Ambrose By and Through Ambrose v. Buhl Joint School Dist. No. 412

• Decision Date: 08 December 1994
• Docket Number: No. 20821,20821
• Citation: 126 Idaho 581,887 P.2d 1088
• Parties: , 96 Ed. Law Rep. 1149 Jared AMBROSE, a minor child, By and Through F. Dean Ambrose and Susan Ambrose, husband and wife, the natural parents of Jared Ambrose; F. Dean Ambrose, individually; and Susan Ambrose, individually, Plaintiff-Appellants, v. BUHL JOINT SCHOOL DISTRICT # 412, Defendant-Respondent.
• Court: Idaho Court of Appeals

Page 1088

887 P.2d 1088

126 Idaho 581, 96 Ed. Law Rep. 1149

Jared AMBROSE, a minor child, By and Through F. Dean Ambrose and Susan Ambrose, husband and wife, the natural parents of Jared Ambrose; F. Dean Ambrose, individually; and Susan Ambrose, individually, Plaintiff-Appellants, v. BUHL JOINT SCHOOL DISTRICT # 412, Defendant-Respondent.

No. 20821.

Court of Appeals of Idaho.

Dec. 8, 1994.

Petition for Review Denied Feb. 6, 1995.

Webb, Pedersen & Webb, Twin Falls, for appellants. Kenneth L. Pedersen argued.

Quane, Smith, Howard & Hull, Boise, for respondent. Brian D. Harper argued.

LANSING, Judge.

This action arose from personal injuries sustained by plaintiff Jared Ambrose, a minor, while he was playing baseball on a playground owned by the defendant, Buhl Joint School District No. 412. The district court granted summary judgment dismissing the action on the ground that the school district was exempted from liability by Idaho's Recreational Use Statute, I.C. § 36-1604. The district court also held that the attractive nuisance doctrine, under which a landowner may be liable for injuries sustained by a child playing on the landowner's premises notwithstanding the provisions of I.C. § 36-1604, did not apply to the circumstances of Jared's injury. Appellants, Jared Ambrose and his parents, Dean and Susan Ambrose, argue on appeal that a prima facie showing of all elements of the attractive nuisance doctrine has been presented and that the judgment therefore should be reversed. We hold that because the application of the attractive nuisance doctrine as adopted in Idaho is limited to those situations where the child is attracted onto the defendant's land by the instrumentality that causes the injury, and because such attraction onto the land did not occur in this case, the district court was correct in granting summary judgment in favor of the school district.

I

The school district owns a playground upon which are located several baseball diamonds with backstops. The school district allows "Pee Wee League" baseball games to be played on this field during the summer months while school is not in session. Jared Ambrose, then age eleven, went with his parents to watch one of these games. Jared met some of his friends at the game, and they decided to discontinue watching the game and instead play their own informal baseball game at an adjacent backstop on the same playground. The backstop was not permanently affixed to the ground. It had two "wing" panels that rotated forward and backward on hinges attached to a main, center panel. When correctly positioned, the two wings and the center panel form a "U" shape. At some time during this informal game, two of the children extended the wings outward until they were nearly in line with the center panel, thereby causing the backstop to become less stable. Jared was batting in front of the backstop when his brother, Kyle, climbed onto the top overhanging portion of the backstop, causing the backstop to topple forward onto Jared. Jared suffered a broken leg and other injuries.

Dean and Susan Ambrose brought this action against the school district on behalf of Jared and in their individual capacities. They alleged that the backstop was a dangerous structure constituting an attractive nuisance which caused Jared's injury, and that the school district was therefore liable.

The school district moved for summary judgment, asserting that it was exempt from liability by terms of I.C. § 36-1604. ¹ The district court granted the motion. The court held that although the attractive nuisance doctrine presents an exception to a landowner's immunity from liability under I.C. § 36-1604, the Ambroses' evidence did not support the existence of all elements of the attractive nuisance doctrine with respect to Jared's injury. The Ambroses appeal from this ruling.

II

Our standard of review on appeal from a summary judgment was concisely stated in Podolan v. Idaho Legal Aid Services, Inc., 123 Idaho 937, 941-42, 854 P.2d 280, 284-85 (Ct.App.1993):

Summary judgment is appropriate only when there are no genuine issues of material fact and the case can be decided as a matter of law. I.R.C.P. 56(c); Moss v. Mid-American Fire and Marine Insurance Co., 103 Idaho 298, 302, 647 P.2d 754, 758 (1982); Whitlock v. Haney Seed Co., 110 Idaho 347-48, 715 P.2d 1017-18 (Ct.App.1986). Where, as here, a jury has been requested, the nonmoving party is entitled to the benefit of reasonable inferences drawn from the evidentiary facts. Anderson v. Ethington, 103 Idaho 658, 660, 651 P.2d 923, 925 (1982); Whitlock, supra. The facts are drawn from a review of the record, consisting of the motions, pleadings, affidavits, depositions, and admissions on file. I.R.C.P. 56(c); Moss, supra. Controverted facts are viewed in favor of the party resisting the motion. Whitlock, supra.

The party opposing the motion may not merely rest on the allegations contained in the pleadings; rather, evidence by way of affidavit or deposition must be produced to contradict the assertions of the moving party. I.R.C.P. 56(e); Worthen v. State, 96 Idaho 175, 176, 525 P.2d 957, 958 (1974). Raising the slightest doubt as to the facts is insufficient--a genuine issue of material fact must be presented. LePelley v. Grefenson, 101 Idaho 422, 428, 614 P.2d 962, 968 (1980)....

Summary judgment dismissing a claim is appropriate when the plaintiff fails to submit evidence to establish an essential element of the claim. Badell v. Beeks, 115 Idaho 101, 102, 765 P.2d 126, 127 (1988) citing Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Garzee v. Barkley, 121 Idaho 771, 774, 828 P.2d 334, 337 (Ct.App.1992). "In such a situation, there can be 'no genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id.

III

The purpose of the Recreational Use Statute upon which the school district relies, I.C. § 36-1604, is to "encourage owners of land to make land and water areas available to the public without charge for recreational purposes." I.C. § 36-1604(a); See also McGhee v. City of Glenns Ferry, 111 Idaho 921, 729 P.2d 396 (1986). The statute accomplishes this purpose by generally limiting the duty of care owed by the landowner to recreational users. Public entities are landowners under terms of the statute. ² I.C. § 36-1604(b)(1), (2); McGhee, 111 Idaho at 922, 729 P.2d at 397. In the instant case, the school district as owner of the land upon which it allowed Pee Wee baseball games to be played during the summer months, enjoys the protections afforded by I.C. § 36-1604.

The statute does not, however, confer absolute immunity upon owners who gratuitously permit recreational use of their property. In Jacobsen v. City of Rathdrum, 115 Idaho 266, 270, 766 P.2d 736, 740 (1988), the Idaho Supreme Court concluded that the statute "was intended to insulate landowners only from liability predicated on a duty of care owed to an invitee or licensee." From this premise the Court further concluded that "[t]hose who use an owner's land for recreational purposes are entitled to at least the same protection as trespassers are afforded." Id. The Supreme Court observed that a landowner owes a duty of care to a trespasser, and thus to a person using the land for recreational purposes, in two circumstances. First, it is a landowner's duty to a trespasser "to refrain from wilful or wanton acts which might cause injuries." Jacobsen, 115 Idaho at 270, 766 P.2d at 740, quoting Huyck v. Hecla Mining Co., 101 Idaho 299, 301, 612 P.2d 142, 144 (1980). Second, the landowner may be liable for injuries to a trespassing child under the attractive nuisance doctrine. Jacobsen 115 Idaho at 272-73, 766 P.2d at 742-43.

The Ambroses do not contend that the school district engaged in wilful or wanton conduct causing Jared's injury. Therefore, in order for Jared's claim to survive application of the Recreational Use Statute, the claim must fall within Idaho's attractive nuisance doctrine.

IV

The elements of an attractive nuisance claim are set forth in Bass v. Quinn-Robbins, Co., 70 Idaho 308, 312, 216 P.2d 944, 945 (1950):

To render the owner liable the structure or condition maintained or permitted on his property, must be peculiarly or unusually attractive to children; the injured child must have been attracted by such condition or structure; the owner must know, or the facts be such as to charge him with knowledge, of the condition, and that children are likely to trespass and be injured; the structure or condition must be dangerous and of such a character that the danger is not apparent to immature minds.

This four-part test remains the law in Idaho. Jacobsen, 115 Idaho at 272, 766 P.2d at 742; Hughes v. Union Pacific Railroad Co., 114 Idaho 466, 468-69, 757 P.2d 1185, 1187-88 (1988).

The threshold issue presented by this appeal is whether the second element of an attractive nuisance claim delineated in Bass--that the injured child "must have been attracted by such condition or structure"--requires that the child must have been attracted onto the defendant's land by the condition or structure causing the injury, as opposed to merely being attracted to the dangerous instrumentality once the child has entered upon the land. The Ambroses argue that the test simply requires that the child be attracted to the condition or structure even if the child was already on the land for other reasons. We conclude, however, that the attractive nuisance doctrine under Idaho law applies only to children who were attracted onto the defendant's premises by the dangerous object or condition.

Our analysis begins with Bicandi v. Boise Payette Lumber Co., 55 Idaho 543, 551-52, 44 P.2d 1103, 1106 (1935), where the Idaho Supreme Court held that the attractive nuisance doctrine "has application only to cases where children have been injured while on...