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Litke v. Munkhoff

Supreme Court of Idaho

April 27, 2018

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.

         2018 Opinion No. 44

          Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Cynthia K. C. Meyer, District Judge.

         The judgment of the district court is affirmed. Costs on appeal are awarded to respondent.

          Winston & Cashatt, Spokane, for Appellants. Collette C. Leland argued.

          Powell, Kuznetz & Parker, PS, Spokane, for Respondent. Michael Parker argued.

          BEVAN, Justice

         Mark 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.


         On 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.

         Sam 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 him.

         On 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 it."

          In the weeks before Bo bit Klaus Kummerling[1] ("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.

         On July 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.

         On 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.


         When 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).

         The 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).

         III. ANALYSIS

         A. This Court will not address whether the district court erred when it denied the ...

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