S. Griffin Const., Inc. v. City of Lewiston, No. 25554.

• Court: United States State Supreme Court of Idaho
• Writing for the Court: KIDWELL, Justice
• Citation: 135 Idaho 181,16 P.3d 278
• Docket Number: No. 25554.
• Decision Date: 22 December 2000
• Parties: S. GRIFFIN CONSTRUCTION, INC. and Sean G. Phillips, Plaintiffs-Appellants, v. CITY OF LEWISTON, and its employees, Charles Borcich, Building Inspector, and Bud Van Stone, Public Works Director; City of Lewiston Fire Department, and its employees, Thomas Tomberg, Fire Chief, Dave Oglesbee, Fire Marshall; A & R Construction, Inc.; William F. Albright, doing business as M.L. Albright & Sons, a sole proprietorship; and Peter Bowling, Defendants-Respondents.

16 P.3d 278
135 Idaho 181

S. GRIFFIN CONSTRUCTION, INC. and Sean G. Phillips, Plaintiffs-Appellants,
v.
CITY OF LEWISTON, and its employees, Charles Borcich, Building Inspector, and Bud Van Stone, Public Works Director; City of Lewiston Fire Department, and its employees, Thomas Tomberg, Fire Chief, Dave Oglesbee, Fire Marshall; A & R Construction, Inc.; William F. Albright, doing business as M.L. Albright & Sons, a sole proprietorship; and Peter Bowling, Defendants-Respondents

No. 25554.

Supreme Court of Idaho. Lewiston, October 2000 Term.

December 22, 2000.

16 P.3d 280

Landeck, Westberg, Judge & Graham, P.A., Moscow, for appellants. Ronald J. Landeck argued

Don L. Roberts, Lewiston City Attorney; Clements, Brown & McNichols, P.A., Lewiston; Paine, Hamblen, Coffin, Brooke & Miller, LLP, Spokane and Coeur d'Alene, for respondents.

Don L. Roberts argued for respondent, City of Lewiston; Peter C. Erbland argued for respondent, A & R Construction.

16 P.3d 279

KIDWELL, Justice

Plaintiff-Appellant Griffin appeals from the district court's grant of summary judgment: 1) dismissing defendant A & R, the wrecking ball operator, from the case; 2) determining that an emergency had properly been declared by the City of Lewiston under the State Disaster Preparedness Act; and 3) construing the Disaster Preparedness Act to provide immunity to all respondents for a period of seven days.

I.

FACTS AND PROCEDURAL HISTORY

On March 4, 1994, a large fire broke out in the downtown area of Lewiston, Idaho. The fire started in the Weisgerber building and spread to the adjacent Beehive and Beach buildings. City officials, including Bud Van Stone, the Public Works Director, and Mark Arneson, Mayor Pro Tem, arrived at the scene on that morning. The Lewiston City Council met at the scene and passed Resolution No. 94-40, thus declaring a state of emergency.

A & R, a demolition company, was called to the scene by Van Stone, but was asked to delay any demolition work until the FBI arson team had inspected the site. After the city council resolution was passed, A & R was told by the Fire Chief, Thomas Tomberg, that an emergency had been declared and that A & R was to demolish certain walls. Later that day, A & R knocked down specific walls of the Weisgerber, Beach and Beehive buildings under the direction of Tomberg.

The Adams building stood adjacent to the Beach building and shared a common wall. The second and third floors of the Adams

16 P.3d 281

building were in the process of being remodeled to be used as rental units when the fire broke out. The Adams building was structurally damaged when the common masonry wall it shared with the Beach building was demolished. This damage was due to the fact that floor joists were connected to the common wall by steel straps. The City of Lewiston subsequently condemned the unoccupied portions of the Adams building. The owner of the Adams building, Griffin, argues that these straps should have been disconnected prior to the demolition work

A complaint was filed on February 28, 1996, by plaintiff, S. Griffin Construction Inc. (Griffin), the owner of the Adams building, and Sean G. Phillips (Phillips), the sole shareholder of Griffin. The complaint alleged gross negligence or negligence, negligent supervision, grossly negligent/inadequate inspection or failure to inspect, and negligent withdrawal of lateral support. The City, various city employees and officials, the Fire Department, various employees of the Fire Department, Pete Bowling (the owner of the Weisgerber, Beehive and Beach buildings), and A & R and/or Albright (another company called in to assist with the demolition and clean-up) were all named as defendants.

In response to the complaint, the City of Lewiston and its employees asserted three affirmative defenses: 1) failure to state a claim upon which relief can be granted, 2) plaintiff's failure to comply with notice requirements of the Idaho Tort Claims Act, and 3) immunity under the Idaho Tort Claims Act. The district court subsequently ruled that the notice complied with the requirements of the Idaho Tort Claims Act.

On July 17, 1997, defendant A & R Construction moved for summary judgment dismissal of the case. On August 7, 1997, defendant City of Lewiston and its employees also moved for summary judgment. The plaintiff responded to the City's motion by asserting the existence of genuine issues of material fact as to whether the City's resolution was a valid declaration of a local disaster emergency, whether the damage caused to plaintiff's property occurred during a state of declared emergency, and whether the City's conduct in directing the demolition of the Beach building was in furtherance of the purposes of the Resolution and Act.

The plaintiff responded to A & R's motion by asserting that genuine issues of material fact existed as to whether A & R was grossly negligent, whether A & R acted under a contract with the City, whether A & R acted under a valid declaration of a local disaster emergency, whether, if the declaration was valid, the damage caused to plaintiff's property occurred during a state of declared emergency, whether A & R was immune under the act, whether A & R's demolition work was in furtherance of the purposes of the Resolution and Act, and whether A & R's demolition work was authorized by the Resolution.

An order was entered on October 23, 1997, granting summary judgment in part and denying it in part. The court granted summary judgment on several issues, finding the Resolution was a valid declaration of a local disaster emergency, the actions of the City and A & R occurred during a state of declared emergency, A & R's demolition work was in furtherance of the purposes of the Resolution and Act, and A & R's demolition work was authorized by the Resolution. Further, the district court denied summary judgment and found that a genuine issue of material fact existed as to if A & R acted under a contract or exceeded the contract and if A & R acted with negligence.

On September 29, 1998, A & R filed a renewed motion for summary judgment of dismissal, asserting that the two issues the court had previously denied on summary judgment were resolved in its favor following the completion of discovery. The court granted summary judgment for A & R on December 22, 1998. The plaintiffs moved for reconsideration, but this motion was denied by the court following a hearing on February 25, 1999. The City of Lewiston filed a renewed motion for summary judgment on January 19, 1999. The court subsequently dismissed plaintiffs amended complaint against A & R Construction in a judgment entered on March 24, 1999. The order from March 24, 1999, also denied defendant Albright's motion for summary judgment, and

16 P.3d 282

granted the City of Lewiston's renewed motion for summary judgment as to events occurring during the declared state of emergency, but denied the motion as to events that occurred outside the declared state of emergency. The court awarded costs to A & R Construction in the sum of $4,369.34

II.

STANDARD OF REVIEW

On appeal from the grant of a motion for summary judgment, this Court employs the same standard as used by the district court originally ruling on the motion. Scona, Inc. v. Green Willow Trust, 133 Idaho 283, 286, 985 P.2d 1145, 1148 (1999). Summary judgment is proper "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c). In an appeal from summary judgment, this Court will determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. Coghlan v. Beta Theta Pi Fraternity, 133 Idaho 388, 400-01, 987 P.2d 300, 312-13 (1999). The Court should liberally construe facts in favor of the non-moving party, together with all reasonable inferences from the evidence. Id. The existence of disputed facts will not defeat summary judgment when the plaintiff fails to establish a prima facie case on which the plaintiff will bear the burden of proof at trial. West v. Sonke, 132 Idaho 133, 138, 968 P.2d 228, 233 (1998).

III.

ANALYSIS

A. MATERIAL ISSUES OF FACT DO NOT EXIST AS TO WHETHER THE CITY PROPERLY DECLARED A STATE OF EMERGENCY UNDER THE DISASTER PREPAREDNESS ACT.

The procedural aspects of the State Disaster Preparedness Act are set forth as follows:

(1) A local disaster emergency may be declared only by a mayor or chairman of the county commissioners within their respective political subdivisions. It shall not be continued or renewed for a period in excess of seven (7) days except by or with the consent of the governing board of the political subdivision. Any order or proclamation declaring, continuing, or terminating a local disaster emergency shall be given prompt and general publicity and shall be filed promptly with the local county recorder.

(2) The effect of a declaration of a local disaster emergency is to activate the response and recovery aspects of any and all applicable local or intergovernmental disaster emergency plans and to authorize the furnishing of aid and assistance thereunder.

(3) No intergovernmental agency or official thereof may declare a local disaster emergency, unless expressly authorized by the agreement pursuant to which the agency functions. However, an intergovernmental disaster agency shall provide aid and services in accordance with the agreement pursuant to which it functions.

I.C. § 46-1011 (emphasis added).

The Resolution passed by the City on March 1, 1994, read as follows:

RESOLUTION 94-40

A RESOLUTION DECLARING A STATE OF EMERGENCY FOR THE FIRE OCCURRING ON MARCH 1, 1994, AT FIFTH AND MAIN STREET IN DOWNTOWN LEWISTON AND PROVIDING AN EFFECTIVE DATE

WHEREAS, a fire that occurred at Fifth and Main Street in downtown Lewiston on March 1, 1994, has

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