Fuller v. Studer, 19281

• Decision Date: 18 June 1992
• Docket Number: No. 19281,19281
• Citation: 833 P.2d 109,122 Idaho 251
• Parties: Alex W. FULLER and Lorinda Fuller individually and Alex W. Fuller and Lorinda Fuller as General Guardians for Nina Fuller, a minor, Plaintiffs-Appellants, v. Andy STUDER and Christina Studer, husband and wife, Defendants-Respondents, and John Does 1-5, Defendants. Twin Falls, April 1992 Term
• Court: Idaho Supreme Court

Page 109

833 P.2d 109

122 Idaho 251

Alex W. FULLER and Lorinda Fuller individually and Alex W. Fuller and Lorinda Fuller as General Guardians for Nina Fuller, a minor, Plaintiffs-Appellants, v. Andy STUDER and Christina Studer, husband and wife, Defendants-Respondents and John Does 1-5, Defendants.

No. 19281.

Supreme Court of Idaho,

Twin Falls, April 1992 Term.

June 18, 1992.

Wood & Shaw, Pocatello, for plaintiffs-appellants. Steven W. Shaw, argued.

Brady Lerma Chtd., Boise, for defendants-respondents. Rebecca A. Broadbent, argued.

McDEVITT, Justice.

This case arises out of a snowmobile accident. Plaintiff Nina Fuller was injured by a snowmobile operated by the defendants' three-year-old daughter. The plaintiffs brought suit alleging that the defendants were negligent in leaving unattended a snowmobile with the engine running near their three-year-old daughter. While unattended, the three-year-old daughter climbed upon the snowmobile, pressed the throttle, and ran over the plaintiff Nina Fuller, causing severe injuries. Plaintiffs base their claim on the theories of negligent supervision and negligent entrustment. The district court granted summary judgment in favor of the defendants. We affirm.

FACTS

The parties do not dispute the facts. On February 20, 1988, the defendant, Andy Studer, and his father-in-law, Charles Seager, took Studer's three-year-old daughter, Barbara, and three other children snowmobiling at Pomerelle Ski Area. The snowmobiles involved were a Polaris owned by Mr. Studer and a John Deere owned by Mr. Seager. After giving the children rides on the snowmobiles, Studer and Seager returned to the pickup truck to load the snowmobiles onto the trailer.

When Seager returned to the pickup, he got inside the pickup to rest. Studer returned and took Seager's John Deere for a short ride. After Studer returned from riding the John Deere, he tried to load the Polaris by himself, but a ski got entangled with a cable attached to the trailer, so Seager tried to assist Studer in loading the Polaris. As Studer was driving the Polaris onto the trailer, it threw mud and snow on the John Deere. Seager brushed the snow and mud off the John Deere and then drove the John Deere ahead of the trailer, where he left it with the motor running. ¹ Studer's The Seagers were dismissed from the lawsuit by stipulation of the parties. The defendants' motion for summary judgment was granted by the district court. The district court ruled that the facts lacked any indication that Studer "entrusted" Barbara with the snowmobile and that there was no evidence indicating Barbara's propensity or proclivity for climbing on a snowmobile. Hence, there were insufficient facts to support either theory of negligent entrustment or negligent supervision.

[122 Idaho 253] three-year-old daughter Barbara then climbed upon the John Deere and pressed the throttle. The snowmobile took off and eventually went over an embankment and ran over seven-year-old Nina Fuller. Nina received severe and permanent injuries as a result of the accident. Barbara was not injured.

The plaintiffs then filed a motion for reconsideration. In support of this motion, the plaintiffs filed affidavits from two expert witnesses. These experts stated that a normal three-year-old would be attracted to a snowmobile and would "experiment" with it. This evidence was submitted to counter both Studer's and Seager's affidavits which stated that the Studer children were not allowed to drive or even play upon the snowmobiles nor were Studer or Seager aware of the children ever playing on the snowmobiles. The trial court denied plaintiffs' motion for reconsideration and the plaintiffs appeal.

On appeal, we must determine: (1) if the trial court erred in granting summary judgment on the issue of negligent entrustment; and (2) if the trial court erred in granting summary judgment on the issue of negligent supervision.

I. STANDARD OF REVIEW

In an appeal from a motion for summary judgment, this Court's standard of review is the same as the standard used by the trial court in passing upon a motion for summary judgment. McDonald v. Paine, 119 Idaho 725, 810 P.2d 259 (1991); Meridian Bowling Lanes v. Meridian Athletic, 105 Idaho 509, 670 P.2d 1294 (1983). All facts and inferences from the record will be viewed in favor of the nonmoving party to determine whether the motion should be granted. Treasure Valley Bank v. Butcher, 117 Idaho 974, 793 P.2d 206 (1990); Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986); Farmers Ins. Co. of Idaho v. Brown, 97 Idaho 380, 544 P.2d 1150 (1976). The burden of proving the absence of material facts is upon the moving party. Petricevich v. Salmon River Canal Co., 92 Idaho 865, 452 P.2d 362 (1969). However, the adverse party "may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." I.R.C.P. 56(e); Anderson v. City of Pocatello, 112 Idaho 176, 731 P.2d 171 (1987). A mere scintilla of evidence is insufficient to create a material issue of fact. Id. Judgment shall be rendered if the pleadings, depositions, admissions, and affidavits on file show that there is no genuine issue of material fact. I.R.C.P. 56(c); Anderson v. Ethington, 103 Idaho 658, 651 P.2d 923 (1982).

The elements of an action based upon negligence are: "(1) a duty, recognized by law, requiring a defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant's conduct and the resulting injuries; and (4) actual loss or damage." Alegria v. Payonk, 101 Idaho 617, 619, 619 P.2d 135, 137 (1980); Brizendine v. Nampa Meridian Irrigation Dist., 97 Idaho 580, 583, 548 P.2d 80, 83 (1976). Typically, issues of negligence ordinarily present questions of fact for a jury to resolve. Johnson v. Stanger, 95 Idaho 408, 510 P.2d 303 (1973). Therefore, summary judgment should not be granted unless only one reasonable conclusion can be drawn from the facts. Keller v. Holiday Inns, Inc., 107 Idaho 593, 691 P.2d 1208 (1984).

II. NEGLIGENT ENTRUSTMENT

The plaintiffs urge that Studer negligently entrusted the snowmobile to Barbara.

[122 Idaho 254] . To support their theory of entrustment, the plaintiffs rely upon the fact that Barbara was allowed to remain in close proximity to the idling snowmobile and that a three-year-old would have a natural proclivity to climb upon and play with a snowmobile.

One of the first cases in Idaho to discuss the tort of negligent entrustment is Kinney v. Smith, 95 Idaho 328, 508 P.2d 1234 (1973). Kinney does not provide us with much detail as to the specific elements of the tort. Recently, we stated that negligent entrustment is a particularized application of the general principles of negligence law. Olguin v. City of Burley, 119 Idaho 721, 810 P.2d 255 (1991). Essentially, the term "entrustment" characterizes the duty of care to be applied in evaluating an alleged tort-feasor's conduct.

The crucial element of this tort is "the legal right to 'control' the thing entrusted which gives rise to the duty in negligent entrustment" and that in exercising control over the thing entrusted a plaintiff need not show that the defendant placed the instrument in "the hands of a child," but that the defendant acted "in a manner that it became likely a child would come into possession of it and use it in such a manner as to create an unreasonable risk of harm to others." Ransom v. City of Garden City, 113 Idaho 202, 207, 743 P.2d 70, 75 (1987). While "control" usually means legal ownership, the paramount requirement is a person's right to control, even if the person is not the legal owner. Lopez v. Langer, 114 Idaho 873, 761 P.2d 1225 (1988).

In this case, the John Deere snowmobile was legally owned by Mr. Seager, who had been driving for most of that day. While Mr. Studer had also driven the John Deere the day of the accident, the affidavits indicate that it was Mr. Seager who had left the snowmobile with the motor running in close proximity to Barbara. It appears that it was Mr. Seager who "controlled" the John Deere snowmobile, Mr. Studer did not have the necessary right to control the snowmobile to impose liability for negligent entrustment. The district court did not err in granting summary judgment on this issue.

III. NEGLIGENT SUPERVISION

In addition to their claim of negligent entrustment, the plaintiffs further contend that Studer was negligent in the supervision of his daughter Barbara. Plaintiffs argue that this breach of the duty to supervise is a proximate cause of Nina's injuries.

In order to address the issue of negligent supervision, first we recognize the common law rule that parents are not responsible for the torts of their children. Gorden v. Rose, 54 Idaho 502, 33 P.2d 351 (1934); see also Parsons v. Smithey, 109 Ariz. 49, 504 P.2d 1272 (1973); Ellis v. D'Angelo, 116 Cal.App.2d 310, 253 P.2d 675 (1953); Herndobler v. Rippen, 75 Or. 22, 146 P. 140 (1915). In Gorden, this Court rejected an argument that would have imposed liability upon parents for a child's negligence based upon the theory of the "family purpose doctrine." We recognized in Gorden that imposing liability in this area would be best handled by the legislature and not by the courts. Gorden, 54 Idaho at 512-13, 33 P.2d at 355.

Subsequent to the Gorden decision, the Idaho Legislature recognized that it is contrary to public policy to hold parents vicariously liable for the torts of their children by enacting I.C. § 6-210. This section holds parents liable for economic losses "willfully caused" by a minor child still living with the parents, but only up to a maximum of $2,500. Subsection (2) of the statute disallows recovery for "less tangible damage such as pain and suffering, wrongful death, or emotional distress." The effect of this statute is to prohibit...