Adams v. State

Citation555 P.2d 235
Decision Date01 October 1976
Docket NumberNo. 2326,2326
PartiesThomas L. ADAMS et al., Appellants, v. STATE of Alaska et al., Appellees.
CourtSupreme Court of Alaska (US)

Robert M. Libbey and Douglas J. Serdahely, of Libbey & Serdahely, Anchorage, for appellants.

Warren W. Matthews, Jr., of Matthews, Dunn & Baily, Anchorage for appellees.

Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and BURKE, JJ.

OPINION

BURKE, Justice.

This appeal presents the question of whether the State of Alaska can be held liable for its part in the tragedy of the Gold Rush Hotel fire. In the early morning hours of January 13, 1970, the Gold Rush Hotel in Anchorage caught fire and rapidly burned to the ground. Five people, trapped in the hotel, died in the blaze; several others were injured in their escape.

Appellants, who include some of those injured and the personal representatives of those who died, filed suit for their damages, naming, among others, the state as defendant. The state moved for judgment on the pleadings, admitting, for the purposes of the motion, the facts as alleged by the plaintiffs. The motion for judgment on the pleadings was granted on behalf of the state, and the plaintiffs brought this appeal.

Pursuant to Rule 12(c), 1 Alaska Rules of Civil Procedure, we will treat this as an appeal from an order granting summary judgment, since matters outside the pleadings were presented to the trial court, and not excluded. For a motion for summary judgment to be granted, there must be no genuine issue of material fact to be resolved by the trier of fact, and the moving party must be entitled to judgment on the law applicable to the established facts. 2 By admitting the facts as alleged by the plaintiffs, for the purposes of the motion and this appeal only, the state has removed any issue of fact. Therefore, we must determine whether the superior court correctly held that, as a matter of law, the state could not be held liable for its admitted negligent failure to abate the known fire hazards in the Gold Rush Hotel.

The following statutes were in effect at the time of the fire:

AS 18.70.010. General function of Department of Public Safety with respect to fire protection. The Department of Public Safety shall foster, promote, regulate, and develop ways and means of protecting life and property against fire, explosion, and panic.

AS 18.70.020. Duties of Department of Public Safety. The Department of Public Safety shall aid in the enforcement of all laws and ordinances and the rules and regulations adopted under §§ 10-100 of this chapter and all other laws relating to fires or to fire prevention and protection, and shall encourage the adoption of fire prevention measures by means of education, and shall prepare or have prepared for dissemination information relating to the subject of fire prevention and extinguishment.

AS 18.70.050. Power of department to inspect buildings. The Department of Public Safety may enter any building subject to regulation under § 80 of this chapter during reasonable hourse for the sole purpose of inspecting the property or abating a fire hazard.

AS 18.70.070. Abatement of fire hazards. The Department of Public Safety may require the owner of a commercial business or public property to abate a fire hazard which exists in violation of law or regulations, and the Department of Public Safety may take appropriate action to assure such abatement.

AS 18.70.080. Regulations. The Department of Public Safety shall adopt rules and regulations for the purpose of protecting life and property from fire and explosion by establishing minimum standards for

(1) fire detection and suppression equipment;

(2) fire and life safety criteria in commercial, industrial, business, institutional or other public building, and buildings used for residential purposes contaning four or more dwelling units;

(3) any activity in which combustible or explosive materials are stored or handled in commercial quantities;

(4) conditions or activities carried on outside a building described in (2) or (3) of this section likely to cuase injury to persons or property.

AS 18.70.090. Enforcement of regulations. The Department of Public Safety and the chief of each city fire department and their authorized representatives in their respective areas may enforce the rules and regulations adopted by the Department of Public Safety for the prevention of fire or for the protection of life and property against fire or panic. . . .

Pertinent regulations, adopted pursuant to AS 18.70.080, and in effect at the time of the fire were:

13 AAC 55.050. INSPECTIONS OF BUILDINGS AND PREMISES.

(a) It is the duty of the state fire marshal to inspect or have inspected by the division of fire prevention:

(1) all commercial, industrial, business, institutional, or other public building (sic) or in an activity where combustible or explosive materials are stored or handled in commercial quantities;

(2) buildings used for residential purposes and containing four or more dwelling units; or conditions or activities carried on outside such buildings liable to cause fire or endanger life from fire.

(b) The state fire marshal or his duly authorized representative shall upon receiving a complaint that a fire hazard exists in an occupancy specified in chapters 50-55 of this title inspect or have the property inspected at his earliest convenience and insure compliance with chapters 50-55 of this title.

13 AAC 55.060. ORDERS TO ELIMINATE DANGEROUS OR HAZARDOUS CONDITIONS.

(a) When an inspector of the division of fire prevention finds a building or premises on which the following danagerous conditions or materials exist, he shall order the dangerous conditions or materials to be removed or remedied in such manner as may be specified by the state fire marshal:

(6) a building or structure which for want of repairs, lack of adequate exit facilities, automatic or other fire alarm aparatus or fire extinguishing equipment, or by reason of age or dilapidated condition, or from any other cause, creates a hazardous condition.

(b) The state fire marshal shall post at the entrance to a building or premises described in (a) of this section a notice to read, 'DO NOT ENTER, UNSAFE TO OCCUPY. DEPARTMENT OF PUBLIC SAFETY, DIVISION OF FIRE PREVENTION'. The notice shall remain posted until the required repairs, demolition or removal are completed. The notice may not be removed without written permission of the state fire marshal and no person may enter the building except for the purpose of making required repairs, or demolishing the building.

The allegations upon which the appellants base their cause of action indicate that the state had undertaken to inspect the Gold Rush Hotel for fire safety. In April, 1969, more than eight months before the fire three fire inspectors, including an assistant state fire marshal (Hildreth) and the Chief Inspector of the State Fire Marshall's office (Crouse), inspected the Gold Rush. They discovered several hazardous conditions. The manager was promised a letter detailing all the violations in order that he might correct the deficiencies.

At that point, and up until the fire, construction was in progress on the third floor of the hotel. This resulted in substantial stantial exposure of wooden framing and storage of building materials, which in the opinion of the assistant state fire marshal constituted a significant fire hazard, because of the overnight occupancy of the hotel.

Among the hazards discovered was an inoperative fire alarm system. 3 The alarms wiring and pull boxes of the system were in place, so that it appeared to be functional. However, the system had never been connected, although according to the hotel manager it would have taken only a matter of hours to wire the system to give a general alarm. In place of the alarm system, the hotel had intended to rely on use of the switchboard and telephone system to alert guests in the event of a fire. On the night of the fatal fire, flame and smoke apparently precluded any attempt to use this system, and the desk clearks were only able to pound on the doors of the rooms in one section of the first floor before being required to flee. At least three of those who died in the fire were in rooms on the second floor. 4

Shortly after the April, 1969, inspection, Hildreth sent a wire to his immediate superior, State Fire Marshall Dawson, stating:

Made cursory inspection of Gold Rush Motor Lodge this a. m. Building presents extreme life hazard in that it fails to meet minimums of State Fire Safety Code. I respectfully ask you to travel to Anchorage as soon as possible to assist in this matter. (emphasis added)

Despite the concern expressed in this wire, little further action appears to have been taken by the state. Even when the hotel manager reminded Crouse in late May, 1969, that he had been promised a letter outlining steps to be taken to correct any deficiencies, there was no action taken.

It is not the policy of the state fire marshal's office to ignore fire hazards in hotels. Upon discovery of a fire hazard, the established procedure would have been to serve two notices of deficiency, and then, if necessary, procure a court order to abate the hazard. In other instances, the fire marshal has required that hotels put in an alarm system; in one instance, a hotel was required to mount a fire watch throughout the night until the alarm system functioned. Furthermore, Section (b) of 13 AAC 55.060 requires the state fire marshal to post at the entrance of a building which creates a hazardous condition a notice reading: 'DO NOT, ENTER UNSAFE TO OCCUPY. DEPARTMENT OF PUBLIC SAFETY, DIVISION OF FIRE PREVENTION.' Yet the state took no action with regard to the hazards discovered at the Gold Rush; guests of the hotel received no warning that the hazards existed, and the management was not put under any pressure to remedy the hazards.

The state fire marshal's office has a general policy of deferring to local...

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