Bromley v. Garey

• Decision Date: 26 May 1999
• Docket Number: No. 24234,24234
• Parties: Tory T. BROMLEY, Plaintiff-Appellant, v. Ronald K. GAREY, Defendant-Respondent. Idaho Falls, October 1998 Term
• Court: Idaho Supreme Court

Page 1165

979 P.2d 1165

Tory T. BROMLEY, Plaintiff-Appellant, v. Ronald K. GAREY, Defendant-Respondent.

No. 24234.

Supreme Court of Idaho,

Idaho Falls, October 1998 Term.

May 26, 1999.

Peterson, Parkinson & Dewey, Idaho Falls, for appellant. John C. Dewey argued.

Thomsen & Stephens, P.A., Idaho Falls, for respondent. T. Jason Wood argued.

WALTERS, Justice.

This is an appeal from a summary judgment granted in favor of Ronald Garey dismissing an action brought by Tory Bromley, who was injured in a hunting accident involving a shotgun owned by Garey. We reverse the order granting summary judgment and remand the case for further proceedings.

BACKGROUND AND PROCEDURAL HISTORY

In September 1995, Bromley and Dave Sholder went hunting with two shotguns that Sholder had borrowed from his uncle and Ronald Garey. Both Bromley and Sholder used Garey's shotgun, and both observed that it frequently misfired and sometimes even fired late, yet they continued to use it. On the way home, they stopped and shot at some doves by the side of the road, but left in a hurry to avoid trouble for firing near houses that were beside the road. Sholder simply wrapped the two loaded shotguns in a blanket and placed them in the bed of the pickup.

After driving a short distance, they decided it might be safer to unload the shotguns. They stopped, and Bromley got out on the driver's side while Sholder got into the back of the pickup. As Sholder picked up the bundle containing the shotguns, Garey's shotgun fell onto the bed of the pickup and discharged, striking Bromley.

Shortly after the accident, an agent from Garey's insurance company took the shotgun to Jon Aikin of Aikin's Sport Shop for an examination. Aikin observed that when the bolt was slammed shut or when the shotgun was hit on its butt or on the sides, it would fire ninety percent of the time. Aikin did not disassemble the shotgun or otherwise attempt to determine the source of the problem, but he suggested several possible reasons for his observations. Aikin returned the shotgun to Garey with a note that the shotgun was inoperable and should not be used.

Eleven months later, Bromley requested that the shotgun be examined by Robert Stofey. Stofey, the Range Master for the Oxnard Police Department, performed an examination similar to Aikin's, but with markedly different results. The gun was clean and in good condition, and he was unable to reproduce the problems observed by Aikin.

The gun would fire only when the trigger was pulled; it would not fire when dropped from heights up to approximately twelve inches. According to Stofey, there was no indication of any misfiring or mechanical malfunction.

Bromley sued both Sholder and Garey for his injuries. Garey filed a motion for summary judgment alleging that he owed no duty to Bromley. Garey subsequently filed a second motion for summary judgment alleging intervening cause. In response to Garey's motions for summary judgment, Bromley submitted the depositions of Bromley, Sholder and Aikin in order to show a genuine issue of material fact regarding Garey's duty. Bromley also argued that Stofey could not duplicate Aikin's observations because Garey had repaired the shotgun and destroyed any evidence of a defect. Bromley argued that he was entitled to a spoliation inference, based on the alleged destruction of evidence, that Garey knew about the defect when he loaned the shotgun to Sholder and consequently had a duty not to lend the shotgun. Garey filed a motion to strike the expert testimony of Jon Aikin. On December 23, 1996, the court heard oral argument on both summary judgment motions and Garey's motion to strike.

The district court granted Garey's motion to strike the expert testimony of Jon Aikin. The district court also granted Garey's first motion for summary judgment finding that there was no admissible evidence that Garey knew of a condition or defect that would cause the shotgun to fire when dropped. The court determined that a reasonable jury might infer that Garey knew the gun would misfire or fire late. However, the court determined that the accident occurred when the shotgun was dropped, not because it misfired or fired late. Without knowledge that the shotgun had a tendency to fire when dropped, the court concluded that Garey did not have a duty to warn Sholder or Bromley about the shotgun. Having granted Garey's first motion for summary judgment, the court specifically declined to rule on Garey's second summary judgment motion.

After Sholder filed bankruptcy, pursuant to Rule 54(b) of the Idaho Rules of Civil Procedure Bromley appealed the summary judgment dismissing his claim against Garey. Because the district court specifically declined to rule on Garey's second summary judgment motion, this Court will not consider issues raised in Garey's second motion. Thus, Bromley's appeal raises the following issues:

1) Did the court abuse its discretion by striking the expert testimony of Jon Aikin?

2) Did the court improperly refuse to apply the doctrine of spoliation?

3) Did the court improperly find that Bromley had not raised a genuine issue of material fact with regard to a duty owed by Garey to Bromley?

I. STANDARD OF REVIEW

Summary judgment shall be granted where the record reveals no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Friel v. Boise City Housing Authority, 126 Idaho 484, 887 P.2d 29 (1994). The record must be liberally construed in favor of the party opposing the motion for summary judgment, drawing all reasonable inferences and conclusions supported by the record in favor of that party. Student Loan Fund Of Idaho, Inc. v. Duerner, 131 Idaho 45, 49, 951 P.2d 1272, 1276 (1997). The burden of proving the absence of a genuine issue of material fact rests at all times on the moving party. Tingley v. Harrison, 125 Idaho 86, 89, 867 P.2d 960, 963 (1994). Where the non-moving party will bear the burden of proof at trial, the moving party's burden may be satisfied by showing the absence of material fact with regard to any essential element of the non-moving party's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The absence of a genuine issue of fact with regard to an essential element of the plaintiff's claim renders any other potential issues of fact irrelevant. Once the absence of sufficient evidence on an element has been shown, the burden shifts to the non-moving party to establish a genuine issue of material fact. The non-moving party cannot merely rely upon its pleadings, but must produce Bromley's claim against Garey is based upon negligence. Consequently, at trial Bromley would bear the burden of proving each of the following: (1) a duty, recognized by law, requiring Garey to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between Garey's conduct and Bromley's injury; and (4) actual loss or damage. Black Canyon Racquetball v. First Nat'l Bank, N.A., 119 Idaho 171, 175-76, 804 P.2d 900, 904-05 (1991). Garey's first summary judgment motion challenged only whether Garey owed a duty to Bromley. Consequently, the question before this Court is whether Bromley has submitted sufficient admissible evidence to create a genuine issue of material fact regarding Garey's duty to Bromley. The general standard for determining the existence of a genuine issue of material fact is the same as the standard employed on a directed verdict. The non-moving party must produce evidence upon which a reasonable jury could rely. Petricevich v. Salmon River Canal Co., 92 Idaho 865, 452 P.2d 362 (1969).

                affidavits, depositions, or other evidence establishing an issue of material fact.   R.G. Nelson, A.I.A. v. Steer, 118 Idaho 409, 410, 797 P.2d 117, 118 (1990).  The non-moving party need not submit evidence on every element upon which it will bear the burden at trial, but only those elements about which the moving party successfully carried its burden.  Thomson v. Idaho Ins. Agency, Inc. 126 Idaho 527, 887 P.2d 1034 (1995)
                

Evidence presented in support of or in opposition to a motion for summary judgment must be admissible. Hecla Min. Co. v. Star-Morning Min. Co., 122 Idaho 778, 785, 839 P.2d 1192, 1199 (1992). This threshold question of admissibility of evidence must be decided "before proceeding to the ultimate issue, whether summary judgment is appropriate." Ryan v. Beisner, 123 Idaho 42, 45, 844 P.2d 24, 27 (Ct.App.1992). The general rule that all inferences are drawn in favor of the non-moving party does not apply to the initial question of admissibility. Hecla Min. Co., supra.

II.

THE COURT DID NOT ABUSE ITS DISCRETION BY REFUSING TO ALLOW AIKIN'S EXPERT TESTIMONY.

In response to Garey's motions for summary judgment, Bromley submitted the deposition of Jon L. Aikin. Garey moved to strike Aikin's testimony. The district court granted Garey's motion with respect to Aikin's expert opinions, but allowed Aikin's testimony describing his actual observations. The court found that Aikin probably qualified as a shotgun repair expert, however it concluded that his opinions were speculative and lacked the necessary factual foundation. We agree.

The admission of expert testimony is within the sound discretion of the trial court. Burgess v. Salmon River Canal Co., Ltd., 127 Idaho 565, 903 P.2d 730 (1995). Expert opinion must be based upon a proper factual foundation. "Expert opinion which is speculative, conclusory, or unsubstantiated by facts in the record is of no assistance to the jury in rendering its verdict, and therefore is inadmissible as evidence under Rule 702." Ryan at 46, 844 P.2d at 28. Expert opinion that merely suggests possibilities would only invite conjecture and may be properly excluded. Elce v. State, 110 Idaho 361, 716 P.2d 505 (1986).

Aikin examined the shotgun shortly after the accident. He observed that the shotgun fired when the bolt was slammed shut and when...