State v. Rubbermaid Inc.

• Decision Date: 26 September 1996
• Docket Number: No. 21566,21566
• Citation: 924 P.2d 615,129 Idaho 353
• Parties: STATE of Idaho, Lexington Insurance Company, Mount Hawley Insurance Company, Lloyds' Underwriters at London, and Commonwealth Insurance Company, Plaintiffs-Appellants, v. RUBBERMAID INCORPORATED, an Ohio corporation, Defendant-Respondent. Boise, February 1996 Term
• Court: Idaho Supreme Court

Page 615

924 P.2d 615

129 Idaho 353

STATE of Idaho, Lexington Insurance Company, Mount Hawley Insurance Company, Lloyds' Underwriters at London, and Commonwealth Insurance Company, Plaintiffs-Appellants, v. RUBBERMAID INCORPORATED, an Ohio corporation, Defendant-Respondent.

No. 21566.

Supreme Court of Idaho,

Boise, February 1996 Term.

Sept. 26, 1996.

Alan G. Lance, Attorney General; Aherin, Rice & Anegon, Lewiston; Ryder & Ryan, Seattle, WA, for appellants. Darrel W. Aherin argued, Lewiston,

Eberle, Berlin, Kading, Turnbow & McKlveen, Boise, for respondent. William A. Fuhrman argued, Boise.

SILAK, Justice.

This is an appeal by the State of Idaho and its insurers (the State) from a summary judgment entered by the district court in favor of the respondent Rubbermaid Inc. (Rubbermaid), in a case arising out of the January 1, 1992 fire in the Idaho State Capitol Building which originated from a smoldering cigarette deposited in a wastebasket allegedly manufactured by Rubbermaid. We vacate the order of summary judgment and remand to the district court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL BACKGROUND

On January 1, 1992, a part-time public information officer employed by the Attorney General's Office (the Employee), was working in her office cleaning out old files. She On January 14, 1993, the State sued Rubbermaid seeking damages resulting from the fire. The complaint alleged theories of negligence, negligent failure to warn, negligent failure to comply with safety standards, strict liability, and breach of implied warranty for damages resulting from Rubbermaid's failure to use a fire retardant in its design of its Model 2956 wastebasket. The State claimed that the 2956 wastebasket, made of polyethylene plastic, did not contain the fire but instead burned intensely and contributed fuel to both the ignition and spread of the fire. Rubbermaid denied that it proximately caused or contributed to the fire. It asserted that the State voluntarily assumed any risk of harm from the use of Rubbermaid's product, and that the State failed to give reasonable notice of any alleged breach of warranty.

placed the unwanted papers in a wastebasket in her office. While working the Employee was smoking and upon completion of her work, she emptied the contents of her ashtray into the same wastebasket in which she had placed her discarded papers. The Employee did not notice that a cigarette was still smoldering when she placed it in the wastebasket. The smoldering cigarette ignited the contents of the wastebasket. The fire spread from the wastebasket to the Employee's desk, to the rest of her office, to the Attorney General's Office, and then to the Budget Office a floor above. The fire caused approximately $3.4 million in damage to the State Capitol Building.

On April 28, 1994, Rubbermaid moved for summary judgment arguing that: (1) the State had not established that a Rubbermaid wastebasket was involved in the fire; (2) the State could not establish a prima facie case of defective design; and (3) the State's allegation based on failure to warn failed for lack of duty and causation. The State then filed an opposition brief and an affidavit of its expert, Frank Roberts, attempting to establish that the Rubbermaid wastebasket Model 2956 was defective because it was not made of fire retardant material. A reply memorandum was then filed by Rubbermaid. On August 2, 1994, a hearing was held on the summary judgment motion. The district judge ruled from the bench in Rubbermaid's favor as to all counts of the complaint. A judgment was thereafter entered on August 5, 1994.

On August 19, 1994, the State moved for reconsideration urging the district court to reconsider its ruling as to Count I--negligence, Count III--negligent failure to comply with safety standards, and Count IV--strict liability. The State also argued that Rubbermaid did not raise causation as an issue except in regard to the failure to warn count, and therefore that the State did not submit proof on causation in responding to Rubbermaid's summary judgment motion because it was not an issue. The State argued that Rubbermaid's reply brief raised causation for the first time as to all counts, and that the district court improperly focused on causation as the basis for granting summary judgment. In support of its motion for reconsideration, the State filed a supplemental affidavit of the State's expert, Frank Roberts, and a videotape comparing a metal wastebasket with a Rubbermaid 2956 plastic wastebasket. Rubbermaid then moved to strike the videotape and affidavit and also sought attorney fees in opposing the State's motion. After a hearing on the motions, the district court entered an order denying the State's motion for reconsideration and granting Rubbermaid's motion to strike. Rubbermaid was awarded its costs, but not attorney fees. Final judgment was entered on November 2, 1994, in favor of Rubbermaid and the State appealed.

II. ISSUES ON APPEAL

1. Whether the district court, in ruling on the summary judgment motion, improperly decided issues not raised in Rubbermaid's motion and initial brief.

2. Whether there were material factual issues in dispute, rendering summary judgment improper.

III. ANALYSIS

A. Standard Of Review.

On an appeal from an order granting summary judgment, our standard of review

is the same as the standard used by the district court in ruling on a motion for summary judgment. Thomson v. Idaho Ins. Agency, Inc., 126 Idaho 527, 529, 887 P.2d 1034, 1036 (1994); Farm Credit Bank of Spokane v. Stevenson, 125 Idaho 270, 272, 869 P.2d 1365, 1367 (1994). Upon review, the Court must liberally construe facts in the existing record in favor of the nonmoving party, and draw all reasonable inferences from the record in favor of the nonmoving party. Thomson, 126 Idaho at 529, 887 P.2d at 1036; Bonz v. Sudweeks, 119 Idaho 539, 541, 808 P.2d 876, 878 (1991). Summary judgment is appropriate 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." McCoy v. Lyons, 120 Idaho 765, 769, 820 P.2d 360, 364 (1991). If there are conflicting inferences contained in the record or reasonable minds might reach different conclusions, summary judgment must be denied. Bonz, 119 Idaho at 541, 808 P.2d at 878.

B. Proximate Cause Was Properly Considered By The District Court Due To The State's Failure To Timely Object To Rubbermaid's Inclusion Of This Issue In Its Reply Memorandum.

The thrust of the State's claim is that a Rubbermaid wastebasket proximately caused the spread of the January 1, 1992 fire in the State Capitol Building. The State argues on this appeal that in Rubbermaid's opening memorandum in support of its motion for summary judgment, it raised the issue of proximate cause only with respect to the State's failure to warn claim, but failed to raise it as to the remaining counts in the complaint. The State further argues that Rubbermaid did not raise the causation issue as to the remaining counts in the complaint until its reply memorandum. The State thus claims that the district court improperly considered issues not presented before it.

In support of this argument, the State relies on this Court's recent opinion in Thomson v. Idaho Ins. Agency, Inc., 126 Idaho 527, 887 P.2d 1034 (1994), for the proposition that a nonmoving party in a summary judgment motion need only respond to issues raised by the moving party. The State argues that since Rubbermaid raised the proximate cause issue as to all claims only in its reply memorandum, that the State was not required to respond, and therefore, the district court should not have decided this issue on summary judgment. While we agree that Rubbermaid only addressed proximate cause as to the State's negligent failure to warn claim in its initial summary judgment memorandum, and that pursuant to our holding in Thomson the State would ordinarily be required to respond only to that particular proximate cause argument, for the following reasons we hold that the State has waived its right to object on procedural grounds to the district court ruling on proximate cause as it relates to all five counts in the complaint.

We base this ruling on the State's entire course of conduct during the summary judgment proceedings. Even if Rubbermaid did not raise the proximate cause issue as to all claims in its opening memorandum, the State argued throughout its response memorandum that the Rubbermaid wastebasket caused the spread of the fire. Thus, in its reply memorandum, Rubbermaid attempted to rebut the State's contentions on that issue, namely, that the State's expert, Frank Roberts, had failed to establish that the wastebasket had proximately caused the spread of the fire and that the evidence established the contrary. At the August 2, 1994 hearing on the motion, the State never asserted that Rubbermaid improperly raised the issue of proximate cause for the first time in its reply memorandum. To the contrary, the State orally argued that the wastebasket was the cause of the spread of the fire. Further, if after Rubbermaid filed its reply memorandum the State believed additional issues had been raised, it could have requested a continuance pursuant to I.R.C.P. 56(c), or submitted additional affidavits to contest the issues raised in Rubbermaid's reply memorandum pursuant to I.R.C.P. 56(f). The State did not object to the inclusion of these issues in any manner.

The State raised its objection for the first time in its motion for reconsideration, after the district court's ruling from the bench at the August 2, 1994 hearing, and after the court entered judgment on August 5, 1994. At the hearing on the motion for reconsideration, when asked by the district court how it was supposed to discern the fact that the proximate...