O'GUIN v. Bingham County

• Decision Date: 18 June 2003
• Docket Number: No. 28210.,28210.
• Citation: 139 Idaho 9,72 P.3d 849
• Parties: Frank and Leslie O'GUIN, husband and wife, individually, and in their capacity as parents and legal guardians of Frank O'Guin, Jr., a minor, Plaintiffs-Appellants, v. BINGHAM COUNTY; Bingham County Commissioners; and Bingham County Public Works, a political subdivision; and Dippel Lateral Ditch Company, Defendants-Respondents.
• Court: Idaho Supreme Court

72 P.3d 849

139 Idaho 9

Frank and Leslie O'GUIN, husband and wife, individually, and in their capacity as parents and legal guardians of Frank O'Guin, Jr., a minor, Plaintiffs-Appellants, v. BINGHAM COUNTY; Bingham County Commissioners; and Bingham County Public Works, a political subdivision; and Dippel Lateral Ditch Company, Defendants-Respondents.

No. 28210.

Supreme Court of Idaho, Boise, March 2003 Term.

June 18, 2003.

Law Offices of Comstock & Bush, Boise, for appellants. John A. Bush argued.

Anderson, Nelson, Hall, Smith, Idaho Falls, for respondents. Blake G. Hall argued.

WALTERS, Justice.

Frank and Leslie O'Guin brought an action against Bingham County, its commissioners, and its public works department for the wrongful death of their minor sons, Shaun and Alex. The County filed a summary judgment motion, which the district court denied. When the County sought permission to appeal, the district court, sua sponte, reconsidered its decision and granted summary judgment in favor of the County. For the reasons that follow, we affirm the judgment of dismissal on the claims addressed by the district court, but we remand the case to the district court for a ruling on the plaintiffs' statutorily-based claims.

FACTS AND PROCEDURAL BACKGROUND

In the summer of 1999, Shaun and Alex O'Guin were enrolled in a summer lunch program at Ridgecrest Elementary School. They walked to the elementary school from their home, along Ridge Street to Airport Road and on to the school. On July 7, 1999, the boys took a shortcut to the school across the Ridge Street Landfill, property owned by Bingham County. The boys entered the property where an irrigation ditch crossed Ridge Street, through an opening in the fence, which purportedly allowed access to the ditch company.

On the way home from the school, the boys took the same shortcut, entering from the school property through an unlocked gate. Looking across a small ditch from the area nearest Ridge Street, the O'Guin boys spotted other boys throwing rocks at the walls of the working landfill. The boys crossed the earthen bridge over the ditch into the landfill, and they too began throwing rocks at the slope, causing dirt and gravel to come loose. Shaun and Alex dallied, despite a warning from their older brother, Frank, Jr., that they would get into trouble playing there.

Frank, Jr., left his brothers at the landfill but returned later to find them. He discovered Shaun and Alex lifeless at the bottom of the pit, where they had been crushed to death when the wall gave way and collapsed on them.

In their complaint, the plaintiffs alleged that the landfill was an attractive nuisance and that the County breached certain legal duties to control access to the landfill to prevent children from walking in and playing there. The County, in its answer, asserted that inasmuch as the boys were trespassers, there was no duty of reasonable care owed to them. The County sought dismissal of the attractive nuisance claim and reasserted that the County's only duty to trespassers was to refrain from willful and wanton conduct, which the plaintiffs had failed to plead. As to the claims of Frank, Jr., the County asserted that he did not qualify as an "heir" under Idaho Code § 5-311 and thus did not have standing to seek damages.

In a decision issued on November 30, 2001, the district court dismissed the attractive nuisance claim for failure to assert facts to prove an essential element of the claim. The district court, however, found that there existed genuine issues of fact to be resolved by a jury on the common law negligence claim. The district court denied the motion as to the statutory claims and the claims raised by Frank, Jr., and provided that plaintiffs could submit evidence on those claims to the jury.

The County requested permission to appeal. In response to the County's motion, however, the district court sua sponte reconsidered its original decision on the summary judgment. On January 7, 2002, the district court issued a substitute decision, granting summary judgment to the County on all claims. The district court found that the status of the O'Guin boys as trespassers invoked a standard of willful and wanton conduct that the plaintiffs did not address, even though the County had raised the issue in its reply memorandum. The court held that the negligent infliction of emotional distress claim had not been pled and thus was not before the court. Having dismissed the plaintiffs' common-law negligence claim, the district court determined it unnecessary to decide whether Frank, Jr., had standing under the wrongful death statute. The O'Guins filed a timely appeal.

ISSUES

1. Did the district court err in finding that the children were trespassers as a matter of law?

2. Did the district court err in granting summary judgment on the attractive nuisance claim?

3. Was it error for the court to grant summary judgment on the basis that the O'Guins had not pled a wanton and willful standard, even though the parties substantively litigated the issue?

4. Did the district court err in failing to address the O'Guins' statutory claims, where the court previously found the County had breached its statutory duties? 5. Did the district court err in granting summary judgment on Frank Jr.'s negligent infliction of emotional distress claim?

STANDARD OF REVIEW

A motion for summary judgment should only be granted when all of the facts contained in all the applicable pleadings, depositions, admissions, and affidavits have been construed most favorably to the nonmoving party, and it is clear that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Gardner v. Evans, 110 Idaho 925, 719 P.2d 1185 (1986). The evidence must be construed in the light most favorable to the party opposing the motion. Thompson v. Pike, 125 Idaho 897, 899, 876 P.2d 595, 597 (1994). In determining a motion for summary judgment, all reasonable inferences must be liberally construed in favor of the non-moving party. G & M Farms v. Funk Irrigation Co., 119 Idaho 514, 517, 808 P.2d 851, 854 (1991).

If the evidence reveals no disputed issues of material fact, then the motion was properly granted. Id. at 900, 876 P.2d at 598. If the evidence is conflicting on material issues, or if reasonable minds could reach different conclusions, summary judgment is not appropriate. Loomis v. City of Hailey, 119 Idaho 434, 436, 807 P.2d 1272, 1274 (1991). A material fact is one upon which the outcome of the case may be different. Rife v. Long, 127 Idaho 841, 849, 908 P.2d 143, 151 (1995)

ANALYSIS

1. The district court correctly held that the O'Guin boys were trespassers on the County property.

A trespasser is a person who goes or remains upon the premises of another without permission or invitation either express or implied. Bicandi v. Boise Payette Lumber Co., 55 Idaho 543, 44 P.2d 1103 (1935). There the Court held:

Anyone who goes upon the private property of another without lawful authority or without permission or invitation, express or implied, is a trespasser to whom the landowner owes no legal duty until his presence is discovered.

Id. at 552, 44 P.2d at 1102. Accord, Huyck v. Hecla Mining Co., 101 Idaho 299, 612 P.2d 142 (1980).

On the summary judgment motion, the district court heard evidence that the boys entered onto the County property where a canal intersects Ridge Street. The testimony showed that the site of the landfill was originally fenced back in 1988 and no trespassing signs were installed. The entire landfill was fenced in, except that portion of the fence on Ridge Street that one of the county's witnesses testified was the canal company access to the ditch. The controlled access into the landfill was via a gate that was open during operating hours, but otherwise locked. Frank, Jr., testified in his deposition that there was a fence along Ridge Street, as well as no trespassing signs that he was aware of, seeking to prohibit entry onto the County property. Frank, Jr., testified that he and his brothers had entered the landfill property, which provided a shortcut to school. The record discloses nothing from which the court could conclude the boys had permission or in any way were authorized to enter onto the County property.

The appellants argue that that the opening in the fence on Ridge Street at the canal was an open and obvious access point, which was not restricted. This argument, however, which suggests an "implied invitation" to enter into the property, does not alter the boys' status as trespassers but may be relevant to the landowners' duty to the children. See United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615 (1922) (an invitation to children may be implied from knowingly exposing something which attracts them on the land, but the principle, if accepted, must be very cautiously applied). Therefore, the facts before the district court support the court's conclusion that the boys were trespassing at the time of the accident.

2. The district court properly dismissed the plaintiffs' attractive nuisance claim.

The attractive nuisance doctrine under Idaho law applies only to children who were attracted onto the defendant's premises by a dangerous object or condition. Ambrose v. Buhl Joint School Distr., 126 Idaho 581, 585, 887 P.2d 1088, 1092 (Ct.App.1994). A plaintiff asserting attractive nuisance must prove:

(1) a structure/condition on the defendant's premises which the defendant knew or should have known in the exercise of due care, involved a reasonable risk of attraction and harm to children; (2) the structure or condition maintained or permitted on the property was peculiarly or unusually attractive to children; (3) the structure/condition was such that the danger was not apparent to immature minds; and (4) the plaintiff was attracted onto the premises by such structure/condition.

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