Yellowstone Log Homes, LLC v. City of RigbyYellowstone Log Homes, LLC v. City of Rigby
The order of the district court is reversed, and the case is remanded.
Nelson Hall Parry Tucker, PLLC, Idaho Falls, for Plaintiff-Appellant-Cross Respondent, Yellowstone Log Homes, LLC. Weston S. Davis argued.
Hall Angell & Associates, LLP, Idaho Falls, for Defendant-Respondent-Cross Appellant, City of Rigby. Sam Angell argued.
_____________________STEGNER, Justice.
This case involves an alleged tort arising from the breach of a sewer lateral. Yellowstone
The district court concluded Yellowstone did not have standing under the Idaho Underground Facilities Damage Prevention Act (
I. FACTUAL AND PROCEDURAL BACKGROUND
This case began in spring 2020, when Direct Communications Rockland, Inc. (Direct Comm), contacted BorTek, a local excavation company, to bore through ground along Highway 48 in the City and “install a fiber communications line on behalf of [Direct Comm].” Prior to beginning the project, BorTek contacted Idaho Dig Line1 to begin the process of marking underground facilities, such as sewer pipes.
Yellowstone owned a rental home near the proposed excavation project (the Property). Before BorTek began excavating, “Rigby [through its agent] marked utilities in the area, but did not mark [Yellowstone‘s] service lateral” that connected the home to the City‘s main sewer system. During the project, “BorTek drilled through the service lateral leading to [Yellowstone]‘s property and placed the fiber line in the service lateral obstructing the flow of sewage.” Yellowstone alleged that “[t]his breach of the sewer pipe leading to [the Property] occurred in a public right-of-way.” As a result of the obstructed lateral, raw sewage backed up into the Property, causing extensive damage and rendering the Property uninhabitable.
After the sewer line was breached and the Property sustained significant damage, Yellowstone contacted the City, demanding that it repair the sewer line and compensate Yellowstone for the damages it had sustained. The City refused and recommended that Yellowstone contact Direct Comm, the company with which BorTek had contracted.
In June 2020, Yellowstone again demanded that the City “accept liability for payment of the cost of the diagnosis and repair of the line as well as the restoration of the residence[.]” The City once again denied that it had any duty to mark service lines to Yellowstone‘s property. In turn, Yellowstone notified the City that it intended to file a tort claim.
Yellowstone filed a Notice of Tort Claim with the City advising it of Yellowstone‘s intent to seek damages it sustained because of BorTek‘s breaching of the sewer linе. The City refused to accept responsibility. As a
The City later moved for summary judgment, reiterating the defenses identified in its answer. Yellowstone also moved for summary judgment, arguing that
The district court concluded that Yellowstone did not have standing to sue because Yellowstone did not have any preexisting rights as provided by
Alternatively, the district court found that the City‘s inability to locate the service lateral qualified as a discretionary function, which entitled the City to statutory immunity. Ultimately, the district cоurt concluded that BorTek, not the City, was the proper entity for Yellowstone to have sued. The district court explained: “It would be nearly impossible for the [c]ourt or a jury to accurately assess the elements of causation and damages without BorTek as a party which again bolsters the argument that the statute only provides a cause of action between excavators and owners.” As a result of its analysis, the district court granted summary judgment to the City and denied Yellowstone‘s motion for summary judgment. The district court then entered a judgment dismissing the case with prejudice.
Following the entry of judgment, the City filed a memorandum of costs and fees as the prevailing party pursuant to
Yellowstone appeals the district court‘s denial of its motion for summary judgment and the district court‘s grant of the City‘s motion for summary judgment, Yellowstone‘s subsequent motion to reconsider, and the district court‘s award of costs to the City. The City cross-appeals the district court‘s denial of its request for attorney fees.
II. STANDARDS OF REVIEW
In an appeal from an order of summary judgment, this Court‘s standard
of review is the same as the standard used by the trial court in ruling on a motion for summary judgment. Purdy v. Farmers Ins. Co. of Idaho, 138 Idaho 443, 445, 65 P.3d 184, 186 (2003). All disputed facts are to be construed liberally 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. Id. 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. Id. If the evidence reveals no disputed issues of material fact, then only a question of law remains, over which this Court exercises free review. Id.
Estate of Becker v. Callahan, 140 Idaho 522, 525, 96 P.3d 623, 626 (2004).
“This Court applies a de novo standard of review to questions of law.” Siercke v. Siercke, 167 Idaho 709, 713, 476 P.3d 376, 380 (2020) (citing Zeyen v. Pocatello/Chubbuck Sch. Dist. No. 25, 165 Idaho 690, 694, 451 P.3d 25, 29 (2019)).
Ware v. City of Kendrick, 168 Idaho 795, 798, 487 P.3d 730, 733 (2021).
This Court reviews awards of attorney fees and costs under an abuse of discretion standard. Dickinson Frozen Foods, Inc. v. J.R. Simplot Co., 164 Idaho 669, 676, 434 P.3d 1275, 1282 (2019) (internal quotation marks and citation omitted). When reviewing such an award for an abuse of discretion, the inquiry is “[w]hether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason.” Id. at 675, 434 P.3d at 1281 (alteration in original) (internal quotation marks and citation omitted).
III. ANALYSIS
A. The district court incorrectly concluded Yellowstone did not have standing to bring its lawsuit.
Yellowstone first argues that the district court erred in concluding that it did not have standing to assert a claim of negligence per se under the Act. The district court determined that
On appeal, Yellowstone does not dispute the district court‘s classification of it as an end usеr. Instead, Yellowstone argues that “[t]he Act does not preclude the standing of the public and end users” because several subsections of the Act acknowledge end users and their rights under the Act. Yellowstone maintains the district court‘s interpretation of
The district court focused on the language in
Yellowstone is among those recognized as being within the intended coverage of the Act. The “Legislative intent” provision of the Act states:
It is the intent of the legislature in enacting this chapter to create a system of stakeholder-driven education and enforcement addressing the prevention of damage to underground facilities, to assign responsibilities for locating and keeping acсurate records of underground facility locations, for preventing and repairing damage to existing underground facilities, for collecting, storing, analyzing and disseminating data related to underground facility damage and excavator downtime events, and for protecting the public health and safety from great personal harm including death, property damage and interruption in vital services caused by damage to existing underground facilities.
Thus, the Act is a legislative effort to prevent precisely what happened in this case. The Act requires that “the underground facility owner [the City] or the owner‘s agent shall locate and mark its locatable underground facilities with rеasonable accuracy . . . by surface-marking the location of the facilities.”
B. The district court erred in granting summary judgment tо the City.
After concluding that Yellowstone was precluded from suing the City based on the Act, the district court went on to conclude that even if Yellowstone had standing to sue the City, summary judgment in the City‘s favor was still appropriate because: “There is no evidence that the City breached the duty to 1) locate and mark its locatable service laterals with reasonable accuracy or 2) . . . locate and mark identified but unlocatable service laterals with the best information available to the owner of the underground facilities.
This Court has previously recognized that when a complaint alleges negligence and negligence per se, the latter is simply one manner of proving negligence. Brian & Christie, Inc. v. Leishman Elec., Inc., 150 Idaho 22, 25 n.1, 244 P.3d 166, 169 n.1 (2010); see also Steed v. Grand Teton Council of the Boy Scouts of Am., Inc., 144 Idaho 848, 853, 172 P.3d 1123, 1128 (2007) (“Negligence per se is simply one manner of proving a common
Here, Yellowstone asserted a claim for negligence per se under the Act and a claim for common law negligence. Although a plaintiff may only recover damages under one of these theories, Yellowstone made separate arguments and alleged the City owed a different duty under each claim. Accordingly, we will analyze each in turn.
1. Negligence per se
Yellowstone argues the duties set forth in the Act form the basis of a negligence per se claim because the Act imposed a duty upon the City to mark underground sewer lines in a public right-of-way with “reasonable accuracy” and the City did not do so. Yellowstone argues that the City breached this duty because it had the information it needed to locate the service lateral, but it chose not to maintain that information. Yellowstone also argues alternatively that if the sewer line was “identified but unlocatable[,]” then the City had a duty to use the “‘best information available’ to mark the lines. . . .” Yellowstone maintains that the City breached these statutory duties when it failed to mark the sewer lateral in the way that it did.
The district court found that Yellowstone had not brought forth evidence demonstrating that the City breached a duty assigned to it by the Act. Therefore, the district court concluded Yellowstone could not succeed on its claim for negligence per se.
A claim involving negligence per se has been described by this Court as follows:
In order to replace a common law duty of care with a duty of care from a statute or regulation, the following elements must be met: (1) the statute or regulation must clearly define the required standard of conduct; (2) the statute or regulation must have been intended to prevent the type of harm the defendant‘s act or omission caused; (3) the plaintiff must be a member of the class of persons the statute or regulation was designed to protect; and (4) the violation must have been the proximate cause of the injury.
Nation v. State, Dep‘t of Corr., 144 Idaho 177, 190, 158 P.3d 953, 966 (2007) (internal citations omitted). When the standard of care is defined by statute or regulation, “violations of such statutes and regulations may constitute negligence per se.” Id. (internal quotation marks and citation omitted).
The Act requires that the underground facility owner [the City] or the owner‘s agent shall locate and mark its locatable underground facilities with reasonable accuracy, as defined in
The second element of negligence per se is whether a statute or regulation was
It is the intent of the legislature in enacting this chapter to create a system of stakeholder-driven education and enforcement addressing the prevention of damage to underground facilities, to assign responsibilities for locating and keeping accurate records of underground facility locations, for preventing and repairing damage to existing underground facilities for cоllecting, storing, analyzing and disseminating data related to underground facility damage and excavator downtime events, and for protecting the public health and safety from great personal harm including death, property damage and interruption in vital services caused by damage to existing underground facilities.
The third element of negligence per se requires that the plaintiff must be a member of the class of persons the statute or regulation was intended to protect. Here again, the Act provides the answer to the question: “It is further the intent of the legislature that the [S]tate of Idaho, by adopting this chapter, reaffirms its primacy over underground facility damage prevention programs that protect the health, safety and property of its citizens . . . .”
The final question is whether a violation was the proximate cause of Yellowstone‘s injury. The determination of proximate cause is ordinarily a question for the jury. Considering the four factors involving establishment of negligence per se, they either have been established, or there are genuine issues of material fact that must be resolved by a jury in order to determine whether the City is liable to Yellowstone for negligence per se. Accordingly, we hold the district court erred in concluding Yellowstone‘s claim of negligence per se should be resolved against Yellowstone at summary judgment.
2. Negligence
Yellowstone also argues the district court erred in failing to address its common law negligence claim. Although the district court did not fully analyze Yellowstone‘s common law negligence claim, it did summarily hold that Yellowstone had failed to point to any “recognized preexisting duty the City owed” when it concluded that Yellowstone lacked standing to bring a claim under
The elements of a common law negligence action are (1) a duty, recognized by law, requiring the 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 injury; and (4) actual loss or damage.
O‘Guin v. Bingham County, 142 Idaho 49, 52, 122 P.3d 308, 311 (2005) (internal quotation marks and citation omitted). Under the common law, the duty owed is that of “a reasonable man[.]” Id. (internal quotation marks and citations omitted); see also negligence, Black‘s Law Dictionary (7th ed. 1999) (“The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation . . . .“).
The question of “whether a duty existed . . . is generally a question of law[.]” Forbush v. Sagecrest Multi Fam. Prop. Owners’ Ass‘n, Inc., 162 Idaho 317, 322, 396 P.3d 1199, 1204 (2017) (internal citation omitted). “However, whether a duty existed becomes a question of fact if it requires resolution of disputed facts.” Id. (citing Coghlan v. Beta Theta Pi Fraternity, 133 Idaho 388, 401–02, 987 P.2d 300, 313–14 (1999)).
The City argues it had no common law duty to mark the service lateral owned by Yellowstone when “[i]t is undisputed the City of Rigby has absolutely no information regarding the location of Yellowstone‘s sewer lateral.” Yellowstone counters that, as the provider of local sewer services, the City knew or should have known the location of service laterals within public rights-of-way. The service lateral is, after all, connected to the City‘s sewer system and apparently within the public right-of-way. Yellowstone argues that the City‘s admission that it did nothing to mark service laterals is not reasonable under the circumstances. Yellowstone alleges that, by failing to take any action that would notify BorTek of the service laterals, the City breached its duty to protect its customers’ property and provide continuous service to its customers.
Idaho Jury Instruction 2.20 defines “negligence” as:
[T]he failure to use ordinary care in the management of one‘s property or person. The words “ordinary care” mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence. Negligence may thus consist of the failure to do something which a reasonably careful person would do, or the doing of something a reasonably careful person would not do, under circumstances similar to those shown by the evidence.
IDJI 2.20.
Yellowstone may have owned the service lateral on its property; however, the location where that service lateral connects to the City‘s sewer system is in a public-right-of-way owned by the City. The City knew or should have known where Yellowstone‘s service lateral joined with the City‘s sewer system when the service lateral was added to the City‘s sewer system. The City had the common law duty to exercise ordinary care in the management of the public right-of-way and its sewer system. Whether the City breached this duty by failing to maintain records of the location of service laterals, failing to adequately mark service laterals, or failing to take other precautions
3. Discretionary function immunity
The district court additionally cоncluded the City‘s inability to locate the service lateral qualified as a discretionary function, which would entitle the City to statutory immunity.
[S]hall not be liable for any claim which:
- Arises out of any act or omission of an employee of the governmental entity exercising ordinary care, in reliance upon or the execution or performance of a statutory or regulatory function, whether or not the statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretiоn be abused.
We have interpreted this section of the Idaho Tort Claims Act as follows:
In Jones v. City of St. Maries, Justice Huntley noted that the first clause of
I.C. § 6-904(1) affords governmental employees immunity if they act with ordinary care and in accordance with policy decisions. 111 Idaho 733, 745, 727 P.2d 1161, 1173 (1986) (Huntley, J., concurring). However, if a governmental employee fails to exercise ordinary care while carrying out the government‘s policy, then this exception would not afford immunity.
Rees v. State, Dep‘t of Health & Welfare, 143 Idaho 10, 20, 137 P.3d 397, 407 (2006). As described above, there remain questions of fact as to whether the City breached a duty owed to Yellowstone. Without a determination on whether the City breached a duty owed to Yellowstone, we cannot determine whether the City is entitled to discretionary function immunity. Accordingly, we reverse the district court‘s decision granting summary judgment to the City on the issue of discretionary function immunity.
C. The City‘s cross-appeal concerning the district court‘s refusal to grant attorney fees is moot.
The City cross-appealed the district court‘s decision denying it attorney fees below. However, because we have concluded that the district court erred in granting summary judgment to the City and reversed that decision, the City‘s cross-appeal has been rendered moot.
D. Neither party is entitled to attorney fees on appeal.
Both parties request attorney fees and costs on appeal pursuant to
We reverse the district court‘s grant of summary judgment to the City because there remain genuine issues of material fact to be resolved by the factfinders. We decline to address the City‘s cross-appeal regarding the district court‘s refusal to award attorney fees to it because that decision has been rendered moot by оur decision. We also deny attorney fees to either party on appeal because doing so would be premature. Yellowstone is awarded its costs on appeal as a matter of right as the prevailing party.
Chief Justice BEVAN and Justices BRODY, MOELLER, and ZAHN CONCUR.