Angnabooguk v. State
| Decision Date | 13 July 2001 |
| Docket Number | No. S-9439.,S-9439. |
| Parties | Johnny L. ANGNABOOGUK, Phyllis Backhaus, Alvin O. Bramstedt, James and Marilyn Garrison, Garr and Joanne Graham, April A. Halliday-Sandahl, John E. Hodge, Donald E. and Romola A. Loesche, William E. and Lucille Magee, Sr., Curtis and Lorri Patterson, and Alice White, Appellants, v. STATE of Alaska, Department of Natural Resources, Division of Forestry, Appellee. |
| Court | Alaska Supreme Court |
Peter Gruenstein and Daniel Hickey, Gruenstein & Hickey, Anchorage, and John H. Hinderaker and Gerald M. Nolting, Faegre & Benson, LLP, Minneapolis, MN, for Appellants.
William F. Morse, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before FABE, Chief Justice, MATTHEWS, and CARPENETI, Justices.
In June 1996 the Miller's Reach Fire burned over 37,000 acres in the Matanuska-Susitna Valley. The State, Department of Natural Resources, Division of Forestry responded to the initial fire and took control of firefighting operations from the local fire departments present at the scene. A group of plaintiff landowners who suffered damage to their homes and property brought suit, claiming that the State's firefighting activities were negligently conducted. The plaintiffs' claims were dismissed by the superior court below on the basis of discretionary function immunity under AS 09.50.250, and attorney's fees were awarded to the State. The plaintiffs have appealed these decisions. Because we conclude that the plaintiffs have alleged a set of facts that is consistent with an enforceable cause of action, and that the State is not immune as a matter of law under AS 09.50.250, we reverse the judgment of the superior court.
Because this is an appeal from an Alaska Civil Rule 12(b) dismissal, we will assume that the plaintiffs' factual allegations are true.1
This appeal concerns the Miller's Reach Fire that burned from June 2 through June 15, 1996 in the Matanuska-Susitna Valley. This fire burned over 37,000 acres and destroyed more than 500 homes.
On June 2, 1996, the initial fire began near a residential development in Houston, Alaska. Local volunteer fire departments from Houston, Big Lake, Willow, and Meadow Lake responded to the fire and fought the fire during the evening of June 2. During the evening of June 2 the local fire departments successfully brought the fire under control.
The State, Department of Natural Resources, Division of Forestry (Forestry) also responded to the fire on the evening of June 2, and assumed control of the fire suppression effort. Even though the fire was not completely extinguished, during the night of June 2 Forestry sent the local fire departments and most of their equipment back to their stations. Forestry conducted no firefighting activities during the night of June 2.
On the morning of June 3 the local fire departments returned to the scene, but were again sent away by Forestry's incident commander on the scene. The forces sent away by Forestry represented the majority of the resources available to fight the fire. The local fire departments had firefighting equipment at the scene including a fire engine that was capable of putting 1,000 gallons of water per minute on the fire. However, Forestry had only portable pumps with much smaller capacity. Forestry's incident commander and the remaining forces under his control spent the morning of June 3 removing hoses that had been placed around the perimeter of the fire by the local fire departments. These forces then replaced these hoses with Forestry's own hoses. During the morning of June 3 Forestry personnel did not put any water on the fire and did not construct any sort of mineral-soil firewall to keep the fire from spreading.
On the afternoon of June 3 Forestry employees started one or more burnouts—fires set deliberately to dispose of unburned fuel that could assist the spread of the fire—near the perimeter of the fire. At this time Forestry did not have adequate resources available to suppress one of these burnouts if one were to burn out of control.
One of the burnouts did burn out of control in the afternoon and evening of June 3. The Forestry employee who started the out-of-control burnout sought help from other Forestry employees, and these personnel attempted to extinguish the burnout. However, at approximately 6:00 p.m. on June 3 the incident commander ordered all personnel on the scene to stop their firefighting activities and vacate the perimeter of the fire, and to gather at the Little Susitna River for dinner. The Forestry employees who had been dealing with the out-of-control burnout vacated the scene of the fire along with all other personnel at the scene. No lookouts or other personnel were posted on the perimeter of the fire at this time.
While the firefighting personnel were eating dinner at the Little Susitna River, shortly after 6:00 p.m., a column of smoke from the out-of-control burnout rose and was clearly visible to hundreds of people including Forestry's incident commander. At this time, some of Forestry's personnel, federal "smoke jumpers," also observed the column of smoke and radioed the incident commander to ask if any action should be taken. The incident commander told them not to worry about it, claiming (incorrectly) that the fire was not a problem because it was within the perimeter of the fire area.2 The incident commander did not check the location of the fire and did not actually know where it was.
The federal smoke jumpers who spoke with the incident commander disregarded the incident commander's instructions and investigated the column of smoke. The smoke jumpers found the out-of-control burnout and attempted to extinguish it. Other personnel were summoned to the area to help with these efforts. Attempts to extinguish the burnout were hampered because the local fire departments' hoses and fire engine were no longer available, and because Forestry employees had turned off the Forestry pumps during the 6:00 p.m. dinner. After reactivating the pumps, Forestry personnel continued their attempts to extinguish the burnout, but before they could do so, the burnout "spotted"3 and started a second fire, which the firefighting personnel on the scene were unable to reach. This second fire crossed Miller's Reach Road and became the "Miller's Reach Fire" that consumed 37,000 acres.
Two suits were brought in superior court by different groups of landowner plaintiffs against Forestry: the case at bar, before Superior Court Judge John Reese, and Bartek v. State of Alaska, Department of Natural Resources, before Superior Court Judge Beverly Cutler.4 On July 20, 1999, Forestry moved to dismiss the complaint in this case, under three different theories: that the action was barred by the statute of limitations; that the State lacked a duty of care; and that the State was immune under the Alaska Tort Claims Act, AS 09.50.250. Judge Reese dismissed the case on immunity grounds without mentioning the other two theories. In doing so, Judge Reese adopted the oral ruling of Judge Cutler, who had earlier dismissed the Bartek action on the same grounds.5
After the dismissal, the superior court granted attorney's fees to Forestry under Civil Rule 68.
The plaintiffs have appealed the dismissal and the award of attorney's fees.
This appeal requires us to review the superior court's grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. We will review this dismissal de novo, assuming the truth of all facts alleged in the complaint.6 We have explained that "[b]ecause complaints must be liberally construed, a motion to dismiss under Rule 12(b)(6) is viewed with disfavor and should rarely be granted."7 A complaint need only allege a set of facts "consistent with and appropriate to some enforceable cause of action."8 Therefore, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims that would entitle the plaintiff to relief.9
The superior court dismissed the plaintiffs' claims based on Forestry's discretionary function immunity under AS 09.50.250. However, in this appeal Forestry also claims that dismissal is proper because Forestry owed the plaintiffs no actionable duty of care. Even though the court below did not rule on the existence of a duty of care, we have stated that "[d]etermining whether a duty exists in [a case alleging negligence by the State] is the first analytical step in deciding whether a negligence action can be maintained."10
Therefore, the dismissal below could be affirmed on one of two grounds:11 (1) Forestry owed no actionable duty of care to the plaintiffs, or (2) Forestry was immune from suit under AS 09.50.250. We conclude that neither of these grounds supports dismissal.
A duty of care may arise either from statutory sources or from public policy.12
Three possible sources for a statutory duty of care are mentioned by the parties, and each of these will be discussed in turn: (1) AS 41.15.110(a); (2) 11 Alaska Administrative Code (AAC) 95.400-.495; and (3) Forestry's internal rules and guidelines.
The plaintiffs claim that Forestry owed the plaintiffs a statutory duty of care to fight the fire non-negligently under AS 41.15.110(a). That statute provides:
Uncontrolled spread of fire; leaving fire unattended. (a) A person who knows of a fire or sets a fire on forested land owned, possessed, or controlled by the person, shall exercise due care to prevent the uncontrolled spread of the fire. A person failing to exercise due care which results in spread of the fire and...
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