Northern Lights Motel, Inc. v. Sweaney

• Decision Date: 25 February 1977
• Docket Number: No. 2476,2476
• Citation: 561 P.2d 1176
• Parties: NORTHERN LIGHTS MOTEL, INC., Appellant, v. Avonna SWEANEY, as personal representative of Kenneth G. Stumbaugh, Deceased, Appellee.
• Court: Alaska Supreme Court

Page 1176

561 P.2d 1176

NORTHERN LIGHTS MOTEL, INC., Appellant, v. Avonna SWEANEY, as personal representative of Kenneth G Stumbaugh, Deceased, Appellee.

No. 2476.

Supreme Court of Alaska.

Feb. 25, 1977.

Rehearing Denied May 6, 1977. See 563 P.2d 256.

Peter A. Galbraith and Murphy L. Clark, Anchorage, for appellant.

Joseph L. Young and W. Michael Moody, Atkinson, Conway, Young, Bell & Gagnon, Inc., Anchorage, for appellee.

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

CONNOR, Justice.

In the early morning hours of September 19, 1972, Kenneth Stumbaugh died in a fire while staying at the Northern Lights Motel in Anchorage, Alaska. His personal representative sued the motel and was awarded a total judgment of $313,650.82 after a trial by jury. Northern Lights Motel, Inc., appeals from the judgment on a variety of grounds. The central issues on appeal concern the application of the doctrine of negligence per se.

The fire started in a chair in room 15 and spread to room 10 where Stumbaugh was staying. It was not determined at trial whether it was caused by a lighted cigarette left in the chair by the room occupants or whether it was deliberately set by an arsonist. ¹

The fire was discovered by two men, Magnuson and Nyquist, while they were driving along Fireweed Lane. After learning from the deceased's roommate that Stumbaugh was still in his room, Magnuson attempted a rescue. He entered the smokefilled room, located Stumbaugh, and tried to drag him out, feet first. Stumbaugh struggled and kicked, grabbing a table and chair to prevent being pulled. As Magnuson reached the door and breathed some fresh air, Stumbaugh kicked loose and moved back into the room. At about that time, 'whatever it was that was smoldering in there burst into flames,' and Magnuson was prevented from going back into the room. After several unsuccessful attempts to put out the flames, he and Nyquist went on to get the rest of the occupants out of the building. Stumbaugh died from carbon monoxide asphyxia, according to the autopsy report.

The Northern Lights Motel was originally used as an apartment building. It was not converted into a motel until 1970. It was built in two wings, in 1964 and 1966 respectively, by Jack Cox and his employee Tony Rayhoe. Mr. Cox and his wife owned the property as tenants by the entirety. After Mr. Cox's death on July 4, 1968, the property passed to Mrs. Cox by operation of law. On July 1, 1970, Mrs. Cox transferred the property to Northern Lights Motel, Inc., of which she is the sole shareholder.

After the 1966 addition was built the second floor of the motel had approximately 3,300 square feet of floor area. The cost of the 1966 (east-west) wing was at least equal to the cost of the 1964 (north-south) wing, and possibly more.

The motel was largely constructed of three-eighths to one-half inch plasterboard or sheetrock. The thickness of plasterboard required for one-hour fire-resistent construction is five-eighths inch. In addition, there was testimony that the ceiling of the east-west wing (in which the fire started) was only constructed of fiberboard ('bat boards') instead of plasterboard. The ceiling of the north-south wing, in which Stumbaugh's room was located, was of 1/2 inch sheetrock. In at least one wing the wall terminations separating the apartment ceilings did not extend fully into the ceiling. As a result the fire burned along the ceiling and around the walls into adjoining rooms. ² Proper plasterboard ceilings might have cured this deficiency.

The Northern Lights Motel was inspected by the borough fire department twice before the fire. Various deficiencies were noted, including a need to enclose the furnace room in one-hour construction, and these were promptly remedied by the management. The inspector failed to note the construction of the east-west wing, although his report indicated the north-south ceiling construction. The borough department did not consider the building to be a threat to human life. Borough Fire Chief Hildreth did testify, however, that had be known of the ceiling construction in the east-west wing he would have required additional safety devices. In 1970 the department considered the building to be an 'existing building' under the state fire code, including the Uniform Building Code. The department permitted such buildings to continue operating without one-hour construction or alternative safeguards such as sprinkler systems or smoke detectors, as long as the department determined that they presented no unreasonable threat to human life.

After the close of evidence and argument by counsel, the jury was given the following instructions, among others:

'INSTRUCTION No. 21

You are instructed that the Alaska Administrative Code in effect at the time the second wing was added to the Northern Lights Motel required compliance with certain requirements of the 1955 edition of the Uniform Building Code. The requirements of said code, as they concern this case, read as follows:

Sec. 1301 Group H occupancies shall be: Hotels, apartment houses, dormitories, lodging houses

Sec. 1302(b) Group H occupancies-having more than three thousand square feet (3000 sq ft) of floor area above the first floor shall be of not less than one-hour fire-resistive construction throughout.'

'INSTRUCTION No. 22

If you find from a preponderance of the evidence that the defendant violated any of the provisions of the law just read to you and that any such violation legally caused the accident in question, you are instructed that the party who has proven this has established a prima facie case that the other party was negligent. This prima facie case of negligence is not conclusive. It may be overcome by the evidence showing that under all the circumstances surrounding the event in question that that party's conduct was excusable or justifiable.

To show that a violation of law was excusable or justifiable, so as to overcome this prima facie case of negligence, in the event you find the defendant violated any of the foregoing provisions of law, such party must convince you, the jury, that any such violation of law resulted from causes or things beyond the control of such party and that he was not negligent.

If, in accordance with these instructions, you find that the defendant has violated the law and that any such violation legally caused the accident in question, and you further find that defendant has failed to so excuse or justify such violation of law, then you must find that the defendant was negligent.'

Defendant asserts that these instructions were erroneous on a number of grounds. Since the heart of plaintiff's case concerned negligence per se and the Uniform Building Code, any error would require reversal.

I. Incorporation of the Uniform Building Code in Alaska Law

13 AAC § 50.020(a) (1971), in effect at the time of the fire, provided:

'Codes and standards contained in U.B.C. Volumes 1 through 4, AIA Article 11, and NFPA Volume 4 are adopted to regulate area, height, fire resistive construction, maintenance, and number, size, type, location and marking of exits for all occupancies.'

13 AAC § 02.400(b) (1959), effective during the period in which the motel was built, provided:

'Compliance with the 1955 Edition of the Uniform Building Code of the Pacific Coast Building Officials Conference and all future amendments thereto shall be minimum requirements for height, fire resistant construction, installed fire extinguishing and fire alarm systems, number, size, type and arrangements of exits for all . . . roadhouses, hotels, motor courts, . . . or similar places of assemblage of any capacity.'

Defendant contends that 13 AAC § 2.400(b), the prodecessor to 13 AAC § 50.020(a), is ineffective for two reasons: (a) the reference to future amendments is an unconstitutional delegation of power to a private, nongovernmental organization, and hence invalidates the entire section; and (b) the Administrative Code did not and does not provide the public with any information on how to obtain copies of the 1955 Uniform Building Code (U.B.C.), or its amendments, and hence is invalid. If the U.B.C. was not properly incorporated into the regulations, defendant contends, it should not have been used to provide a negligence per se standards.

Defendant argues that it was not permissible to adopt the U.B.C. with 'all future amendments thereto' as 13 AAC § 02.400(b) purported to do because this in effect delegates the future lawmaking power of the state to a private organization, the Pacific Coast (now International) Building Officials Conference, ³ in violation of the constitutional doctrine of nondelegation to private parties. ⁴

One reason for the prohibition against delegation to private groups is that when amendments are adopted by these groups the public does not necessarily receive notice of, or have an opportunity to comment on or criticize the amendments, as it does when they are adopted by the legislature or promulgated under the Alaska Administrative Procedure Act. See AS 44.62.190; AS 44.62.210(a); Agnew v. Culver City, 147 Cal.App.2d 144, 304 P.2d 788, 796 (1956). ⁵ While the adoption of future amendments has been upheld in certain cases, ⁶ we recognize that the due process problem is a serious one. ⁷

This does not mean that the jury instructions based on the Uniform Building Code were necessarily invalid. It is undisputed that the only difference in language between the 1955 and 1970 editions of the Code in the relevant sections was that the words 'first floor' were changed to 'first story' in § 1302(b).

We affirm the trial court's holding that the future amendments clause of the regulation is separable from the rest of the administrative regulation, leaving the 1955 U.B.C. provisions applicable. Because there was no significant change in the U.B.C. provisions as they pertain to this case, it follows that the trial court properly instructed the jury on this issue....