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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Regner v. North Star Volunteer Fire Dept., Inc. (4/11/2014) sp-6891

Regner v. North Star Volunteer Fire Dept., Inc. (4/11/2014) sp-6891

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                     

         corrections@appellate.courts.state.ak.us.  



                   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.                                           )  

                                                      )        O P I N I O N  

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.  


----------------------- Page 2-----------------------

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  



                                            1 

                                               

defendants (the "defendants")  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.  



                                                              -2-                                                           6891  


----------------------- Page 3-----------------------

                                                                                                                                               

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 -45F 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  



                                                                                                                                                     2 

                                                                                     

property is outside of their jurisdictions, the North Pole Fire Department  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...)  



                                                                                      -3-                                                                              6891
  


----------------------- Page 4-----------------------

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.  



                                                              -4-                                                           6891  


----------------------- Page 5-----------------------

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  



                                                              -5-                                                        6891
  


----------------------- Page 6-----------------------

                                                                                                     

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  



                                                                 -6-                                                          6891
  


----------------------- Page 7-----------------------

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  



                                                             -7-                                                       6891
  


----------------------- Page 8-----------------------

                                                                   

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  



                          3                                                            4  

AS 09.65.070(c).   The court applied AS 09.65.070(d)(2)  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.  



                                                             -8-                                                        6891
  


----------------------- Page 9-----------------------

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  



                             5  

non-moving  party.     "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  



                       6  

                                                               

matter of law."           "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)).  



                                                                -9-                                                         6891
  


----------------------- Page 10-----------------------

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'  



           8 

                                                                                                    

breach.   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  



                                                                                              9  

dispute constitutes a failure of proof on an essential element."   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...)  



                                                               -10-	                                                         6891
  


----------------------- Page 11-----------------------

                                                                                                                    

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  



                                                                                                10 

                                                                                                    Accordingly, because  

of the immunity statutes, in order to survive summary judgment. 



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)).  



                                                               -11-	                                                        6891
  


----------------------- Page 12-----------------------

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  



                     13  

                                                                                                     

to immunity.             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)).  



                                                                 -12-                                                           6891
  


----------------------- Page 13-----------------------

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  



                16  

immunity.           We rejected the argument that all firefighting decisions are necessarily  



                                                                                        17  

discretionary because they all involve policy formulation.                                  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  



                                19  

                                      "[O]n-the-scene  firefighting  tactical  decisions"  such  as  the  

financial  resources." 



decision  whether  to  use  a  backfire  may  also  be  discretionary  "because  they  entail  



                               

resource  allocation  decisions  or  considered  decisions  of  firefighting  policy  that  are  

                                                                    20   By  contrast,  we  explained  that  other  

properly  vested  in  the  officials  in  charge."       



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).  



                                                              -13-                                                         6891
  


----------------------- Page 14-----------------------

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.  



                                                             -14-                                                           6891  


----------------------- Page 15-----------------------

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.  



                                                     -15-                                              6891
  

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