STEPHEN BOSWELL and KARENA BOSWELL, husband and wife, Plaintiffs-Appellants,
AMBER DAWN STEELE, the Estate of MARY STEELE, Defendants-Respondents
This decision is not final until exception of the 21
day petition for rehearing period. Pursuant to rule 118 of the Idaho Appellate Rules.
[Copyrighted Material Omitted]
2015 Opinion No. 21
Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Don Harding, District Judge. Hon. William H. Woodland, District Judge.
Summary judgment vacated, case remanded.
Merrill & Merrill; Kent A. Higgins, Pocatello, for appellants. Kent A. Higgins argued.
Cooper & Larsen; Reed W. Larsen, Pocatello for respondents. Reed W. Larsen argued.
WALTERS, Judge Pro Tem. Chief Judge MELANSON and Judge LANSING CONCUR.
WALTERS, Judge Pro Tem
Stephen and Karena Boswell (the Boswells) appeal from the district court's order granting summary judgment to Amber Dawn Steele and the Estate of Mary Steele (the Steeles), and the denial of the Boswells' motion to reconsider. They also appeal from the district court's decision to strike an animal control officer's affidavit, and the court's order denying their motion to compel a deposition of an insurance adjuster. In their amended complaint, the Boswells alleged strict liability, negligence, premises liability, and negligence per se as causes of action. The claims stated in the complaint stem from Stephen Boswell being bitten by Amber Steele's dog. We vacate the judgment and remand this case to the district court.
FACTUAL AND PROCEDURAL BACKGROUND
After Amber's dog bit Stephen, the Boswells filed a complaint alleging the various causes of action. Both parties moved for summary judgment. The district court concluded the following facts were undisputed: Mary Steele owned a house in Pocatello where she lived with her granddaughter, Amber Steele. Mary owned a Shih Tzu and Amber owned a Scottish Terrier, Zoey. Both dogs lived with the Steeles at the residence. A fence wrapped around the backyard to keep the dogs on the property. Mary also placed " Beware of Dog" signs on the gates of
the property. For the most part, Amber kept Zoey in a room in the basement when she left the house. When Zoey was kept upstairs, Mary used a gate to keep her dog and Zoey in the kitchen.
On the day of the bite, Stephen drove Mary, his mother-in-law, home after she visited with the Boswells at their home. When Stephen and Mary entered the residence, the two dogs were in the kitchen behind the gate. Zoey was barking and growling. Without Mary's knowledge, Stephen walked over to the gate and extended his right hand to Zoey with a closed fist. As he reached his hand towards Zoey, the dog bit a piece of flesh off of the back of his hand. Stephen went to the hospital to have his injuries treated. An animal control officer made a report of the incident. Stephen's wife, Karena, told the officer she previously witnessed Zoey bite an individual, but the animal control officer did not include this in her report. In his deposition, Stephen admitted that before the incident took place, he did not think Zoey was a dangerous or vicious dog. He also said he believed that Mary did nothing wrong in keeping the dogs behind the gate in the kitchen.
Prior to biting Stephen, there were two other incidents where Zoey bit or nipped at someone. The first incident occurred when Zoey bit one of Amber's friends at a barbeque party held at Mary's house. The friend was playing ball with Zoey and at one point went to pick the ball up under Amber's legs. As Amber's friend reached for the ball, Zoey bit her hand. The friend indicated a belief that Zoey was being protective of Amber. The bite drew some blood, but was easily cleaned and bandaged. As described by Karena, the second incident occurred at another party at Mary's house. A different friend of Amber's was bit by Zoey. The bite drew blood, but did not require medical attention and was described as not being a big deal. The two incidents were not reported to authorities or animal control, there was no need for medical attention, and no lawsuits were filed.
Based on these facts, the district court granted summary judgment in favor of the Steeles. The district court also struck an affidavit of the animal control officer and denied the Boswells' request to depose an insurance adjuster. The case was then reassigned to another district judge. The Boswells filed a motion to reconsider, which was denied. The district court entered a judgment in favor of the Steeles, dismissing the Boswells' claims. The Boswells timely appeal.
Summary judgment under Idaho Rule of Civil Procedure 56(c) is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. On appeal, we exercise free review in determining whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Edwards v. Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct. App. 1986). When assessing a motion for summary judgment, all controverted facts are to be liberally construed in favor of the nonmoving party. Furthermore, the trial court must draw all reasonable inferences in favor of the party resisting the motion. G & M Farms v. Funk Irrigation Co., 119 Idaho 514, 517, 808 P.2d 851, 854 (1991); Sanders v. Kuna Joint School Dist., 125 Idaho 872, 874, 876 P.2d 154, 156 (Ct. App. 1994).
The party moving for summary judgment initially carries the burden to establish that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. Eliopulos v. Knox, 123 Idaho 400, 404, 848 P.2d 984, 988 (Ct. App. 1992). The burden may be met by establishing the absence of evidence on an element that the nonmoving party will be required to prove at trial. Dunnick v. Elder, 126 Idaho 308, 311, 882 P.2d 475, 478 (Ct. App. 1994). Such an absence of evidence may be established either by an affirmative showing
with the moving party's own evidence, or by a review of all the nonmoving party's evidence and the contention that such proof of an element is lacking. Heath v. Honker's Mini-Mart, Inc., 134 Idaho 711, 712, 8 P.3d 1254, 1255 (Ct. App. 2000). Once such an absence of evidence has been established, the burden then shifts to the party opposing the motion to show, via further depositions, discovery responses, or affidavits, that there is indeed a genuine issue for trial or to offer a valid justification for the failure to do so under I.R.C.P. 56(f). Sanders, 125 Idaho at 874, 876 P.2d at 156.
The United States Supreme Court, in interpreting Federal Rule of Civil Procedure 56(c), which is identical in all relevant aspects to I.R.C.P. 56(c), stated:
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be " no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is " entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citations omitted). The language and reasoning of Celotex has been adopted in Idaho. Dunnick, 126 Idaho at 312, 882 P.2d at 479.
The Boswells' amended complaint alleged strict liability, negligence, premises liability, and negligence per se. Based on its view of undisputed facts, the district court concluded that the Steeles were entitled to ...