BAERBEL LITKE, surviving spouse and successor in interest for Klaus Kummerling, and the marital community composed thereof, Plaintiff-Respondent,
MARK MUNKHOFF and ROBYN MUNKHOFF, husband and wife, and the marital community composed thereof, Defendants-Appellants, and CITY OF COEUR D'ALENE, IDAHO, a political subdivision of the State of Idaho, COEUR D'ALENE IDAHO POLICE CHIEF RON CLARK; and SAM MUNKHOFF, a single person, Defendants.
Opinion No. 44
from the District Court of the First Judicial District, State
of Idaho, Kootenai County. Hon. Cynthia K. C. Meyer, District
judgment of the district court is affirmed. Costs on appeal
are awarded to respondent.
Winston & Cashatt, Spokane, for Appellants. Collette C.
Powell, Kuznetz & Parker, PS, Spokane, for Respondent.
Michael Parker argued.
and Robyn Munkhoff (the "Munkhoffs") appeal the
district court's denial of their motions for summary
judgment and a new trial or remittitur under Idaho Code
section 6-807 and Idaho Rules of Civil Procedure 59, 59.1,
and 60. We affirm the district court's judgment.
I. FACTS AND PROCEDURE
November 26, Animal Control Officer Laurie Deus responded to
a report of a vicious dog. When she arrived on scene, Officer
Deus observed a black and white pit bull, later identified as
"Bo, " aggressively charging at anyone who got near
him. Bo was so aggressive that Officer Deus had to call in a
second officer to help capture him. Bo was declared
aggressive by Officer Deus the same day. The two officers
were finally forced to use a Taser on Bo to subdue and
control him. The following day the Munkhoffs' son Sam
Munkhoff ("Sam") called Animal Control to report Bo
missing. Over the phone, Officer Deus informed Sam that she
was declaring Bo aggressive, that Sam must follow the
provisions contained in Coeur d'Alene City Ordinance
6.20.030, and that Sam must sign the declaration form which
explained the requirements for keeping and controlling an
aggressive dog before he could claim him.
told Officer Deus that Bo would be better controlled at the
Munkhoffs' home than at his apartment. Officer Deus met
Sam at the Munkhoffs' home and determined the fence met
the specifications contained in Ordinance 6.20.030. Under
this ordinance, Officer Deus also informed Sam that signs
must be posted warning the public to "Beware of Dog,
" and if Bo left the enclosed yard he needed to be
muzzled. Sam was given a written copy of Ordinance 6.20.030
and signed the declaration form. Before Officer Deus left,
Mark Munkhoff ("Mark") arrived. Because Bo was
expected to stay with the Munkhoffs Officer Deus explained to
Mark the requirements for keeping and controlling an
aggressive dog and asked if he was willing to contain Bo
according to Ordinance 6.20.030. Mark verbally agreed to
follow the requirements as Officer Deus explained them to
April 30, 2013, Officer Deus received a report of a dog bite
that occurred on April 29, 2013, near the Munkhoffs'
home. Animal Control Officer Gilbertson responded to the
call. The owner of the dog was identified as Sam. Sam was
cited for having an animal running at large, an animal
attacking, biting or chasing, and Bo was declared dangerous.
Officer Gilbertson cited Mark as well, whose dog Dexter was
also running at large. At the same time, Officer Gilbertson
told Mark that he was declaring Bo dangerous. Mark told
Officer Gilbertson that "Sam is absolutely not allowed
to move back in nor is he allowed to bring Bo back even for a
visit." Officer Deus, who was trying to locate Sam and
Bo, followed up with Mark the next day to have either Sam or
Mark sign the form declaring Bo dangerous. Officer Deus could
not reach Sam, but she spoke with Mark on the phone. Mark
stated that "if that dog shows up [I] will shoot
weeks before Bo bit Klaus Kummerling ("Kummerling"),
Sam took a job in North Dakota. Sam left Bo at the
Munkhoffs' home beginning on July 5, 2013. Kummerling,
his wife Baerbel Litke (the "Kummerlings"), and the
Munkhoffs are neighbors, whose properly line is separated by
a wooden fence. Kummerling had often seen Bo in the
Munkhoffs' backyard prior to the incident, and Bo would
frequently bark at Kummerling and charge the fence in an
aggressive manner whenever Kummerling was working in his
yard. On July 25, 2013, Sam returned from North Dakota for a
visit and was staying with the Munkhoffs. That afternoon Sam
took Bo for a walk. Bo was not muzzled as required under
Coeur d'Alene City Ordinance 6.20.030. When Sam and Bo
walked past the Kummerlings' driveway, Kummerling asked
Sam if it was "okay to pet the dog." Kummerling
stated that if he could make friends with Bo, then maybe Bo
would stop charging at the fence. Sam, who was holding
Bo's leash, gave Kummerling permission to pet the dog.
When Kummerling bent down and reached out to pet him, Bo
lunged at him, knocked him to the ground, and bit his face.
Kummerling's lower lip and chin were partially torn from
his face, and a segment of his face was torn away completely.
29, 2015, the Kummerlings filed a complaint, alleging claims
for negligence, gross negligence, outrage, and nuisance
against the City of Coeur d'Alene, Coeur d'Alene
Police Chief Ron Clark, the Munkhoffs, and Sam. The
Kummerlings did not allege in their complaint that the
Munkhoffs were vicariously liable for Sam's conduct. The
district court dismissed the claims against the City and
Chief Clark. The Munkhoffs filed a motion for summary
judgment on March 17, 2016. The district court granted the
Munkhoffs' motion as to all claims except the claim for
negligence. Sam, who represented himself, did not join in the
Munkhoffs' summary judgment motion.
September 19-22, 2016, this case was tried to a jury. The
jury returned a special verdict, finding that the Munkhoffs
and their son Sam were negligent, negligent per se, and that
their negligence was the actual and proximate cause of
Kummerling's injuries. The jury allocated fault and
calculated damages. Kummerling was awarded $16, 603.00 in
economic damages and $185, 000.00 in non-economic damages.
The Munkhoffs moved for a new trial pursuant to Idaho Rules
of Civil Procedure 59(a)(1)(A), (F), and (G), for remittitur
pursuant to Idaho Code section 6-807 and Rule 59.1, and for
relief from judgment pursuant to Rule 60(b)(3). The district
court denied the motions, and a judgment was entered on
November 7, 2016. On December 14, 2016, the Munkhoffs timely
filed a notice of appeal.
STANDARD OF REVIEW
this Court reviews the district court's ruling on a
motion for summary judgment, it employs the same standard as
the district court's original ruling on the motion.
Infanger v. City of Salmon, 137 Idaho 45, 46-47, 44
P.3d 1100, 1101-02 (2002). In a motion for summary judgment,
the moving party bears the burden of proving the absence of a
material fact. Sadid v. Idaho State University, 151
Idaho 932, 938, 265 P.3d 1144, 1150 (2011) (citation
omitted). "When considering whether the evidence in the
record shows that there is no genuine issue of material fact,
the trial court must liberally construe the facts, and draw
all reasonable inferences, in favor of the nonmoving
party." Liberty Bankers Life Ins. Co. v.
Witherspoon, Kelley, Davenport & Toole, P.S., 159
Idaho 679, 685, 365 P.3d 1033, 1040 (2016). Although
circumstantial evidence can create a genuine issue for trial,
a mere scintilla of evidence is insufficient to demonstrate
the existence of a genuine issue of material fact.
Callies v. O'Neal, 147 Idaho 841, 846, 216 P.3d
130, 165 (2009) (citation omitted). This Court reviews
"only that portion of the record which was before the
trial court at the time the summary judgment motion was
presented." Brown v. Matthews Mortuary, Inc.,
118 Idaho 830, 833, 801 P.2d 37, 40 (1990). "If the
evidence reveals no disputed issues of material fact, then
only a question of law remains, over which this Court
exercises free review." Lapham v. Stewart, 137
Idaho 582, 585, 51 P.3d 396, 399 (2002) (citation omitted).
standard of review applicable to a district court's
decision to grant or deny a new trial under Idaho Rule of
Civil Procedure 59(a) is abuse of discretion. Burggraf v.
Chaffin, 121 Idaho 171, 173, 823 P.2d 775, 777 (1991).
"The decision by a trial court to grant or deny a motion
for a new trial rests within the sound discretion of the
trial court and will not be disturbed on appeal absent a
showing of a clear and manifest abuse of discretion."
Barnett v. Eagle Helicopters, Inc., 123 Idaho 361,
363, 848 P.2d 419, 421 (1992) (citation omitted). When a
district court's discretionary decision is reviewed on
appeal, "this Court considers: (1) whether the trial
court correctly perceived the issue as one of discretion; (2)
whether the trial court acted within the boundaries of this
discretion and consistent with the legal standards applicable
to the specific choices available to it; and (3) whether the
trial court reached its decision by an exercise of
reason." Rockefeller v. Grabow, 139 Idaho 538,
545, 82 P.3d 450, 457 (2003) (citation omitted).
This Court will not address whether the district court erred
when it denied the ...