Grabicki ex rel. Thompson v. City of Lewiston

• Decision Date: 23 May 2013
• Docket Number: No. 40057.,40057.
• Citation: 302 P.3d 26,154 Idaho 686
• Court: Idaho Supreme Court
• Parties: Anthony E. GRABICKI, United States Bankruptcy Trustee, for and on behalf of Timothy K. Thompson and Janet M. Thompson, husband and wife, Plaintiffs, and C. Barry Zimmerman, United States Bankruptcy Trustee, for and on behalf of Thompson's Auto Sales, Inc., an Idaho corporation, Plaintiff–Appellant, v. CITY OF LEWISTON, a political subdivision of the State of Idaho, Defendant–Respondent.

154 Idaho 686

302 P.3d 26

Anthony E. GRABICKI, United States Bankruptcy Trustee, for and on behalf of Timothy K. Thompson and Janet M. Thompson, husband and wife, Plaintiffs,andC. Barry Zimmerman, United States Bankruptcy Trustee, for and on behalf of Thompson's Auto Sales, Inc., an Idaho corporation, Plaintiff–Appellant,

v.CITY OF LEWISTON, a political subdivision of the State of Idaho, Defendant–Respondent.

No. 40057.

Supreme Court of Idaho, Coeur D'Alene, April 2013 Term.

May 23, 2013.

Creason, Moore, Dokken & Geidl, PLLC, Lewiston, for appellant. Samuel T. Creason argued.

Anderson, Julian & Hull LLP, Boise, for respondent. Chris H. Hansen argued.

HORTON, Justice.

This appeal arises from an action filed against the City of Lewiston (the City) by Tim Thompson, Janet Thompson, and Thompson's Auto Sales (collectively, Thompson). Thompson filed a claim under the Idaho Tort Claims Act (ITCA), alleging the City negligently designed and installed a storm water drain system on a city street adjacent to Thompson's property, which caused storm water runoff to flow onto Thompson's property and damage it. After suit was filed, Thompson entered bankruptcy proceedings and the bankruptcy trustee, C. Barry Zimmerman, was substituted as Plaintiff in the action. The City moved for summary judgment on the grounds of discretionary immunity and design immunity. The district court denied the motion as to design immunity, but granted the motion on the ground of discretionary immunity. Zimmerman appealed, arguing that the discretionary immunity exception to liability under the ITCA does not grant immunity from liability for damage caused by negligent design and, alternatively, that even if discretionary immunity is considered, it is inapplicable in this case because the City's actions were not discretionary within the meaning of the exception. We reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs in the underlying action in this case were Tim and Janet Thompson and Thompson's Auto Sales, Inc., the automobile sales business they owned together. The business was located at 306 21st Street in Lewiston, Idaho. In January 2007, the Thompsons brought an action for negligence against the City of Lewiston under the Idaho Tort Claims Act. However, during the course of those proceedings, the Thompsons and Thompson's Auto Sales, Inc. entered bankruptcy and United States Bankruptcy Trustee C. Barry Zimmerman was substituted as plaintiff and is therefore the appellant.

In May 2003, the City of Lewiston changed its storm water drain system at the intersection of 21st Street and Idaho Street from a "valley" gutter system to a "bubble-up" system. Zimmerman alleges that in 2006, the new system failed to contain storm-water flowing down 21st Street and that the resulting flood across the Thompson property damaged the property and rendered a large portion of it unusable. Zimmerman further alleges that the City negligently designed the new storm-water drain system and that the City's negligence was the cause of its damages.

The design and plans for the new storm-water drain system were prepared by John Watson, the assistant city engineer, as part of the 2003 Summer Street Maintenance Project. According to Watson, the decision to change the storm-water drain system was taken in response to safety concerns with the valley gutter system. Watson's design consisted of a schematic of the intersection and a detail page. Neither party presented any evidence related to the specific engineering standards or requirements that the project was required to follow. However, Zimmerman offered expert opinion evidence that the plan and design failed to meet any standard.

The City moved for summary judgment on the grounds it was immune from liability under the ITCA, citing Idaho Code § 6–904(1) and (7), which provide exceptions to liability for exercising discretionary functions and for designs that conform to engineering standards or have prior approval. In support of its motion, the City presented affidavits from Lowell Cutshaw, the City Engineer, and Joel Ristau, the Public Works Director. The City contends these affidavits demonstrate that the design was properly approved before construction began. City Council Minutes from June 9, 2003, show that the City accepted a bid to complete the 2003 Summer Street Maintenance Project, which included the storm-drain replacement. In response, Zimmerman presented evidence that the former Mayor and two City Council members had no recollections of discussing that project. Zimmerman also submitted the affidavit of Janice Vassar, the City Manager, indicating that the City Engineer had authority to approve some projects independently, but substantial projects would have required approval from the City Council or City Manager.

After a hearing, the district court granted the City's motion in part and denied it in part, deciding that the City was immune from liability for damages resulting from negligent design, but that there remained questions of fact regarding negligent maintenance. The parties filed motions for reconsideration, which the district court denied. Because the plaintiff (at that time Thompson) conceded there was no evidence to support the negligent maintenance claim, the trial court dismissed the claim. However, the trial court permitted Thompson to amend its complaint to add several claims for equitable relief, and the litigation therefore continued. As a result of the bankruptcy proceedings, the Thompsons no longer have an interest in the property, and the trial court dismissed all remaining claims from the amended complaint. The remaining appellant is Zimmerman, the bankruptcy trustee for Thompson's Auto Sales, who timely appealed.

II. STANDARD OF REVIEW

This Court exercises free review over appeals from a grant of summary judgment and the standard it applies is "the same as the standard used by the trial court in ruling on a motion for summary judgment." Stonebrook Const., LLC v. Chase Home Fin., LLC, 152 Idaho 927, 929, 277 P.3d 374, 376 (2012) (quoting Curlee v. Kootenai Cnty. Fire & Rescue, 148 Idaho 391, 394, 224 P.3d 458, 461 (2008) ). Summary judgment is therefore proper if "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c). When applying this standard, this Court construes disputed facts, and all reasonable inferences that can be drawn from the record, in favor of the non-moving party. Curlee, 148 Idaho at 394, 224 P.3d at 461. Where "the evidence reveals no disputed issues of material fact, then only a question of law remains, over which this Court exercises free review." Lockheed Martin Corp. v. Idaho State Tax Comm'n, 142 Idaho 790, 793, 134 P.3d 641, 644 (2006) (citing Infanger v. City of Salmon, 137 Idaho 45, 44 P.3d 1100 (2002) ).

"It is axiomatic that upon a motion for summary judgment the non-moving party may not rely upon its pleadings, but must come forward with evidence by way of affidavit or otherwise which contradicts the evidence submitted by the moving party, and which establishes the existence of a material issue of disputed fact." Jones v. HealthSouth Treasure Valley Hosp., 147 Idaho 109, 112, 206 P.3d 473, 476 (2009) (quoting Zehm v. Associated Logging Contractors, Inc., 116 Idaho 349, 350, 775 P.2d 1191, 1192 (1988) ). However, "a mere scintilla of evidence or only slight doubt as to the facts is insufficient to withstand summary judgment; there must be sufficient evidence upon which a jury could reasonably return a verdict resisting the motion." Brown v. City of Pocatello, 148 Idaho 802, 806, 229 P.3d 1164, 1168 (2010) (quoting Harpole v. State, 131 Idaho 437, 439, 958 P.2d 594, 596 (1998) ). "[C]onclusory assertions unsupported by specific facts are insufficient to raise a genuine issue of material fact precluding summary judgment." Mareci v. Coeur D'Alene Sch. Dist. No. 271, 150 Idaho 740, 744, 250 P.3d 791, 795 (2011) (quoting Goodman v. Lothrop, 143 Idaho 622, 627, 151 P.3d 818, 823 (2007) ).

III. ANALYSIS

This Court uses a two-step analysis for reviewing a motion for summary judgment based upon an immunity defense under the ITCA. First, the Court "determine[s] whether the plaintiffs' allegations and supporting record generally state a cause of action for which ‘a private person or entity would be liable for money damages under the laws of the state of Idaho.’ " Czaplicki v. Gooding Joint Sch. Dist. No. 231, 116 Idaho 326, 330, 775 P.2d 640, 644 (1989) (quoting Walker v. Shoshone Cnty., 112 Idaho 991, 995, 739 P.2d 290, 294 (1987) ). "This is essentially a determination of whether there is such a tort under Idaho Law." Rees v. Dep't of Health & Welfare, 143 Idaho 10, 14–15, 137 P.3d 397, 401–02 (2006) (citation omitted). The second step is to "determine whether an exception to liability under the ITCA shields the alleged misconduct from liability." Czaplicki, 116 Idaho at 330, 775 P.2d at 644. Thus, the preliminary questions are whether Zimmerman has stated a cause of action in tort and whether an exception to the ITCA provides the City with immunity from any liability.

A. Zimmerman has stated a cause of action for negligence.

Zimmerman contends that the allegations and supporting record state a cause of action for negligence. Generally, to state a cause of action for negligence, a plaintiff must establish four elements: "(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." Fragnella v. Petrovich, 153 Idaho 266, 272, 281 P.3d 103, 109 (2012) (quoting McDevitt v. Sportsman's Warehouse, Inc., 151 Idaho 280, 284, 255 P.3d 1166, 1170 (2011) ). Every person has a general duty to use due or ordinary care not to...