, Regner and the tenant
entered the well house, and Regner used the torch to heat the line from inside. Regner
noticed that this process caused a black insulation board inside the well house to “glow[]
a little” and smolder, so he scratched out the glowing spot with his finger until it was
cool to the touch. The tenant informed Regner that she thought she smelled smoke, but
Regner responded that he did not smell anything, and the tenant concluded she was
simply noticing the smell of the torch. After successfully restoring water flow to the
kitchen sink, the two left the residence and drove to Fairbanks to run errands.
At approximately 5:53 p.m. the North Star Volunteer Fire Department was
dispatched to a reported structure fire at Regner’s mobile home. Although Regner’s
property is outside of their jurisdictions, the North Pole Fire Department2 and the Fort
2
There is no legal entity known as the “North Pole Fire Department”; rather,
the City of North Pole operates a fire department as part of its city operations. The
superior court rejected North Pole’s argument for summary judgment on the basis that
it was incorrectly named, finding that the wording was “close enough” to provide “ample
notice” of potential liability. North Pole does not challenge this finding on appeal. For
(continued...)
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Wainwright Fire Department were also dispatched pursuant to mutual aid agreements
with the North Star Volunteer Fire Department. The North Pole Fire Department was
the first to arrive on the scene. The North Star Volunteer Fire Department arrived soon
after and assumed command of the fire, with Deputy Chief Jerry Hanson serving as the
officer in command.
The first firefighters to arrive on the scene, North Pole Fire Department
Deputy Chief Geoffrey Coon and Captain David Daniell, were unaware whether the
mobile home was occupied. Coon immediately observed “a single-wide trailer with a
small addition” and “not a whole lot of smoke.” Coon walked up to the front door and
observed “a small amount of fire” between the mobile home and the well house. By
removing his glove and feeling the front door, Coon determined there was a moderate
amount of heat coming from inside the mobile home. Coon then opened the door and
discovered smoke and heat.
Daniell led the firefighters in performing “an initial interior attack.” Daniell
and two other firefighters entered the mobile home with a pressurized hose while
“crawling on [their] . . . knees and staying underneath the heat and smoke.” The
firefighters performed a “search pattern,” which Daniell described as a typical procedure
whereby a crew follows the walls of a building until they discover victims or fire. The
crew followed the wall in a right-hand search pattern, entering the bedroom, then the
living room, and then the bathroom, where they discovered the fire and “started fighting
the fire in the hallway by the bathroom.” Daniell testified that the majority of the fire
was in the bathroom, and it took the crew “ten minutes or less from the time [they
arrived] on the scene” to get the fire under control. Daniell determined that fire from the
2
(...continued)
purposes of consistency this opinion refers to the “North Pole Fire Department” to
describe the actions taken by the fire department.
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well house spreading to the insulation underneath the mobile home had caused the
bathroom fire, so he and his crew remained inside to access the insulation and the
“hidden fires.”
While Daniell and the crew fought the fire from inside the mobile home,
other firefighters performed “outside firefighting functions,” such as “assisting pulling
[the fire hose] line so the guys [could] advance down the hallway, . . . pulling the second
line, . . . trying to set up a positive pressure fan,” and speaking to Regner. Coon prepared
the pressure fan, performed a “walk-around” of the mobile home, and broke out the
windows in order to create ventilation and to allow gas and smoke to exit the home. The
outside firefighters did not apply water to the outside of the mobile home while the other
firefighters were fighting the fire from inside; both Daniell and Coon explained that it is
dangerous for water to be sprayed from outside when firefighters are inside a building.
After the firefighters “attacked” the fire inside the mobile home, there was only “a very
small fire [remaining outside and in the well house] that took less than 10 gallons to put
out.” Coon explained, “[W]e put the fire out from the inside of the trailer to the outside
of the trailer and then finished up on the outside.” The entire fire was extinguished at
approximately 6:45 p.m., 52 minutes after the fire departments were dispatched to the
property.
Regner learned about the fire when, driving back from Fairbanks, he
received a phone call from a neighbor informing him that two fire trucks had just pulled
up to the mobile home. He arrived at the property a few minutes later and saw two fire
trucks and “a glowing fire with sparks between the well-house wall and exterior [m]obile
[h]ome wall.” Regner described initially observing a big glowing ball that was four to
six inches in diameter that had not yet erupted into flames. Regner also stated that he
saw at least one firefighter standing outside, one firefighter dragging a hose outside, and
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a hose going inside the mobile home. Regner perceived that other firefighters had
already entered the mobile home.
According to Regner, he immediately realized that his earlier attempt to
scratch out the smoldering in the well house must have been unsuccessful, and he knew
the fire originated in the well house. Regner got out of the car and ran over to
firefighters standing near the well house to ask them to apply water to the well house, but
the only hose outside was collapsed. When the firefighters did not respond, Regner
entered the mobile home and “[h]oller[ed] at [the firefighters] to bring [the] pressurized
hose outside,” but it was too dark for Regner to see anything, and one of the firefighters
pushed Regner out of the mobile home. When his further efforts to get firefighters to
apply water to the well house proved unsuccessful, Regner decided to take matters into
his own hands: he entered the well house “with the intent to [apply] water from the
water pump” to the glowing spot, but he quickly discovered that the power had been shut
off and the spigot was not producing water. Regner then exited the well house and
jumped on top of the structure in an effort to kick snow from the roof of the well house
onto the outside glowing spot — which, according to Regner, was flaming at this point.
His efforts proved unsuccessful, and another firefighter approached him and asked him
to leave the scene. Regner could not recall ever seeing flames or smoke inside of the
well house.
After more unsuccessful requests that firefighters apply water outside,
Regner again tried to enter the mobile home, but he was pushed outside by a firefighter
wearing a breathing apparatus, and Regner was unable to see what the firefighters were
doing inside. Regner’s ears were getting cold at this point, so he walked next door to the
neighbor’s house to borrow a hat. Convinced something was “drastically wrong” with
the firefighters’ procedure, Regner asked the mobile home’s tenant to accompany him
to the scene of the fire to serve as a witness. Upon returning, Regner saw “four or five
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foot flames above the well-house roof”; this was the only fire Regner ever witnessed.
Regner again tried to enter the mobile home to ask the firefighters to bring the
pressurized hose outside and apply water to the well house, but he was “pushed back
outside.” The firefighters instructed Regner to return in twenty minutes, at which point
their operation would be complete.
Regner reluctantly left the scene for the second time and returned just as the
last fire truck was leaving. Regner, the tenant, and fire commander Hanson surveyed the
damage to the mobile home. The well house was completely intact except for the outer
wall adjacent to the mobile home. A North Star Volunteer Fire Department incident
report estimated the property damage at $10,500, though a contractor Regner hired
estimated the repair costs at $145,000. Regner did not have insurance.
Regner wrote letters to and visited with members of the fire departments
and various local political entities; he demanded an investigation and sought “to hold the
Fire Department[s] accountable for their malicious behavior (rather criminal behavior).”
Unsatisfied with the responses he received, Regner filed suit, pro se, against the North
Star Volunteer Fire Department, the North Pole Fire Department, and the Fort
Wainwright Fire Department, as well as four individuals employed by these departments.
Regner asserted that the North Star Volunteer Fire Department and the North Pole Fire
Department
adamantly would not apply water to the glowing wall of the
well house, and let it turn into a blaze, letting it burn for [30]
to 45 minutes, until the flames melted the metal siding of the
mobile home and entered the structure, totally destroying the
bathroom, interior walls, appliances, furniture, curtains,
windows, etc., all the renter[’s] appliances, belongings and
personal effects[,] etc.
Regner also implied that the three fire departments were involved in a conspiracy against
him. Regner requested the defendants be ordered to repair or replace the damaged
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property and to pay for “loss of rental income and the sum of $225,000.00, plus costs and
interest for punitive damages, . . . for [Regner’s] costs and stress incurred while
conducting informal and formal investigations, . . . for [his] time as pro per attorney,”
and for future costs. Regner voluntarily dismissed his claims against the Fort
Wainwright Fire Department and its employee. The remaining defendants moved for
summary judgment on the grounds of immunity.
The superior court granted complete summary judgment to all of the
defendants on April 30, 2012, and entered final judgment on June 4, 2012. The court
concluded that the individual defendants were immune from suit pursuant to
AS 09.65.070(c).3 The court applied AS 09.65.070(d)(2)4 to conclude that both fire
departments were “municipalit[ies]” as defined by the statute and that both were immune
3
AS 09.65.070(c) provides:
An action may not be maintained against an
employee or member of a fire department
operated and maintained by a municipality or
village if the claim is an action for tort or
breach of a contractual duty and is based upon
the act or omission of the employee or member
of the fire department in the execution of a
function for which the department is
established.
4
AS 09.65.070(d)(2) provides:
An action for damages may not be brought
against a municipality or any of its agents,
officers, or employees if the claim . . . is based
upon the exercise or performance or the failure
to exercise or perform a discretionary function
or duty by a municipality or its agents, officers,
or employees, whether or not the discretion
involved is abused.
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from suit for their discretionary acts, which the court found to include “the decision of
how many fire departments would respond to the fire” and “the policy of using one fire
department to ‘cover’ while another department fights a fire.” Finally, the court ruled
that all the defendants were entitled to summary judgment on the issue of negligence
because Regner failed to offer “any evidence of negligence to rebut the defendants’
conclusive showing that all firefighting activity was done in accordance with generally
accepted firefighting practices.”
Proceeding pro se, Regner appeals only the superior court’s conclusion that
he failed to make a sufficient showing of negligence to defeat summary judgment.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo, reading the record in the
light most favorable to, and drawing all reasonable inferences in favor of, the
non-moving party.5 “We will affirm a grant of summary judgment if there are no
genuine issues of material fact and the prevailing party was entitled to judgment as a
matter of law.”6 “The moving party has the ‘entire burden’ of proving that it is entitled
to summary judgment.”7
5
Russell ex rel. J.N. v. Virg-In, 258 P.3d 795, 801 (Alaska 2011) (citing
Schug v. Moore, 233 P.3d 1114, 1116 (Alaska 2010)).
6
Smith v. State, 282 P.3d 300, 303 (Alaska 2012) (quoting Cragle v. Gray,
206 P.3d 446, 449 (Alaska 2009)) (internal quotation marks omitted).
7
B.R. v. State, Dep’t of Corr., 144 P.3d 431, 433 (Alaska 2006) (quoting
Barry v. Univ. of Alaska, 85 P.3d 1022, 1025-26 (Alaska 2004)).
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IV. DISCUSSION
A. The Superior Court Erred By Granting Summary Judgment On The
Merits Of Regner’s Negligence Claims.
In their motion for summary judgment, the defendants asserted only that
Regner’s claims failed because the individual firefighters were immune from suit and all
of the decisions made and actions taken in the course of fighting the fire were subject to
discretionary function immunity. Nevertheless, the superior court sua sponte addressed
the issue of negligence and concluded that Regner offered “only unfounded speculation”
in support of his negligence claims and that there was “no evidence that the defendants
breached their duty or that they caused Regner any injury.” Regner argues that the
superior court erred by granting summary judgment in favor of the defendants on his
negligence claims because there are genuine issues of material fact that can be decided
only by trial. The defendants respond that the firefighting tactics employed in combating
the fire were not negligent as a matter of law and, in any case, they were immune from
Regner’s claims.
In order to prove his negligence claims, Regner must show that: (1) the
defendants owed him a duty of care, (2) the defendants breached this duty, (3) he was
injured, and (4) his injury was the factual and proximate result of the defendants’
breach.8 But on a motion for summary judgment “the movant has the burden of showing
that there is an absence of a factual dispute on a material fact and that this absence of a
dispute constitutes a failure of proof on an essential element.”9 Because the defendants
8
See Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012)
(“In order to succeed on a negligence claim, a plaintiff must prove duty, breach of duty,
causation, and harm.” (citing Lyons v. Midnight Sun Transp. Servs., Inc., 928 P.2d 1202,
1204 (Alaska 1996))).
9
Greywolf v. Carroll, 151 P.3d 1234, 1241 (Alaska 2007) (citations
(continued...)
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did not move for summary judgment on the merits of Regner’s negligence claims, the
defendants have obviously not met their burden. Equally obvious, because the
defendants moved for summary judgment only on the basis of immunity, Regner was not
put on notice that he needed to adduce facts, other than those relating to the applicability
of the immunity statutes, in order to survive summary judgment.10 Accordingly, because
issues of negligence were not raised in the summary judgment motion, the superior court
erred by granting summary judgment in favor of the defendants on the merits of Regner’s
negligence claims. We reverse the grant of summary judgment on Regner’s negligence
claims and remand for further proceedings.
B. The Superior Court’s Immunity Decisions Do Not Dispose Of All Of
Regner’s Claims.
The superior court granted immunity to each of the individually named
defendants under AS 09.65.070(c), which protects fire department employees from tort
claims arising from the execution of their duties. The court also granted discretionary
function immunity to the fire departments under AS 09.65.070(d)(2) with regard to two
specific decisions Regner challenged. Because Regner does not challenge the superior
court’s immunity decisions on appeal, we do not address the merits of these decisions.
But the superior court’s grant of discretionary function immunity did not dispose of all
of Regner’s claims against the fire departments. Thus, the superior court could not grant
complete summary judgment on the basis of immunity. On remand, the court must
9
(...continued)
omitted).
10
See B.R., 144 P.3d at 433 (“[U]nless the moving party points to undisputed
facts or admissible evidence establishing a prima facie case entitling it to summary
judgment as a matter of law, the opposing party has no obligation to produce evidence
supporting its own position.” (citation omitted)).
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further consider the motion for summary judgment on immunity grounds in light of the
fire departments’ actions and decisions that Regner challenges.11
Alaska Statute 09.65.070(d)(2) immunizes municipalities and their agents,
officers, and employees from civil liability for claims “based upon the exercise or
performance or the failure to exercise or perform a discretionary function or
duty . . . whether or not the discretion involved is abused.” In determining which
municipal decisions qualify as “discretionary functions” protected from suit, we have
consistently distinguished between planning decisions and operational decisions.12 A
planning decision “involves policy formulation” and is protected from liability, whereas
an operational decision “involves policy execution or implementation” and is not entitled
to immunity.13 Thus, the “decision to engage in an activity is an immune ‘planning’
decision, while the decisions undertaken in implementing the activity are operational, as
11
Cf. id. at 437 n.31 (discussing superior court’s obligation to independently
examine the record before concluding that movant is entitled to complete summary
judgment).
12
See, e.g., Pauley v. Anchorage Sch. Dist., 31 P.3d 1284, 1285 (Alaska
2001) (defining discretionary actions as “those that require personal deliberation,
decision and judgment” (citations and internal quotation marks omitted)); City of Seward
v. Afognak Logging, 31 P.3d 780, 786 (Alaska 2001) (citing Adams v. City of Tenakee
Springs, 963 P.2d 1047, 1050 & n.3 (Alaska 1998)); State, Dep’t of Transp. & Pub.
Facilities v. Sanders, 944 P.2d 453, 456 (Alaska 1997) (noting that we identify those
actions entitled to immunity “by examining whether the act or function can be described
as ‘planning’ or ‘operational’ ” (quoting State v. Abbott, 498 P.2d 712, 720-22 (Alaska
1972))).
13
Kiokun v. State, Dept. of Pub. Safety, 74 P.3d 209, 215 (Alaska 2003)
(citing Sanders, 944 P.2d at 456); see Afognak Logging, 31 P.3d at 786 (“Discretionary
function immunity precludes liability for harm caused by the type of planning decisions
that involve policy formulation. In contrast, operational decisions — those made while
executing or implementing existing policies — are not immune.” (internal citations
omitted)).
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long as the implementation does not involve the consideration of policy factors.”14
“Under the planning/operational test, ‘liability is the rule, immunity the exception.’ ”15
In Angnabooguk v. State, we addressed certain firefighting decisions that
were properly considered “discretionary” for purposes of state discretionary function
immunity.16 We rejected the argument that all firefighting decisions are necessarily
discretionary because they all involve policy formulation.17 Instead, we observed that
certain “aspects of firefighting . . . can have an obvious planning or policy basis.”18 Such
aspects may include “the number and location of fire stations, the amount of equipment
to purchase, the size of fire departments, and other aspects involving the allocation of
financial resources.”19 “[O]n-the-scene firefighting tactical decisions” such as the
decision whether to use a backfire may also be discretionary “because they entail
resource allocation decisions or considered decisions of firefighting policy that are
properly vested in the officials in charge.”20 By contrast, we explained that other
firefighting decisions that do not involve considerations of policy “are clearly
14
Angnabooguk v. State, 26 P.3d 447, 456 (Alaska 2001) (emphasis added).
15
Sanders, 944 P.2d at 456 (quoting Johnson v. State, 636 P.2d 47, 64
(Alaska 1981)).
16
26 P.3d at 454-59.
17
Id. at 456.
18
Id. at 458 (quoting Harry Stoller & Co., Inc. v. City of Lowell, 587 N.E.2d
780, 785 (Mass. 1992)) (internal quotation marks omitted).
19
Id. at 458-59 (citations omitted); see Adams v. City of Tenakee Springs,
963 P.2d 1047, 1051 (Alaska 1998) (holding that city’s decision whether to allocate
funds to hire firefighters was an immune planning decision).
20
Angnabooguk, 26 P.3d at 459 (citation omitted).
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operational.”21 We suggested that such decisions likely include the decision to use lower
water pressure, rendering a sprinkler system inoperable,22 the decision not to build a
firewall, and the decision not to post lookouts to watch a burnout.23
The decisions specifically challenged by Regner were: (1) the number of
fire trucks and firefighters allocated to fight the fire; (2) using one fire department to
“cover” another fire department; (3) the decision to enter the mobile home and apply
water inside before addressing the fire outside; (4) the refusal to apply water to the well
house in direct disregard of Regner’s demands; (5) the refusal to allow Regner to combat
the fire himself; and (6) the decision to let the fire “turn into a blaze . . . until the flames
melted the metal siding of the mobile home and entered the structure.”
The superior court concluded that “the decision of how many fire
departments would respond to the fire was a policy decision entitled to discretionary
function immunity,” as was “the policy of using one fire department to ‘cover’ while
another department fights a fire.” As explained above, Regner does not contest these two
rulings on appeal, but the superior court did not address the other decisions Regner
challenged, and we are unable to conclude that the court implicitly found that the
remaining decisions were immune planning decisions. Because the superior court did
not address all of the challenged fire department decisions, we remand so that it can do
so.
21
Id.
22
Id. (citing Harry Stoller & Co., Inc., 587 N.E.2d at 784).
23
Id.
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V. CONCLUSION
For the foregoing reasons we REVERSE the superior court’s grant of
summary judgment on Regner’s negligence claims and REMAND for further
proceedings consistent with this opinion.
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