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Forbush v. Sagecrest Multi Family Property Owners' Association, Inc.

Supreme Court of Idaho

June 20, 2017

TRAVIS FORBUSH and GRETCHEN HYMAS, individually and as the natural parents of PRIVATE FIRST CLASS MCQUEN C. FORBUSH, USMC (Deceased), and BREANNA HALOWELL, Plaintiffs-Appellants,
v.
SAGECREST MULTI FAMILY PROPERTY OWNERS' ASSOCIATION, INC., and JOHN KALSBEEK, individually and as President of the Sagecrest Multi Family Property Owners' Association, Defendants-Respondents, and JAY ARLA, individually and as vice president of the Sagecrest Multi Family Property Owners' Association; CHRIS SCHWAB, individually and as secretary of the Sagecrest Multi Family Property Owners' Association; DAVID MEISNER, individually and as treasurer of the Sagecrest Multi Family Property Owners' Association; FIRST RATE PROPERTY MANAGEMENT, INC., TONY DROST, individually and as president of First Rate Property Management, Inc.; SAGECREST DEVELOPMENT, LLC; PARK CITY PLUMBING, INC., nka PC PLUMBING, INC.; WIDGEON MECHANICAL, LLC nka IDAHO GEOTHERMAL, LLC; A.O. SMITH, INC.; MATTHEW E. SWITZER TRUST, and MATTHEW E. SWITZER, individually and as Trustee of the Matthew E. Switzer Trust; GOODMAN MANUFACTURING COMPANY, LP; ANFINSON PLUMBING, LLP; DANIEL BAKKEN, individually and as employee of Anfinson Plumbing, LLP; H&H PROPERTIES, LLC; and INTERMOUNTAIN GAS COMPANY, Defendants.

         2017 Opinion No. 70

         Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.

         District court order granting summary judgment, affirmed in part, reversed in part, and remanded.

          Peterson Lawyers, Boise and The Spence Law Firm, Jackson, WY, for appellants. Michael F. Lutz argued.

          Barnham, Howell & Gunn, PLLC, and Moore & Elia, LLP, Boise, for respondents. John Howell argued for respondent Kalsbeek and Michael J. Elia argued for respondent Sagecrest POA.

          BURDICK, Chief Justice.

         Travis Forbush and Gretchen Hymas, individually and as natural parents of McQuen C. Forbush and Breanna Halowell (Appellants), appeal the Ada County District Court's grant of summary judgment to Sagecrest Multifamily Property Owners' Association, Inc., and its President, Jon Kalsbeek (Respondents). Forbush and Halowell were overnight guests of a tenant who leased a unit at the Sagecrest Apartment Complex (Sagecrest). During the night, hazardous levels of carbon monoxide filled the unit, killing Forbush and injuring Halowell. Appellants brought tort claims against Respondents after the incident. The district court granted summary judgment to Respondents. We affirm in part, reverse in part, and remand.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This appeal concerns an incident in which a vent on a water heater clogged and caused the emission of hazardous levels of carbon monoxide in unit 4624 at Sagecrest on November 10, 2012. The incident killed eighteen-year-old Private First-Class McQuen C. Forbush, a U.S. Marine; and injured eighteen-year-old Breanna Halowell. Forbush and Halowell were overnight guests of unit 4624's tenant Adra Kipper.

         Sagecrest consists of forty-eight separate buildings, each containing four apartments. When Sagecrest was built, Sagecrest Development, LLC, recorded the Declarations of Covenants, Conditions, and Restrictions (CCRs). The CCRs instruct that individuals or entities hold fee title to the separate buildings, each containing the four apartments. The CCRs grant these individuals or entities the "exclusive right" to maintain the interiors of the apartments they own. The unit owners are shareholders in the Sagecrest Multifamily Property Owners' Association (POA), a non-profit corporation. The CCRs task the POA with maintaining the exterior grounds at Sagecrest, including the sidewalks, landscaping, common areas, and fences. By contrast, the CCRs task unit owners with maintaining the "entire interior" of the units they own. To meet these maintenance duties, the CCRs require both the POA and unit owners to employ the same property management company. To that end, the POA and unit owners entered into maintenance contracts with First Rate Property Management (FRPM) in March 2010.

         In spring 2011, carbon monoxide concerns emerged at Sagecrest. Evidently, some tenants had reported smelling gas inside of their units. Intermountain Gas was contacted about these concerns and explained the problem was due to certain water heaters' venting systems. Two types of water heaters were used at Sagecrest. Venting on one type had "a metal screen around the bottom of the tank." Venting on the second type "d[id]n't have a screen that goes around, but one in the middle on the bottom." Venting on the second type was prone to clogging, which, in turn, caused carbon monoxide to emit. After meeting with Intermountain Gas about the problem, FRPM surmised that "we just need to clean/vacuum off the screens and it will be fine."

         Nonetheless, carbon monoxide concerns grew more serious that summer. In July 2011, Intermountain Gas was again contacted after another tenant reported smelling gas inside of her unit. Intermountain Gas described the carbon monoxide level as "deadly" and attributed it to the unit's water heater. That same month, a professional plumber, Ben Davis, inspected the water heaters at Sagecrest, identified the problematic venting system, and advised that "these issues be solved before any tenants suffer health problems or death." Thereafter, FRPM reasoned that more than just cleaning or vacuuming the screens was necessary, concluding "the only way to fix this problem without modifying the water heater is to replace them completely."

         Although the POA knew of the carbon monoxide concerns, it did not move to modify or replace the water heaters. As the POA's President Jon Kalsbeek explained, "the water heaters are interior items of each unit" and, therefore, "an owners [sic] choice on how to handle this situation." Even so, the POA, primarily through Kalsbeek, became involved with the carbon monoxide issue in several ways. Although the CCRs give unit owners the "exclusive right" over unit interiors, Tony Drost, FRPM's President, testified that the POA, through Kalsbeek, controlled "global issues" that were complex-wide, which included the water heaters. For example, the POA instructed FRPM to conduct carbon monoxide testing inside of the units every three months. To that end, the POA issued two sets of procedures governing carbon monoxide testing. Those procedures also governed the installation of hard-wired carbon monoxide alarms. And, in September 2011, the POA enlisted an engineering firm in an effort to explore solutions short of replacing the water heaters. According to the engineering firm, the various solutions were to (1) increase "fresh air intakes"; (2) replace existing water heaters; and (3) replace "the smoke detectors with CO/Smoke detector combination sensor[s.]"

         In November 2011, FRPM relayed the engineering firm's findings to unit owners. Matthew Switzer, who owns the building in which unit 4624 sits, responded that he was unaware of any carbon monoxide issues with his units. FRPM clarified that Switzer's units had "checked in good during the CO detecting." FRPM further indicated that it would contact Switzer if later testing revealed carbon monoxide concerns with his units.

         Under the POA's directive, FRPM conducted carbon monoxide testing on March 9, 2012. That testing revealed a high level of carbon monoxide in several units, including unit 4624. However, that testing was later contradicted. When Intermountain Gas tested unit 4624 on March 12, 2012, it reported normal, non-hazardous levels of carbon monoxide. In any event, although FRPM had stated it would contact Switzer if testing revealed carbon monoxide concerns with his units, Switzer was never contacted about the high levels discovered on March 9, 2012.

         Warnings were distributed to tenants following the high levels of carbon monoxide discovered on March 9, 2012. The warning, placed on unit 4624's front door, informed tenant Adra Kipper that her unit's water heater was emitting "higher levels of carbon monoxide than we would like to see." The warning further informed Kipper that her water heater would be "replaced next week." A battery-powered carbon monoxide alarm was provided along with the warning because, although FRPM had begun to install hard-wired alarms under the POA's directive, a hard-wired alarm had not yet been installed in unit 4624.

         Kipper's water heater was never replaced. And, although Kipper used the battery-powered carbon monoxide alarm initially, she eventually removed the alarm's batteries and placed it in a closet after it started beeping, apparently due to low batteries. Consequently, when Kipper had two overnight guests-Forbush and Halowell-staying over on November 10, 2012, no alarm sounded when the vent on Kipper's water heater clogged and caused the emission of hazardous levels of carbon monoxide. The incident killed Forbush and injured Halowell.

         Appellants filed their initial complaint on March 7, 2013, and eventually filed four amended complaints. They named several parties as defendants, including the POA and Kalsbeek, Respondents in this appeal. The district court granted summary judgment to Respondents. Appellants bring this timely appeal.

         II. ISSUES ON APPEAL

         1. Did the district court properly grant summary judgment to the POA?

         2. Did the district court properly grant summary judgment to Kalsbeek?

         3. Should we award attorney fees on appeal?

         III. STANDARD OF REVIEW

         This Court reviews a summary judgment order under the same standard

the district court used in ruling on the motion. Kolln v. Saint Luke's Reg'l Med. Ctr., 130 Idaho 323, 327, 940 P.2d 1142, 1146 (1997). That is, 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." I.R.C.P. 56(c). We construe disputed facts in favor of the non-moving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the non-moving party. Major v. Sec. Equip. Corp., 155 Idaho 199, 202, 307 P.3d 1225, 1228 (2013).

Mitchell v. State, 160 Idaho 81, 84, 369 P.3d 299, 302 (2016).

         The main issues in this appeal trigger negligence, which consists of 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." Grabicki v. City of Lewiston, 154 Idaho 686, 691, 302 P.3d 26, 31 (2013) (citation omitted). More specifically, this appeal centers on whether a duty existed, which is generally a question of law over which this Court has free review. See Gagnon v. W. Bldg. Maint., Inc., 155 Idaho 112, 115, 306 P.3d 197, 200 (2013). However, whether a duty existed becomes a question of fact if it requires resolution of disputed facts. See Coghlan v. Beta Theta Pi Fraternity, 133 Idaho 388, 402, 987 P.2d 300, 314 (1999).

         IV. ANALYSIS

         The three main issues raised on appeal are whether (A) summary judgment was properly granted to the POA; (B) summary judgment was properly granted to Kalsbeek; and (C) Respondents are entitled to attorney fees on appeal. We discuss each below.

         A. Did the district court properly grant summary judgment to the POA?

         Appellants contend the district court erred by granting summary judgment to the POA because triable issues of fact surround whether the POA (1) owed a premises liability-based duty of care; (2) owed a duty of care it acquired as a result of voluntary undertakings; and (3) is vicariously liable for FRPM's conduct.

         1. Premises liability

         Appellants first argue the POA owed a premises liability-based duty of care to Forbush and Halowell. As a threshold matter, we note that the POA neither owned nor occupied unit 4624. Instead, Switzer owns unit 4624, and tenant Adra Kipper occupied unit 4624. We must therefore decide whether a premises liability-based duty of care can be imposed on a party who neither owns nor occupies the property at issue.

         Appellants correctly inform us that "the general rule of premises liability is that one having control of the premises may be liable for failure to keep the premises in repair." Jones v. Starnes, 150 Idaho 257, 261, 245 P.3d 1009, 1013 (2011) (quoting Heath v. Honker's Mini-Mart, Inc., 134 Idaho 711, 713, 8 P.3d 1254, 1256 (Ct. App. 2000)). Appellants maintain that the POA had control over unit interiors under the CCRs and, regardless of the CCRs, actually exerted control over unit interiors. Consequently, Appellants assert it is irrelevant that the POA neither owned nor occupied unit 4624.

         Appellants' position overlooks how our premises liability cases are limited to actions involving owners or occupiers of land and their agents. E.g., Rountree v. Boise Baseball, LLC, 154 Idaho 167, 171, 296 P.3d 373, 377 (2013) ("The duty owed by owners and possessors of land depends on the status of the person injured on the land . . . ." (emphasis added)); Stem v. Prouty, 152 Idaho 590, 591-92, 272 P.3d 562, 563-64 (2012) (analyzing premises liability claim against owner of property); Harrison v. Taylor, 115 Idaho 588, 595, 768 P.2d 1321, 1328 (1989) ("Henceforward, owners and occupiers of land will be under a duty of ordinary care under the circumstances towards invitees who come upon their premises."). Thus, we reject Appellants' premises liability argument and reaffirm our case law holding that a premises liability-based duty of care may be imposed only on owners or occupiers of land and their agents.

         The dissent, however, maintains that status as an owner or occupier is irrelevant. The dissent's analysis wholly forgets that premises liability furnishes a fundamental tripartite framework, under which land entrants are defined as an invitee, a licensee, or a trespasser. E.g., Stiles v. Amundson, 160 Idaho 530, 532 n.3, 376 P.3d 734, 736 n.3 (2016). The dissent's analysis renders the well-established tripartite framework inapplicable. A stranger who neither owns nor occupies the land at issue could not request an invitee to visit the land so as to confer a benefit on the land to the stranger, given that the stranger has no right to the land in the first place. Similarly, a stranger is without authority to authorize a licensee to enter land to which the stranger has no right. Finally, it cannot be said that a trespass occurs when a person enters land to which the stranger has no right simply because the stranger did not authorize that person's visit. Nevertheless, the dissent's analysis would permit these scenarios to be litigated under the rubric of "premises liability."

         In the dissent's view, control is the essential test. While the dissent creates several hypothetical scenarios that are irrelevant to this case in an attempt to show that some degree of control, by itself, should be sufficient to trigger premises liability, this Court has never resolved a premises liability case in such a manner. Three of our cases firmly reinforce that premises liability does not extend beyond owners or occupiers of the premises and their agents, and that control determines which party, as between the owner or occupier and their agents, had control of the premises during the relevant time. First, in Otts v. Brough, 90 Idaho 124, 131, 409 P.2d 95, 98 (1965), superseded on other grounds by I.C. § 6-801, we explained:

Owners or persons in charge of property owe to an invitee or business visitor the duty to keep the premises in a reasonably safe condition, or to warn the invitee of hidden or concealed dangers of which the owner or one in charge knows or should know by exercise of reasonable care, in order that the invitee be not unnecessarily or unreasonably exposed to danger.

Otts concerned the duty owed by a general contractor to a subcontractor. Id. at 131-32, 409 P.2d at 98-99. The general contractor occupied the worksite at issue, as he "stated that he was continually on the job site; that every day he supervised the entire work of the construction of the building[.]" Id. at 132, 409 P.2d at 99. We reversed summary judgment that had been granted to the general contractor, concluding triable issues of fact surrounded the general contractor's liability. Id. at 135-36, 409 P.2d at 101-02. Otts, therefore, forecloses the dissent's assertion that our ruling today would allow "a general contractor or construction manager, who exercises the requisite control over the premises, [to] escap[e] liability . . . because he does not neatly fit within the categories elucidated today." As demonstrated in Otts, a general contractor or construction manager is regularly in occupation of the premises at issue. Additionally, the general contractor or construction manager is frequently an agent of the owner or occupier. But even ...


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