Carnell v. Barker Management, Inc.

• Decision Date: 03 June 2002
• Docket Number: No. 26575.,26575.
• Citation: 48 P.3d 651,137 Idaho 322
• Parties: Stacie CARNELL, as parent of the minor child Cambria Carnell, and on behalf of the Estate of Cambria Carnell, Morgan McCarthy, individually and Stacie Carnell, as guardian of Morgan McCarthy, Plaintiffs-Appellants-Cross-Respondents, v. BARKER MANAGEMENT, INC., d/b/a Barker Realtors and James Barker, individually; Ralph E. Smith and Betty L. Smith, husband and wife; Phillips Electric, John Does I through X, Defendants-Respondents. Jerry and Cindy Carnell, as the parents and personal representatives of the minor child Brittiny Carnell and Gerald Fred Carnell, a minor child, individually, and Jerry and Cindy Carnell as the parents and guardians of said child, Plaintiffs-Appellants-Cross-Respondents, v. James Barker, individually and Barker Management, Inc., dba Barker Realtors; Ralph E. Smith and Betty L. Smith, husband and wife; Phillips Electric and John and Jane Does I through X, Defendants Respondents, and State of Idaho, Department of Health and Welfare, Defendant-Respondent-Cross-Appellant.
• Court: Idaho Supreme Court

48 P.3d 651

137 Idaho 322

Stacie CARNELL, as parent of the minor child Cambria Carnell, and on behalf of the Estate of Cambria Carnell, Morgan McCarthy, individually and Stacie Carnell, as guardian of Morgan McCarthy, Plaintiffs-Appellants-Cross-Respondents, v. BARKER MANAGEMENT, INC., d/b/a Barker Realtors and James Barker, individually; Ralph E. Smith and Betty L. Smith, husband and wife; Phillips Electric, John Does I through X, Defendants-Respondents.

Jerry and Cindy Carnell, as the parents and personal representatives of the minor child Brittiny Carnell and Gerald Fred Carnell, a minor child, individually, and Jerry and Cindy Carnell as the parents and guardians of said child, Plaintiffs-Appellants-Cross-Respondents, v. James Barker, individually and Barker Management, Inc., dba Barker Realtors; Ralph E. Smith and Betty L. Smith, husband and wife; Phillips Electric and John and Jane Does I through X, Defendants Respondents, and State of Idaho, Department of Health and Welfare, Defendant-Respondent-Cross-Appellant.

No. 26575.

Supreme Court of Idaho, Boise, March 2002 Term.

June 3, 2002.

Jenkins Law Office, Chtd., Idaho Falls, for plaintiffs-appellants-cross respondents Stacie Carnell, Morgan McCarthy, and Jerry and Cindy Carnell.

Brassey, Wetherell, Crawford & McCurdy, Boise, for defendants-respondents Ralph E. Smith and Betty L. Smith.

Moore, Baskin & Parker, Boise, for defendants-respondents Barker Management, Inc., d/b/a Barker Realtors and James Barker.

Emery & Kershaw, P.C., Twin Falls, for defendant-respondent-cross appellant State of Idaho, Department of Health and Welfare.

Saetrum Law Offices, Boise, for defendant-respondent Phillips Electric.

KIDWELL, Justice.

Stacie Carnell and Morgan McCarthy and Jerry and Cindy Carnell filed separate complaints for wrongful death and personal injury against numerous defendants following the deaths of two children and the injury of another child in a house fire. They appeal the district court's grant of summary judgment as to all defendants.

I. FACTS AND PROCEDURAL BACKGROUND

This case stems from a house fire that resulted in the deaths of two children and personal injury to a third child. On May 13, 1996, LaDonna Seeley (Seeley) purchased a home in Buhl, Idaho from Ralph and Betty Smith (Smiths). Barker Realty was the Smiths' realty company; Jim Barker (Barker) was a realtor. Seeley moved into the home in mid-August with her daughter, Stacie Carnell (Stacie); Stacie's two children, Cambria Carnell (Cambria) and Morgan McCarthy (Morgan); Seeley's son, Jerry Carnell (Jerry); Jerry's four minor children, Lindsey, Lacey, Alissa, and Brittiny; and Seeley's son, Shane. On August 7, 1996, the Honorable Thomas H. Borreson granted the Idaho Department of Health and Welfare (IDHW) temporary custody of Lindsey, Lacey, Alissa, Brittiny, and Gerald (Jory) Carnell. Jerry and his wife, Cindy, were to have no contact with each other or the children. Because of his young age, Jory remained with Cindy, and the IDHW placed the other four children with their grandmother, Seeley.

The IDHW visited the Seeley home prior to placing the children there and performed a safety inspection of the home. Linda Kirk (Kirk), an IDHW employee, visited the Seeley home and observed that the basement had only one exit. Kirk informed Seeley that the children would require adult supervision any time they were in the basement.

After moving in, Seeley, the other residents of the home, and Cindy, a frequent visitor to the home, began to notice various electrical problems, such as blown fuses and occasional power outages. Seeley contacted Barker about fixing the problem; Seeley recalled Mrs. Smith telling her the home had updated wiring. In October of 1996, Barker solicited bids from electrical contractors to make the necessary repairs at the home. The bid from Phillips Electric Company (Phillips Electric) was accepted, and Phillips Electric performed the repair work in November of 1996. Phillips Electric replaced the fuse box with a circuit breaker box, replaced some wiring to the water heater, and installed new groundings. Other than needing to reset the microwave clock on occasion, the home's occupants did not experience further electrical problems.

On December 18, 1996, a fire occurred in the Seeley home. Jerry left for work around 6:30 a.m. Cindy arrived with Jory that morning, joining Seeley, Stacie, Morgan, Cambria, Brittiny, Shane, and Jamie, Seeley's son who was visiting. Cindy placed Jory down for a nap in a bassinet behind a hide-a-bed in the basement. Cindy and Seeley were talking in the kitchen, and Stacie, on her way to the kitchen, observed Cambria and Brittiny go down to the basement. She did not mention to any of the adults that the children went to the basement. Approximately ten to twenty minutes later, three-year-old Alissa ran up the basement stairs yelling. As she opened the door at the top of the stairs onto the main floor of the house, the smoke detector on the main floor began alerting. The smoke detector in the basement, located behind the closed door of the furnace room, began alerting about the same time. Cindy heard Jory crying, ran downstairs, and saw the fire on and around the hide-a-bed and west wall. She grabbed Jory, who had been burned, and ran upstairs. She looked around the basement, but did not see anyone. Stacie limited her search of the home for the other children to the main floor. Cindy, Jory, Seeley, Alissa, Stacie, and then-newborn Morgan, all fled the home.

The Buhl Fire Department responded quickly. After extinguishing the fire, firemen found Cambria and Brittiny behind a wet bar in the basement. Both girls died as a result of the fire. Cambria was two years old, and Brittiny was two days shy of two years old. Jory suffered burns, and some of the adults were treated for smoke inhalation. Although the cause of the fire was in dispute, no one disputed that the fire began in the basement. Jerry lived in the basement; Brittiny and another child usually slept in the basement; the basement doubled as the children's playroom. Jerry and Cindy smoked. Jerry admitted to smoking in the basement, and kept his lighter and cigarettes in a small box in the basement. When she visited, Cindy kept her cigarettes and lighter on a shelf in the basement.

The Buhl Fire Department requested that Donald D. Dillard, Chief Deputy State Fire Marshal, inspect the home to determine the cause and origin of the fire. He found a burned non-childproof lighter under the hide-a-bed suggesting it may have been used to start the fire. Alissa was questioned about the fire by her family only. She allegedly said that she did not know how the fire started.

On June 30, 1997, Jerry and Cindy filed a complaint for the wrongful death of Brittiny and the personal injuries suffered by Jory. Their complaint was based upon the theory that the cause of the fire was electrical. Their complaint named Seeley, Barker, Barker Realty, the Smiths, Phillips Electric, and the IDHW as defendants. Stacie and Morgan filed a complaint for the wrongful death of Cambria. It was originally filed on May 21, 1997, but was not served. It was amended and filed again on October 15, 1997. Seeley, Barker, Barker Realty, the Smiths, and Phillips Electric were named as defendants. The plaintiffs alleged that the negligent actions of the defendants resulted in the deaths of two children and personal injuries to one child and sought damages for wrongful death and personal injuries. Specifically, they alleged that Seeley negligently failed to make her home safe, that the Smiths, Barker, and Barker Realty negligently failed to disclose the electrical defects in the home and falsely represented that the wiring in the home was updated, and that Phillips Electric negligently repaired the electrical wiring in the Seeley home. Jerry and Cindy's complaint also alleged that the IDHW negligently placed Brittiny in an unsafe home.

The two complaints were consolidated on January 5, 1998. The parties spent the latter part of 1997 and all of 1998 answering the complaints and beginning discovery. The IDHW filed a motion for summary judgment, which the district court granted in part and denied in part in an order dated December 31, 1998. Its motion to reconsider or clarify the decision was denied by the court on April 28, 1999. On February 24, 1999, a scheduling order was entered, requiring the plaintiffs to disclose all expert witnesses 180 days prior to trial, set for June 5, 2000. All of the defendants filed motions for summary judgment in the spring of 1999. Plaintiffs requested and were granted an extension of time to respond to the motions.

In support of its motion for summary judgment, Phillips Electric submitted the affidavits of Dillard and Shane Hartgrove (Hartgrove), a fire inspector and a member of the Boise Police Department. Both men investigated the cause and origin of the fire at the Seeley home—Dillard at the request of the Buhl Fire Department and Hartgrove at the request of Phillips Electric. They each determined the cause of the fire to be a lighter, which was used to set fire to the bedding of the hide-a-bed. They both excluded electrical problems as the cause of the fire. In their affidavits, both men gave detailed information about their education, experience, and training as fire inspectors, provided specific cases in which they had testified as experts, explained the methodology they used to determine the cause and origin of the fire, and explained how they were able to conclude that the fire was caused by the lighting on fire of the bedding of the hide-a-bed, not by electrical causes.

During this litigation, counsel for Seeley retained Ted Itchon (Itchon), an expert fire investigator, as a consultant. As part of his investigation, Itchon had removed various pieces of evidence from the basement after the fire. Plaintiffs sought to have that evidence examined by an expert from California whom they...