Forbush v. Sagecrest Multi Family Prop. Owners' Ass'n, Inc., Docket No. 44053

• Court: Idaho Supreme Court
• Writing for the Court: BURDICK, Chief Justice.
• Citation: 396 P.3d 1199,162 Idaho 317
• Docket Number: Docket No. 44053
• Decision Date: 20 June 2017
• Parties: Travis FORBUSH and Gretchen Hymas, individually and as the Natural Parents of Private First Class McQuen C. Forbush, USMC (Deceased), and Breanna Halowell, Plaintiffs-Appellants, v. SAGECREST MULTI FAMILY PROPERTY OWNERS' ASSOCIATION, INC., and John Kalsbeek, individually and as President of the Sagecrest Multi Family Property Owners' Association, Defendants-Respondents, and Jay Arla, individually and as vice president of the Sagecrest Multi Family Property Owners' Association; Chris Schwab, individually and as secretary of the Sagecrest Multi Family Property Owners' Association; David Meisner, individually and as treasurer of the Sagecrest Multi Family Property Owners' Association; First Rate Property Management, Inc., Tony Drost, individually and as president of First Rate Property Management, Inc.; Sagecrest Development, LLC; Park City Plumbing, Inc., nka PC Plumbing, Inc.; Widgeon Mechanical, LLC nka Idaho Geothermal, LLC ; A.O. Smith, Inc.; Matthew E. Switzer Trust, and Matthew E. Switzer, individually and as Trustee of the Matthew E. Switzer Trust; Goodman Manufacturing Company, LP; Anfinson Plumbing, LLP ; Daniel Bakken, individually and as employee of Anfinson Plumbing, LLP; H&H Properties, LLC; and Intermountain Gas Company, Defendants.

162 Idaho 317
396 P.3d 1199

Travis FORBUSH and Gretchen Hymas, individually and as the Natural Parents of Private First Class McQuen C. Forbush, USMC (Deceased), and Breanna Halowell, Plaintiffs-Appellants,
v.
SAGECREST MULTI FAMILY PROPERTY OWNERS' ASSOCIATION, INC., and John Kalsbeek, individually and as President of the Sagecrest Multi Family Property Owners' Association, Defendants-Respondents,
and
Jay Arla, individually and as vice president of the Sagecrest Multi Family Property Owners' Association; Chris Schwab, individually and as secretary of the Sagecrest Multi Family Property Owners' Association; David Meisner, individually and as treasurer of the Sagecrest Multi Family Property Owners' Association; First Rate Property Management, Inc., Tony Drost, individually and as president of First Rate Property Management, Inc.; Sagecrest Development, LLC; Park City Plumbing, Inc., nka PC Plumbing, Inc.; Widgeon Mechanical, LLC nka Idaho Geothermal, LLC ; A.O. Smith, Inc.; Matthew E. Switzer Trust, and Matthew E. Switzer, individually and as Trustee of the Matthew E. Switzer Trust; Goodman Manufacturing Company, LP; Anfinson Plumbing, LLP ; Daniel Bakken, individually and as employee of Anfinson Plumbing, LLP; H&H Properties, LLC; and Intermountain Gas Company, Defendants.

Docket No. 44053

Supreme Court of Idaho, Boise, February 2017 Term.

Filed: June 20, 2017

Peterson Lawyers, Boise and The Spence Law Firm, Jackson, WY, for appellants. Michael F. Lutz argued.

Barnham, Howell & Gunn, PLLC, and Moore & Elia, LLP, Boise, for respondents. John Howell argued for respondent Kalsbeek and Michael J. Elia argued for respondent Sagecrest POA.

BURDICK, Chief Justice.

162 Idaho 320

Travis Forbush and Gretchen Hymas, individually and as natural parents of McQuen C. Forbush and Breanna Halowell (Appellants), appeal the Ada County District Court's grant of summary judgment to Sagecrest Multifamily Property Owners' Association, Inc., and its President, Jon Kalsbeek (Respondents). Forbush and Halowell were overnight guests of a tenant who leased a unit at the Sagecrest Apartment Complex (Sagecrest). During the night, hazardous levels of carbon monoxide filled the unit, killing Forbush and injuring Halowell. Appellants brought tort claims against Respondents after the incident. The district court granted summary judgment to Respondents. We affirm in part, reverse in part, and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

This appeal concerns an incident in which a vent on a water heater clogged and caused the emission of hazardous levels of carbon monoxide in unit 4624 at Sagecrest on November 10, 2012. The incident killed eighteen-year-old Private First-Class McQuen C.

396 P.3d 1203

162 Idaho 321

Forbush, a U.S. Marine; and injured eighteen-year-old Breanna Halowell. Forbush and Halowell were overnight guests of unit 4624's tenant Adra Kipper.

Sagecrest consists of forty-eight separate buildings, each containing four apartments. When Sagecrest was built, Sagecrest Development, LLC, recorded the Declarations of Covenants, Conditions, and Restrictions (CCRs). The CCRs instruct that individuals or entities hold fee title to the separate buildings, each containing the four apartments. The CCRs grant these individuals or entities the "exclusive right" to maintain the interiors of the apartments they own. The unit owners are shareholders in the Sagecrest Multifamily Property Owners' Association (POA), a non-profit corporation. The CCRs task the POA with maintaining the exterior grounds at Sagecrest, including the sidewalks, landscaping, common areas, and fences. By contrast, the CCRs task unit owners with maintaining the "entire interior" of the units they own. To meet these maintenance duties, the CCRs require both the POA and unit owners to employ the same property management company. To that end, the POA and unit owners entered into maintenance contracts with First Rate Property Management (FRPM) in March 2010.

In spring 2011, carbon monoxide concerns emerged at Sagecrest. Evidently, some tenants had reported smelling gas inside of their units. Intermountain Gas was contacted about these concerns and explained the problem was due to certain water heaters' venting systems. Two types of water heaters were used at Sagecrest. Venting on one type had "a metal screen around the bottom of the tank." Venting on the second type "d[id]n't have a screen that goes around, but one in the middle on the bottom." Venting on the second type was prone to clogging, which, in turn, caused carbon monoxide to emit. After meeting with Intermountain Gas about the problem, FRPM surmised that "we just need to clean/vacuum off the screens and it will be fine."

Nonetheless, carbon monoxide concerns grew more serious that summer. In July 2011, Intermountain Gas was again contacted after another tenant reported smelling gas inside of her unit. Intermountain Gas described the carbon monoxide level as "deadly" and attributed it to the unit's water heater. That same month, a professional plumber, Ben Davis, inspected the water heaters at Sagecrest, identified the problematic venting system, and advised that "these issues be solved before any tenants suffer health problems or death." Thereafter, FRPM reasoned that more than just cleaning or vacuuming the screens was necessary, concluding "the only way to fix this problem without modifying the water heater is to replace them completely."

Although the POA knew of the carbon monoxide concerns, it did not move to modify or replace the water heaters. As the POA's President Jon Kalsbeek explained, "the water heaters are interior items of each unit" and, therefore, "an owners [sic] choice on how to handle this situation." Even so, the POA, primarily through Kalsbeek, became involved with the carbon monoxide issue in several ways. Although the CCRs give unit owners the "exclusive right" over unit interiors, Tony Drost, FRPM's President, testified that the POA, through Kalsbeek, controlled "global issues" that were complex-wide, which included the water heaters. For example, the POA instructed FRPM to conduct carbon monoxide testing inside of the units every three months. To that end, the POA issued two sets of procedures governing carbon monoxide testing. Those procedures also governed the installation of hard-wired carbon monoxide alarms. And, in September 2011, the POA enlisted an engineering firm in an effort to explore solutions short of replacing the water heaters. According to the engineering firm, the various solutions were to (1) increase "fresh air intakes"; (2) replace existing water heaters; and (3) replace "the smoke detectors with CO/Smoke detector combination sensor[s.]"

In November 2011, FRPM relayed the engineering firm's findings to unit owners. Matthew Switzer, who owns the building in which unit 4624 sits, responded that he was unaware of any carbon monoxide issues with his units. FRPM clarified that Switzer's units had "checked in good during the CO detecting." FRPM further indicated that it would

396 P.3d 1204

162 Idaho 322

contact Switzer if later testing revealed carbon monoxide concerns with his units.

Under the POA's directive, FRPM conducted carbon monoxide testing on March 9, 2012. That testing revealed a high level of carbon monoxide in several units, including unit 4624. However, that testing was later contradicted. When Intermountain Gas tested unit 4624 on March 12, 2012, it reported normal, non-hazardous levels of carbon monoxide. In any event, although FRPM had stated it would contact Switzer if testing revealed carbon monoxide concerns with his units, Switzer was never contacted about the high levels discovered on March 9, 2012.

Warnings were distributed to tenants following the high levels of carbon monoxide discovered on March 9, 2012. The warning, placed on unit 4624's front door, informed tenant Adra Kipper that her unit's water heater was emitting "higher levels of carbon monoxide than we would like to see." The warning further informed Kipper that her water heater would be "replaced next week." A battery-powered carbon monoxide alarm was provided along with the warning because, although FRPM had begun to install hard-wired alarms under the POA's directive, a hard-wired alarm had not yet been installed in unit 4624.

Kipper's water heater was never replaced. And, although Kipper used the battery-powered carbon monoxide alarm initially, she eventually removed the alarm's batteries and placed it in a closet after it started beeping, apparently due to low batteries. Consequently, when Kipper had two overnight guests—Forbush and Halowell—staying over on November 10, 2012, no alarm sounded when the vent on Kipper's water heater clogged and caused the emission of hazardous levels of carbon monoxide. The incident killed Forbush and injured Halowell.

Appellants filed their initial complaint on March 7, 2013, and eventually filed four amended complaints. They named several parties as defendants, including the POA and Kalsbeek, Respondents in this appeal. The district court granted summary judgment to Respondents. Appellants bring this timely appeal.

II. ISSUES ON...