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Trigg et al v City of Nome (12/20/96), 929 P 2d 1273
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NOTICE: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are requested
to bring errors to the attention of the Clerk of the
Appellate Courts, 303 K Street, Anchorage, Alaska 99501,
phone (907) 264-0607, fax (907) 276-0878.
SUPPLEMENTAL NOTICE: Due to its unavailability in
electronic format, this Opinion was retyped by Touch N' Go
Systems. Every effort was made to ensure accuracy, but
Touch N' Go Systems can not be held responsible for any
errors.
THE SUPREME COURT OF THE STATE OF ALASKA
JON TRIGG and MARIE TRIGG )
) Supreme Court No. S-6954
Appellants, )
) Superior Court No.
v. ) 2NO-92-244 CI
)
CITY OF NOME ) O P I N I O N
)
)
Appellee. ) [No. 4448 - December 20, 1996]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Second Judicial District, Nome,
Michael L. Jeffery, Judge.
Appearances: Tim Jannott, Stepovich, Kennelly &
Stepovich, P.C., Anchorage, for Appellants. Krista
S. Stearns, Hicks, Boyd, Chandler & Falconer,
Anchorage for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
FABE, Justice.
I. INTRODUCTION
This appeal arises out of a snow machine accident that
occurred near Nome. Jon and Marie Trigg were injured when their
snow machines collided with a fuel pipeline crossing the Snake
River at Nome. The Triggs sued the City of Nome for their
injuries. The superior court granted summary judgment in favor of
the City, ruling that AS 09.65.070(d)(1) confers immunity from
liability to municipalities for failure to warn of hazards on
land that the municipality does not own or lease. We affirm.
II. FACTS AND PROCEEDINGS
On February 18, 1992, Jon and Marie Trigg were driving
snow machines on the Snake River at Nome. At approximately 11:00
p.m., the Triggs collided with a pipeline extending across the
Snake River and suffered serious physical injuries. The pipeline
is owned by the Air Force and was not marked by lights or
reflectors at the time of the accident.
The Triggs sued the City in the fall of 1992, claiming
that the City was liable for their injuries because it had not
warned them of the pipeline with reflectors, lights, or other
markings. That action was stayed for approximately one year to
allow the Triggs to pursue an administrative claim against the
Air Force. When the superior court lifted the stay, the City
filed a motion for summary judgment. The superior court, finding
that the Triggs had not met their burden of producing evidence
that the City owned or leased the pipeline, held that the City
was immune from suit under AS 09.65.070(d)(1)(A) and (C) and
granted the motion. The Triggs appeal.
III. DISCUSSION1
The relevant portion of AS 09.65.070(d) provides:
An action for damages may not be brought
against a municipality or any of its agents,
officers, or employees if the claim
(1) is based upon the failure of the municipality, or its
agents, officers, or employees, when the municipality is neither
owner nor lessee of the property involved,
(A) to inspect the property for a violation of any statute,
regulation, or ordinance, or a hazard to health or safety;
(B) to discover a violation of any statute, regulation, or
ordinance, or a hazard to health or safety if an inspection of
property is made; or
(C) to abate a violation of any statute, regulation, or
ordinance, or a hazard to health or safety discovered on property
inspected.
The Triggs do not dispute the superior court's finding
that they failed to produce evidence that the City owned or
leased the pipeline. They contend, however, that this statute
provides immunity only for failures to inspect or abate a hazard,
not for failure to warn of a hazard. We disagree.
"Unless words have acquired a peculiar meaning . . .
they are to be construed in accordance with their common usage."
Wilson v. Municipality of Anchorage, 669 P.2d 569, 571-72 (Alaska
1983); accord AS 01.10.040. "Abate"means to "reduce or lessen in
degree or intensity"and "to decrease in force, intensity, or
violence."Webster's Third New International Dictionary 2 (1966).
The placement of reflectors, lights or other warning markers on
the pipeline would reduce or abate the hazard that the pipeline
poses to snow machiners such as the Triggs. Any failure by the
City to warn the Triggs of the pipeline was thus a failure to
abate a hazard under AS 09.65.070 (d)(1)(C).2 We therefore AFFIRM
the superior court's ruling that the City is immune from
liability for the Triggs' injuries.
_______________________________
1 We review the superior court's summary judgment order de
novo. Department of Health v. State Hosp., 856 P.2d 755, 759-60
(Alaska 1993). We "determine whether any genuine issue of
material facts exists and whether the moving party is entitled to
judgment on the law applicable to the established facts. All
reasonable inferences of fact from proffered materials must be
drawn against the moving party and in favor of the nonmoving
party."Wright v. State, 824 P.2d 718, 720(Alaska 1992)(citations
omitted).
2 Because our holding is dispositive of this case, we need not
consider the other issues raised by the Triggs.
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