State Farm Fire & Casualty Co. v. Municipality of Anchorage
788 P.2d 726
Alaska
1990
Check Treatment

*1 lew, no so too is there dictating many aggravating how

formula FIRE & STATE FARM CASUALTY sanction, or increasing a justify factors COMPANY, Appellant, mitigating factors aggravating and how presents be “Each case are to balanced. which must different circumstances ANCHORAGE, OF MUNICIPALITY

weighed against gravity the nature Utilities, Alaska and Central the ... misconduct.” Id. Inc., Appellees. factors, mitigating In this several No. S-2883. (b), (e), (l), present. The (a), (f), (g) us contains no evidence record before Supreme Court of Alaska. disciplinary Appellant has ever received a attorney March 1990. sanction, public private, as judge, and we are of none. aware a “dishon- record reflects do motive,” rather

est or selfish but attitude toward gence. Appellant’s coopera- appears have been proceedings Although Appellant practiced tive. has years, had many law for he been on time, relatively period of for a short bench perhaps with the and thus was less familiar might of Judicial than other- Code Conduct Appellant acknowledged the case. wise be during lapse of care his cross-examina- his tion, expressed remorse. hand, aggravat- we find no other present. circumstances factors, conclude

Balancing these depart that it would not be repri- private from the baseline sanction concern, paramount here as mand. “Our protection pub- always, must be the courts, lic, legal profession.” and the Buckalew, paramount P.2d at This be ill this case

concern would served disap- express way in some our failing to neglect. proval Appellant’s IV. CONCLUSION above, the For the reasons Com- stated public mission’s recommended sanction court will admin- rejected. censure This pro- private reprimand in closed ister ceedings. JJ., MOORE,

RABINOWITZ and participating.

causing subsidence of some of the homes. Owners of damaged two of the homes sued Municipality (“MOA”). of Anchorage Casualty State Farm Fire & Insurance Co. (“State Farm”) plaintiffs’ insured the homes and was substituted as par- the real ty in interest paying plaintiffs’ after policies. court, The trial Judge Rene J. Gonzalez, refused to against MOA and refused to instruct the loquitur. The ren- dered a verdict for MOA. State Farm ap- peals. part, We affirm in part, reverse in and remand for a new trial.

I. prior

Sometime apparently in the 1970s, high pressure late water main was underground laid in the Foothills East Sub- Anchorage. hydrant division A fire by connected to the main pipe a vertical called a pipe. barrel and a horizontal type of soil used to fill around the barrel is not in evidence and there is no evidence suggesting precautions were taken to prevent hydrant breaking due to Jacobus, Thorsness, Hughes, Kenneth P. jacking.1 original plans frost for the Gantz, Brundin, Anchorage, Powell & hydrant wrapping did not call for the bar- appellant. prevent jacking, rel to although Terry James M. Bendell and Venneberg, specifications normally used Central Associates, James M. Bendell & Anchor- (“CAU”), originally Alaska Utilities which age, appellee Municipality of Anchor- operated main, may owned and the water age. wrapping. have called for Camarot, Corey, Michael D. Sandberg & 3, 1983, February the connection be- Smith, Anchorage, for appellee Cent. Alas- tween the pipe barrel and the horizontal Utilities, ka Inc. main, “shoe,” attached to the called the large broke. This break released amounts MATTHEWS, C.J., Before plaintiffs’ prop- water which flooded the WITZ, BURKE, RABINO COMPTON and erty. dispatched CAU a crew which re- MOORE, JJ. paired the appear break. It does not precautions additional further OPINION employed breaks were at that time. The MOORE, Justice. shoe, broken which would have been evi- In February broke, break, appar- water main dence of the cause of the flooding allegedly number of homes and ently discarded. jacking phenomenon

1. Frost is a precautions where moist frost-free fill material. Other soil around the barrel freezes and adheres to the wrapping hydrant pipe clude with material barrel, pushing up the barrel toward the surface Visqueen may prevent such as or Teflon that as the soil expands. below freezes and thus freezing adhering soil from to the bar- Testimony at trial jacking indicated that frost rel. can be avoided in most cases the use of sys- dangerous” about water distribution Nicholson houses suf- The Thomas and us- question of law tems. We review damage from subsidence fered judgment. independent this court’s following the break. State months homes, duty adopt rule law that is paid claims based “Our is to insured these *3 precedent, damage.2 rea- persuasive most on this son, Ha, 591 P.2d policy.” and v. Guin 1985, 24, the Thomases On October 1979). (Alaska 1281, 1284 n. 6 complaint stat- MOA. The Nicholsons sued liability apply and strict claims. ed that we should State Farm answered, raising affirmative defens- MOA 1 L.R.-Ex. Rylands, rule of v. the Fletcher join to an the failure (Ex.Ch.1866), es which included 330 aff'd, 3 L.R.-H.L. 265 22, 1987, party. June indispensable (1868), imposing liability for release strict join complaint their to plaintiffs amended con impounded Fletcher water. While 1988, January the In as defendant. CAU into impounded water leaking cerned the claims were dis- Thomases’ and Nicholsons’ 265-66, mine, the subjacent 1 L.R.-Ex. at as Farm was substituted missed and State Exchequer Chamber was Court of the February In party real in interest. the precedential the clearly concerned about summary judgment 1988, motion for CAU’s involving of its in cases effects decision of limitations on the basis the statute Simpson, Liability Legal breaks dams. granted, and CAU was dismissed Bursting Reservoirs: The Historical for the case.3 Fletcher, J.Legal 13 Rylands v. Content of (1984). res 250 Two sensational Stud. jury. One The case was tried before a in the fifteen ervoir disasters occurred expert most testified that the break was at years before the court’s decision. Id. likely jacking attributable caused 219-21, One of these occurred 225-26. improper pipe.4 fill the He also around being litigated and while Fletcher was likely the the most testified that break was villages virtually to a number of caused question. cause of homes people killing at 238 disappear, least Judge given, After all the evidence was rendering people des tens of thousands of jury on to instruct Gonzalez refused opinion in titute. Id. at 226. Lord Cairns’ ground on the distri- liability strict limit appeal the House of Lords before abnormally not an dan- bution of water is ed of the Fletcher rule activity. The refused to gerous v. Rylands of land. “non-natural” uses struct the doctrine Fletcher, (1868). Mu L.R.-H.L. 338 3 ground that the evidence risky nor are neither as nicipal water lines that water mains adduced at trial showed as unusual as earthen dams. negli- even in the absence break gence. upon un liability imposed Strict jury found that MOA was not great harm common that threaten activities gent in connection with 1983 by the use of and cannot be made safe judgment and the court entered break v. Equip., care. Inc. reasonable Yukon appeals. MOA. State Co., Ins. Fireman’s Fund 1978). We have held that

II. liability applied in all cases strict should be of dam involving explosives since risk Judge to instruct Gonzalez refused explosives age storage use liability, finding “nothing ex- from the jury on strict engaging in these abnormally exceptional properly cost traordinary or concerning dispute testified that such 4.This and one other 2. We considered a related shoe, corrosion, against freezing the Nicholsons’ claim State Farm factors as Nicholson, Casualty 777 likely Farm Fire & Co. v. impact causes of the surface were not 1152 break. questioned propriety has 3. State Farm dismissing CAU we do not from the case and the issue. consider

729 P.2d at 1211. 74 N.E.2d 239 Midwest Oil Co. v. activities. 585 hazardous Aberdeen, prece- supported S.D. N.W.2d This rule is substantial (1943). Power Exner E.g., dent. Sherman (2d Cir.1931); Co., F.2d Const. suggests impose State Farm that we Goulter, Or. Bedell utility is strict because a best able Equipment, Yukon to insure losses from broken water determining factors when reviewed the premi- lines costs of and can distribute the dangerous that activity abnormally among system through ums all users of the (Second) of Torts given in Restatement higher applied rates. We have liabili- them in and declined § ty products liability for similar cases of *4 explosives. Because the involving cases Caterpillar reasons. Tractor v. See Co. suggestive of weighing of these factors is (Alaska 1979); Beck, 877-78 standard, Equipment, negligence Yukon Center, Inc., Clary Ave. Chrysler v. Fifth 1211; Keeton, Prosser 585 P.2d at W. and argu- 454 P.2d (5th ed.1984), 78 at 555 Keeton on Torts § Farm, subrogated ment of an insurer State for activ- prefer we the test ultrahazardous paying poli- claims on after homeowners’ given in Restatement of Torts ities § cies, difficulty have that homeowners will find an ac- Specifically, would obtaining insurance to cover from tivity apply and strict liabil- ultrahazardous credibility. lines More- broken water lacks activity “necessarily involves a ity if that over, their many Alaskans receive water of harm cannot be risk serious ... which small, private utilities that water the utmost by the exercise of eliminated imposi- gravely would be threatened not a of common care” and “is matter liability line tion of for water breaks. strict that usage.” Because we wa- Id. impose liability on We decline to strict systems, explo- in to delivery ter contrast grounds. The superior these court’s hold- sives, quite by the can made safe use of be liability strict of care, systems such are com- reasonable affirmed.6 indeed, that mon we decline to hold systems constitutes an operation of such III. join activity.5 thus ultrahazardous We in the alternative that jurisdictions majority American that do of liability applicable to this if strict not liability to water line not jury should have been instructed E.g., Interstate and Door breaks. Sash Cleveland, loquitur.7 of St. on the doctrine City 148 Ohio Co. (1941) provision (interpreting agree identical We do with State Farm’s contention not Constitution). possibili- Washington presence permafrost or the sys- ty earthquakes renders water distribution requested State Farm was as 7. The instruction escaped may water tems ultrahazardous. While degrada- follows: which accelerate the form heat sinks permafrost and cause the subsidence of tion fact that the water main broke The mere properties, appropri- necessarily prove this factor is more affected itself that defen- does not However, determining ately you negligent. the reasonable- considered find dant was safety precautions employed negligent you to avoid ness of the if find it the defendant likely breaks. than that the water main more kind of break in this case was the event ordinarily argue expected happen parties do and we not de- would not 6. The did negligent strictly man- liable to unless defendant was ner, some cide MOA could be whether you precise if determine the the common law doctrines of even cannot State Farm under Casner, support, precise subjacent A.J. the break or the nature of the see 6A cause of lateral or (1954) negligence. Property 28.36-.54 §§ American Law of true, (strict withdrawing necessary you you If decide that above is ad- land); underlying permitted, support required, but not to conclude that joining but c.f. Fuller, likely it not that the defendant 728 P.2d 642-44 was more than Braham v. 1986) (rule applied negligent. reasonable use when ac- permafrost municipality adjacent melt does not contend that landowner tions subsidence), deficient, only causing adjacent instruction was that the condi- land or the under Constitution, giving any takings tions instruction of the Alaska See clause Seattle, were no Wash.2d not met. thus have occasion Muskatell v. presented to weighing of evidence The doctrine of res elements, like establish the compel, an inference does not permits, [doctrine’s] but fact, questions of is within the all other of an from the circumstances jury; the trial province of the where doctrine, applicable, is injury. “The evidence, court determines requirement bridge, dispensing with the most favorable to the viewed specifically prove breach plaintiff that a prerequi- plaintiff, could establish duty proximate cause duty, once that doctrine, application of the sites to the Widmyer have been established.” proper. that effect is It instruction to Inc., Skyways, Southeast jury’s responsibility then becomes omitted). (Alaska 1978)(footnotes The doc apply, apply, the doctrine refuse applied when: trine should be findings regarding on its factual based (1) ordinarily the accident is one which prerequisites. the circumstantial does not occur the absence Montgomery, Anderton v. negligence; (Utah 1980) (footnote omitted); see instrumentality is with- agency (“While P.2d at 13 it is clear Widmyer, 584 the defen- control of the exclusive *5 gen- in ipsa loquitur applicable that res dant; cases, necessarily it is not eral to aviation or occurrence injurious the condition spe- the applicable every such case since any voluntary action was not due to plain- vary.”). will The cific circumstances part on the or contribution entitled to a particular tiff in a case is res plaintiff. if court ipsa loquitur instruction the trial omitted). (footnote P.2d at 11 584 determines that the evidence introduced trial, By shifting produc viewed in a most favorable burden reasonably relieving plaintiff, jury lead the could tion to the defendant without that the doctrine’s elements proof, the doc to conclude plaintiff of the burden of Anderton, 607 P.2d at cir were established. recovery possible trine makes 833-34. proof of the defendant’s cumstances render impracticable and specific negligence act of case, Farm introduced State superior, party is the in the the defendant question in was evidence that the break only, position to if not the determine jacking and that probably caused frost Baxter, cause of an accident. Ferrell v. by the jacking usually can be avoided (Alaska 1971). Uncontra- 484 P.2d safety precautions. Farm’s use of proof specific acts of dicted jury for a to find evidence was sufficient explain the circumstances completely which loquitur, ipsa that the first element of res of the accident renders the doc and cause ordinarily is one which that “the accident inapplicable. superfluous Wid n doesnot occur in the absence of someone’s

trine 11-12; Rog 584 P.2d at myer, Crawford negligence,” Widmyer, 584 P.2d at 1965). ers, established. doctrine, jurisdictions The other two elements of the

Many courts in other plaintiff’s control and applica defendant’s exclusive have held res contributory negligence usually general main cases. lack of will in to broken water ble in present arising in cases from breaks Serv. E.g., Juchert Water California (1940); underground Homeowners Co., 106 P.2d 886 water mains. 16 Cal.2d Centers, seldom have contact with water lines bur- Drug Inc. v. Ida Skaggs defendant, Falls, underground. A Idaho 407 P.2d 695 ied far ho course, may attempt prove otherwise. Bell Tel. v. Port Northwest Co. Pacific Seattle, (finding Widmyer, 584 P.2d at 13 de- 80 Wash.2d See airplane control of question is a How fendant’s exclusive This law. “[i]n record”). ever, the face of a silent The existence appropriateness requested in Alaska Pattern pass instruction set forth note, however, Jury different. Instructions is somewhát instruction. We that the res Civil judgment the superior elements in this case was not court is these part, at trial. therefore in contested AFFIRMED REVERSED part, and REMANDED for a trial. new appears there to be little evi- Because precautionary dence of whether measures COMPTON, J., partic- dissents. of this

were taken installation hydrant, ular fire it is COMPTON, Justice, part. dissenting MOA, the owner of the and succes- agree I part opin- II of with the court’s installer, pro- sor to its bear burden ion, holding that the trial not err court did hy- ducing further evidence of whether the by refusing to instruct on strict negligently. installed drant was liability. However, I also that the the alternative that the MOA trial refusing court did not err in provided complete expla- factual evidence struct loquitur. break, precluding the cause of nation of holds, essence, breakage court rejected application of the doctrine. We frostjacking of water mains due to “does In that Widmyer. similar contention ordinarily occur in the ab- [in Alaska] parties heavily upon both relied infer- negligence.” Widmey- sence that were ences of witnesses corrob- Inc., Skyways, er v. Southeast testimony part eye- orated in As the acknowl- There witnesses. was considerable uncer- edges, applicability ipsa loqui- of res happened. tainty actually what about tur, and the propriety thus of an instruc- complete explana- held that a factual thus tion, a question Op. of law. at 11. How- Widmyer, tion offered. ever, many jurisdictions refuse to Here, at 11-12. there is no evidence of the *6 ipsa loquitur E.g., to water main breaks. barrel, originally soil used to fill around the Buick, Jennings City Inc. v. Cincinna- the shoe itself was not evidence. ti, Ohio St.2d N.E.2d experts inferences of are the only Church, 554 City Houston v. evidence of cause of the break. This (Tex.App.1977); S.W.2d Rob- complete not amount to such a factual does Falls, Realty Corp. City erts Great explanation ipsa res 160 Mont. loquitur precluded. in City As Houston correct- therefore that the court We hold erred observed, ly there that in is evidence by refusing ipsa instruct res locality particular type a of accident loquitur, and we a new remand for trial unpre- as the frequently occurs result opinion. accordance with this forces, ipsa loquitur dictable natural not hold that an instruction We do on res apply; it said should not cannot then be ipsa loquitur a whenever ordinarily occur that the accident “does not introduces claimant evidence negligence.” absence by the break a water main. caused Houston, at 244. S.W.2d Cf. cli- simply believe that when there is sufficient (unusual Widmeyer, at 13-14 of an acci- evidence circumstances finding mactic militate conditions jury reasonably could dent that conclude satisfied). prong elements of res established, faced unusual and plaintiff is entitled to Alaska we are with were unpredictable climactic It loqui- instructed on res conditions. have kind fair to that our climate is less tur. That was case here. There observe they times, example, mains, following an earth- than most to water quake, frequently own when an inference of burst. Farm’s (MichaelShoemaker) acknowledged Furthermore, the witness would be unreasonable. proof may provide that water lines break here for several complete at trial such to the explanation the cause of the reasons unrelated installer’s factual Indeed, point he testi- dispense gence. while at one as to with the need for accident engineering precautions fied that certain the doctrine. might help prevent frostjackmg, he ac-

knowledged that water mains Alaska not

only despite precautions, can break such permafrost degradation freezing,

due to many but that have. Accordingly, I affirm the trial would respects. court in all (First Unknown) JONES, Name R.W. Chapman, Anchorage, Petitioners, Municipal Corporation, JENNINGS, Respondent. Neil James

No. S-2981. Supreme Court of Alaska.

March