Alaska Supreme Court Reverses North Pole Fire Case

The Supreme Court of Alaska handed down a decision last week overruling a lower court that granted summary judgment the North Pole Fire Department, the North Star Volunteer Fire Department, and several of their officers.

The rather strange case arose out of a fire in a mobile home in 2008 and has apparently been relentlessly pursued pro se by the home’s owner, Leo Regner.

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…

The Alaska Supreme Court explained the circumstances that led to Regner’s suit, starting with his use of a propane torch to thaw a frozen water line that set his house on fire; then thinking he put it out and Regner left on a trek to Fairbanks to run errands; then coming back and making a major nuisance of himself while the brothers from the North were trying to put out the fire that Regner started. [Reading the case, I felt like I was watching an episode of Alaska Troopers…]

According to the suit when Regner tried to show the firefighters where he started the fire on the outside of the house by the well house, the firefighters “escorted” or “pushed” him out of the trailer…. several times. Crews were on the scene for only 52 minutes and the fire report estimated the damage at $10,500.

Regner claims that the firefighters were negligently responsible for $145,000 worth of damage. In the court’s own words:

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 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.

The trial court granted summary judgment in favor of the fire departments and firefighters ruling that the “defendants were immune from suit pursuant to AS 09.65.070(c)”. The court also concluded that Regner’s bare layman’s allegation that the firefighters were negligent was insufficient as a matter of law given the firefighters’ counter-assertions they were not negligent – given their expertise and training.

Regner appealed “only the superior court’s decision that he failed to make a sufficient showing of negligence to defeat summary judgment.” In a rather peculiar ruling the Alaska Supreme Court reversed the trial court. There is no easy way to explain the court’s reasoning, particularly in light of the fact that Regner did not challenge the court’s ruling on immunity. That did not stop the Alaska Supreme Court from mentioning it anyway, and here is what it said:

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. A planning decision “involves policy formulation” and is protected from liability, whereas an operational decision “involves policy execution or implementation” and is not entitled 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 long as the implementation does not involve the consideration of policy factors.” “Under the planning/operational test, ‘liability is the rule, immunity the exception.’”

The court went on to explain it did not think the fire department was entitled to the immunity protection the trial court concluded it had… [did I mention that Regner did not challenge the court’s decision on immunity? I suppose they may have been trying to help a pro se litigant who BTW appears to be a decidedly a better litigator than he is a firefighter… or plumber for that matter.]

As for the trial court’s ruling that Regner offered “only unfounded speculation” that the firefighters were negligent, the Alaska Supreme Court concluded that the judge failed to draw “all reasonable inferences in favor of” Regner, and that he was entitled to his day in court in front of a jury.

And so it will be. The case has been sent back to the trial court.

Here is a copy of the decision. North Pole

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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