Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. David C. Nye, District Judge.
The opinion of the court was delivered by: Burdick, Justice
District court order granting summary judgment and partial summary judgment, affirmed.
Linda Brown alleges that her home was flooded as the result of a road reconstruction project on Pocatello Creek Road, performed by the City of Pocatello (Pocatello).
Brown argues that the district court erred in denying her Motion for Partial Summary Judgment, and in denying her Motion for Reconsideration, as Brown‟s Complaint sufficiently pled claims for nuisance and inverse condemnation. Brown also argues that the district court incorrectly granted summary judgment in favor of Pocatello on the basis that Pocatello enjoyed immunity from state law claims for money damages under I.C. § 6-904(7), as Pocatello failed to present evidence that the water had been diverted to Brown‟s home pursuant to a "plan or design"; and in finding that Brown‟s Complaint failed to allege a claim of nuisance or inverse condemnation. We affirm the district court‟s grant of summary judgment in favor of Pocatello, and denial of partial summary judgment in favor of Brown.
I. FACTUAL AND PROCEDURAL BACKGROUND
Linda Brown has lived in Pocatello, Idaho, since April of 2001. The backyard of her home is adjacent to Pocatello Creek Road and located approximately twenty feet below it. The portion of Pocatello Creek Road adjacent to Brown‟s home is owned and maintained by the City of Pocatello (Pocatello), a municipal corporation.
In the summer of 2005, after hiring an engineering consultant and entering into a "State/Local Agreement" with the State of Idaho, Pocatello undertook a construction project on the section of Pocatello Creek Road adjacent to Brown‟s home. Brown‟s home flooded on February 28, 2006, April 16, 2006, October 4, 2006, and December 27, 2006. Brown filed a notice of tort claim against Pocatello on April 25, 2006, claiming that Pocatello had acted negligently in its construction project, allowing roadway water to pool on and adjacent to the roadway, with no sufficient means of diverting the water, resulting in the flooding of Brown‟s home. Pocatello attempted to prevent water from Pocatello Creek Road from entering Brown‟s home, first with gravel, then with sand bags, and finally with an asphalt barrier. No flooding has occurred since the asphalt barrier was erected.
On August 3, 2007, Brown filed a Complaint and Demand for Jury Trial. Pocatello filed a Motion for Summary Judgment on June 9, 2008, and Brown filed a Motion for Partial Summary Judgment on July 1, 2008, claiming in that motion that Pocatello‟s actions constituted a nuisance under I.C. § 52-101 et seq. and constituted an uncompensated taking of Brown‟s property. A hearing was held on July 28, 2008, and the district court issued its Decision on Motions for Summary Judgment on September 4, 2008, granting Pocatello‟s Motion for Summary Judgment, and dismissing Brown‟s claims for nuisance and inverse condemnation finding that these claims were raised for the first time at summary judgment proceedings. The district court entered its Judgment of Dismissal on September 15, 2008. On September 26, 2008, Brown filed a Motion for Reconsideration, followed by a Memorandum Supporting Plaintiff‟s Motion for Reconsideration on September 30, 2008. Brown‟s Motion for Reconsideration was denied in the district court‟s Decision on Motion for Reconsideration on November 7, 2008. Brown appealed on December 19, 2008.
1. Whether the district court erred in holding that Brown did not sufficiently place Pocatello on notice of claims for nuisance and inverse condemnation, and in dismissing these claims on the grounds that they were raised for the first time on summary judgment, and if so, whether summary judgment should properly have been granted in favor of Brown.
2. Whether the district court erred in granting summary judgment in favor of Pocatello, having found Pocatello enjoyed "plan or design" immunity, without requiring Pocatello to demonstrate that it was acting in accordance with a plan or design when Brown‟s property was damaged.
3. Whether Pocatello is entitled to attorney fees on appeal in accordance with I.C. §§ 6-918A or 12-117.
"On appeal from the grant of a motion for summary judgment, this Court‟s standard of review is the same as the standard used by the district court originally ruling on the motion." Boise Tower Assoc., LLC v. Hogland, 147 Idaho 774, 779, 215 P.3d 494, 499 (2009). Summary judgment is 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).
As discussed by this Court in Cramer v. Slater: "All disputed facts are to be construed liberally in favor of the nonmoving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the nonmoving party." Mackay v. Four Rivers Packing Co.,145 Idaho 408, 410, 179 P.3d 1064, 1066 (2008). If reasonable people might reach a different conclusion from conflicting inferences based on the evidence then the motion must be denied. Id. "If the evidence is conflicting on material issues or supports conflicting inferences, or if reasonable minds could reach differing conclusions, summary judgment must be denied." Doe v. Sisters of the Holy Cross, 126 Idaho 1036, 1039, 895 P.2d 1229, 1232 (Ct. App. 1995). 146 Idaho 868, 873, 204 P.3d 508, 513 (2009).
""The burden of proving the absence of material facts is upon the moving party.‟" Id. (quoting Baxter v. Craney, 135 Idaho 166, 170, 16 P.3d 263, 267 (2000)). The party opposing a motion for summary judgment "must respond to the summary judgment motion with specific facts showing there is a genuine issue for trial." Tuttle v. Sudenga Indus., Inc., 125 Idaho 145, 150, 868 P.2d 473, 478 (1994). "[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." Harpole v. State, 131 Idaho 437, 439, 958 P.2d 594, 596 (1998). "[A] moving party is entitled to summary judgment when the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that ...