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IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 33489
CAROLYN BOOTS and WILLIAM                                                                         )
BOOTS, husband and wife, and LANDON                                                               )   2008 Opinion No. 13
BOOTS, a minor child by and through his                                                           )
parents CAROLYN and WILLIAM BOOTS,                                                                )   Filed: February 22, 2008
and JASON BOOTS, a minor child by and                                                             )
through his parents CAROLYN and                                                                   )   Stephen W. Kenyon, Clerk
WILLIAM BOOTS,                                                                                    )
)
Plaintiffs-Appellants,                                                                            )
)
v.                                                                                                )
)
JACK and KAREN WINTERS, husband and                                                               )
wife,                                                                                             )
)
Defendants-Respondents.                                                                           )
)
Appeal from the District Court of the Third Judicial District, State of Idaho,
Canyon County.  Hon. Gregory M. Culet, District Judge.
Order granting motion for summary judgment, affirmed.
Crandall Law Office, Boise, for appellant.  Douglas W. Crandall argued.
Hall, Farley, Oberrecht & Blanton, Boise, for respondent.  Portia Jenkins argued.
PERRY, Judge
Carolyn Boots, William Boots, Landon Boots, and Jason Boots (the Bootses) appeal from
the district court’s order granting summary judgment to Jack Winters and Karen Winters (the
Winterses).  For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
The Winterses rented a residence with a fenced backyard to Mario Martinez in October
2002.   Martinez moved into the residence with his family, a white dog, and a brown dog.   Near
the residence rented to Martinez, Carolyn and William Boots lived with their sons Jason and
Landon, who were nine and eleven years old respectively.    While Jason and Landon were
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walking to their school bus stop in the alley abutting the fenced backyard of the residence rented
to Martinez on the morning of November 4, 2002, they noticed Martinez’s white dog was in the
alley outside of the fence.   Landon and Jason returned the white dog to the backyard but, soon
after they did so, the brown dog attacked Landon.   Jason ran down the alley to the Bootses’
residence and notified his mother, Carolyn, that Martinez’s brown dog was attacking Landon.
Carolyn, who had been in the shower, went to the scene wearing only a bath towel.   Carolyn
entered the backyard and separated the brown dog from Landon, but the brown dog then attacked
Carolyn.  The police arrived and stopped the attack on Carolyn by shooting and killing the brown
dog.  Landon and Carolyn both suffered injuries as a result of the brown dog’s attacks.
The Bootses filed a complaint setting forth fourteen tort claims, including claims of
common-law negligence and negligence per se against the Winterses.1   The Winterses filed an
answer to the complaint and a motion for summary judgment.   In support of the motion, the
Winterses filed affidavits, documents regarding the rental agreement, photographs of the brown
dog after it had been shot inside of the backyard, police reports that included the Bootses’
description of the events of that morning, and excerpts of a transcript from a deposition of
Martinez.   The police reports submitted by the Winterses showed that the boys told the police
that Jason had been kicking the fence and swinging his jacket over it at the brown dog just prior
to the attack, that the brown dog grabbed and pulled Jason’s jacket into the backyard, and that
Landon climbed over the fence to retrieve the jacket but was attacked before he could climb the
fence again.   The Bootses did not file a response or any evidence in opposition to the Winterses’
motion for summary judgment.  At a hearing, the Bootses argued in opposition to the motion and
disputed the facts presented by the Winterses’ evidence but conceded that the district court must
consider only the evidence submitted by the Winterses’ in ruling on the motion.   After allowing
the Winterses to file a reply brief to the Bootses’ oral argument, the district court granted
summary judgment for the Winterses on all claims against them.   With regard to the common-
law negligence claim, the district court ruled that the Winterses satisfied their legal duty to third
parties because that duty relates to the physical premises only and not the activities that take
1                                                                                                       The Bootses also named as defendants Martinez and his wife.   Martinez and his wife did
not file an answer to the complaint.   The Bootses, however, did not move for a default judgment
against Martinez and his wife, and they are not parties to this appeal.
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place  on  the  premises.    The  Bootses  appeal,  challenging  dismissal  of  their  common-law
negligence claim.2
II.
STANDARD OF REVIEW
We first note that summary judgment under I.R.C.P. 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:
2                                                                                                        Counsel for the Bootses on appeal is not counsel that represented the Bootses in the
district court.
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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 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 (1986) (citations omitted).   The language and
reasoning of Celotex has been adopted in Idaho.  Dunnick, 126 Idaho at 312, 882 P.2d at 479.
III.
ANALYSIS
A cause of action for common-law negligence in Idaho has four elements:                                (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.   Nation v. State, Dept. of Corr., 144 Idaho 177, 189, 158
P.3d 953, 965 (2007).   The district court ruled that the Bootses had not raised a genuine issue of
material fact as to whether the Winterses had a duty to protect the Bootses from the brown dog.
The Bootses assert that the district court erred because the Winterses had a duty to maintain the
rented premises in a safe condition, had a general duty to protect third parties from their tenant’s
dog, and assumed a duty to protect third parties from Martinez’s brown dog.   The existence of a
duty is a question of law over which this Court exercises free review.    Turpen v. Granieri, 133
Idaho 244, 247, 985 P.2d 669, 672 (1999).
A.                                                                                                     Premises Liability
The Bootses assert that the Winterses had a duty, as landlords, to prohibit the presence of
Martinez’s brown dog on the property because the dog became a physical condition of the
property which rendered the rented premises unsafe to third parties.
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.    Heath, 134 Idaho at 713, 8 P.3d at 1256.   The
distinction between trespassers, licensees, and invitees is the controlling test in determining the
scope and extent of the duty of care owed by landowners to entrants.   O’Guin v. Bingham
County, 139 Idaho 9, 14, 72 P.3d 849, 854 (2003).   See also Holzheimer v. Johannesen, 125
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Idaho 397, 399, 871 P.2d 814, 816 (1994).   A landowner owes an invitee the duty to keep the
premises in a reasonably safe condition or to warn of hidden or concealed dangers.   Id. at 400,
871 P.2d at 817.   A landowner is only required to share with a licensee knowledge of dangerous
conditions or activities on the land.   Id.   The duty owed by a landowner to a trespasser is to
refrain from wanton or willful acts that occasion injury.   O’Guin, 139 Idaho at 14, 72 P.3d at
854.
Relying on Turpen, however, the Winterses assert that a landlord does not have a
responsibility under a theory of premises liability to protect third parties from activities taking
place on the rented property which in no way implicate the physical condition of the property.  In
Turpen, the family of a decedent sued a landlord, contending that the landlord was negligent with
respect to known partying activities of his renters and their guests.    Referring to premises
liability, our Supreme Court held that the landlord could not be found liable, stating:
While we have previously recognized that a landlord may have responsibilities for
assuring that the rented premises are safe, we have imposed that duty only as to
the physical premises.  Here, we are asked to impose a responsibility for activities
taking place on the rented property which in no way implicate the physical
condition of the house or surrounding property.
Turpen, 133 Idaho at 248, 985 P.2d at 673.
We agree with the Winterses that the presence of Martinez’s brown dog did not implicate
the physical condition of the premises rented to Martinez by the Winterses.   Rather, keeping the
brown dog on the premises constituted an activity taking place on the rented property.   Thus,
regardless of whether Landon and Carolyn Boots were invitees, licensees or trespassers on the
property, the Winterses owed them no duty under the theory of premises liability to protect them
from injury caused by Martinez’s dog.
B.                                                                                                    General Duty to Exercise Ordinary Care
The Bootses assert that the Winterses had a general duty to prevent dangerous animals
from being kept on the rented property.   The Winterses assert that they did not have a general
duty to prevent the injuries inflicted by the brown dog because the Winterses did not own the
dog and did not possess actual knowledge that the dog had dangerous propensities.
Our Supreme Court has suggested that premises liability is not the exclusive source of
duties where a landowner is involved.   Instead, circumstances may give rise to a general duty of
care owed to third parties.   See Turpen, 133 Idaho at 247-48, 985 P.2d at 672-73.   As a general
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principle, every person, in the conduct of his or her business, has a duty to exercise ordinary care
to prevent unreasonable, foreseeable risks of harm to others.   Id. at 247, 985 P.2d at 672; Sharp
v. W.H. Moore Inc., 118 Idaho 297, 300, 796 P.2d 506, 509 (1990).   However, our Supreme
Court has also made clear that not every person or entity owes a tort duty to everyone else in all
circumstances.  Turpen, 133 Idaho at 247-48, 985 P.2d at 672-73.
In determining whether a duty will arise in a particular context, our Supreme Court has
identified several factors to consider.   Turpen, 133 Idaho at 247, 985 P.2d at 672.   The factors
include the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff
suffered injury, the closeness of the connection between the defendant’s conduct and the injury
suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future
harm, the extent of the burden to the defendant and consequences to the community of imposing
a  duty  to  exercise  care  with  resulting  liability  for  breach,  and  the  availability,  cost,  and
prevalence of insurance for the risk involved.   Id.; Rife v. Long, 127 Idaho 841, 846, 908 P.2d
143, 148 (1995).   Where the degree or result of harm is great, but preventing it is not difficult, a
relatively low degree of foreseeability is required.   Turpen, 133 Idaho at 248, 985 P.2d at 673;
Sharp, 118 Idaho at 300-01, 796 P.2d at 509-10.   Conversely, where the threatened injury is
minor but the burden of preventing such injury is high, a higher degree of foreseeability may be
required.   Turpen, 133 Idaho at 248, 985 P.2d at 673; Sharp, 118 Idaho at 301, 796 P.2d at 510.
We engage in a balancing of the harm only in those rare situations when we are called upon to
extend a duty beyond the scope previously imposed or when a duty has not previously been
recognized.  Turpen, 133 Idaho at 248, 985 P.2d at 673.
We again find Turpen instructive.   As noted above, the family of a decedent in that case,
contended that the decedent’s landlord was negligent with respect to known partying activities of
his renters and their guests.   The decedent was a college student who died of alcohol poisoning
while a social guest at a home the landlord had leased to two other college students.   The
landlord had been told of some parties held at the house by past tenants who had been students at
the college.   The landlord, however, had received no complaints about the existing lessees or
their guests.   The Supreme Court concluded that, although the harm to the social guest was
undoubtedly great, the landlord’s only ability to prevent the harm was by refusing to rent the
premises at all.    Id. at 248, 985 P.2d at 673.  The Court held that there was no basis for imposing
a duty on the landlord to thoroughly screen tenants or refuse to rent the premises to college
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students.   Id.   The Court further held that the landlord therefore had no duty under the very
limited facts presented.  Id.
In the present case, we are aware of no Idaho authority imposing a duty on a landlord to
protect third persons from a tenant’s dog and, therefore, we must determine whether a duty
should be recognized on the facts presented.   Based on Jack Winters’ affidavit and Martinez’s
deposition testimony, Martinez never informed the Winterses of any dangerous propensities of
the brown dog.   Martinez asserted during the deposition that the fence between the backyard and
the alley was in good repair at the time of the attack.   Additionally, the police officer’s affidavit
indicates that Jason Boots provoked the brown dog by kicking the fence and swinging his jacket
at the dog.   The dog attacked Landon Boots only after he climbed over the fence to retrieve
Jason’s jacket, which the dog had pulled into the backyard.  Carolyn Boots also climbed over the
fence prior to being attacked in the backyard.    The harm suffered by Landon and Carolyn
appears to have been great.   The degree of foreseeability, however, was very low because the
Winterses had no knowledge of any dangerous propensities of the brown dog, the initial attack
on Landon appears to have been provoked, and both attacks occurred only after the victims
climbed the fence which confined the dog to the rented property.    Furthermore, requiring
landlords to investigate whether a lessee’s pet is dangerous prior to allowing the lessee to keep
the pet on the rented premises would impose a heavy burden on landlords and impede the ability
of tenants to own pets.3   We decline the Bootses’ invitation to adopt such a requirement as the
public policy of the State of Idaho.   On the facts presented at summary judgment, we hold that
the Winterses did not owe a general duty to protect the Bootses from Martinez’s brown dog.
At oral argument, the Bootses also asserted for the first time on appeal that the Winterses
had a statutory duty pursuant to I.C. § 25-2805(2).   A landowner may be liable under a theory of
negligence per se where the landowner violates a statutory duty.   O’Guin v. Bingham County,
142 Idaho 49, 54, 122 P.3d 308, 313 (2005).   The Bootses stated a claim of negligence per se in
3                                                                                                        Indeed, the record does not include evidence that the Winterses would have been able to
determine prior to the attacks that the brown dog was dangerous.  The Bootses assert that the dog
was a pit bull and was therefore dangerous.   The record contains an unclear photocopy of the
photograph of the brown dog after it had been shot in the backyard.  Based on this photograph, it
is not possible to determine that the dog was a pit bull.   Additionally, Martinez asserted during
his deposition that the dog had never previously exhibited dangerous propensities.
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their complaint and presented argument supporting this theory at the summary judgment hearing
in the district court.   The Bootses did not, however, assert this negligence per se argument in
their appellate briefs.   A party waives an issue on appeal if either argument or authority is
lacking.  Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997).
Even if the issue were properly presented on appeal, however, it provides no basis for the
Bootses’ claim.  The district court ruled that the Bootses did not raise a genuine issue of material
fact as to their negligence per se claim because the evidence indicated that the brown dog was
provoked prior to the attack.  The statute the Bootses relied upon states:
Any  dog  which,  when  not  physically  provoked,  physically  attacks,
wounds, bites or otherwise injures any person who is not trespassing, is vicious. It
shall be unlawful for the owner or for the owner of premises on which a vicious
dog is present to harbor a vicious dog outside a secure enclosure. A secure
enclosure is one from which the animal cannot escape and for which exit and
entry is controlled by the owner of the premises or owner of the animal. Any
vicious dog removed from the secure enclosure must be restrained by a chain
sufficient  to  control  the  vicious  dog.  Persons  guilty  of  a  violation  of  this
subsection, and in addition to any liability as provided in section 25-2806, Idaho
Code, shall be guilty of a misdemeanor. For a second or subsequent violation of
this subsection, the court may, in the interest of public safety, order the owner to
have the vicious dog destroyed or may direct the appropriate authorities to destroy
the dog.
I.C. § 25-2805(2) (emphasis added).   The statute does not create a duty on a landowner for an
attack by a vicious dog harbored on his or her property when the victim provoked the dog or
trespassed on the property.   The only evidence in the record at summary judgment indicated that
Jason provoked the brown dog’s attack by kicking the fence and swinging his jacket at the dog.
Additionally, both Landon and Carolyn Boots climbed over the fence prior to being attacked in
the backyard.   Based on the only evidence in the record, it is clear that the brown dog was
provoked and that both victims were trespassing when attacked.   Thus, the Winterses owed no
duty to the Bootses under I.C. § 25-2805(2).
C.                                                                                                     Assumption of Duty by Landlord
The Bootses next assert that the Winterses assumed a duty to protect third parties from
Martinez’s dog because the Winterses regulated the type and size of the dogs they allowed on the
rental property.   The Winterses assert that they did not regulate the type or size of dog that
Martinez could keep on the property and thus did not assume a duty to protect the Bootses from
Martinez’s dog.
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The Idaho Supreme Court has recognized that it is possible to create a duty where one
previously did not exist.   If one voluntarily undertakes to perform an act, having no prior duty to
do so, the duty arises to perform the act in a non-negligent manner.   Udy v. Custer County, 136
Idaho 386, 389, 34 P.3d 1069, 1072 (2001); Coghlan v. Beta Theta Pi Fraternity, 133 Idaho 388,
400, 987 P.2d 300, 312 (1999).   See also Sharp, 118 Idaho at 300, 796 P.2d at 509.   Liability for
an assumed duty, however, can only come into being to the extent that there is in fact an
undertaking.   Udy, 136 Idaho at 389, 34 P.3d at 1072.   See also Bowling v. Jack B. Parson Cos.,
117 Idaho 1030, 1032, 793 P.2d 703, 705 (1990).  Although a person can assume a duty to act on
a particular occasion, the duty is limited to the discrete episode in which the aid is rendered.
Udy, 136 Idaho at 389, 34 P.3d at 1072.
In the present case, there is no evidence that the Winterses volunteered to help third
parties, such as the Bootses, by regulating the type or size of dog that Martinez could keep on the
rented property.   Jack Winters averred in an affidavit that Martinez paid a deposit of $100 to
keep one large dog on the premises, and a copy of the rental agreement confirms that Martinez
paid a $100 pet deposit.   Martinez testified during his deposition that he informed the Winterses
that he had two medium-sized dogs which he intended to keep on the premises and, when Jack
Winters asked him what type of dogs he had, Martinez informed him the dogs were “mutts.”
There is no evidence, however, that the Winterses restricted the type or size of the dogs Martinez
could keep on the premises.   Additionally, there is no evidence in the record that the Winterses
secured the pet deposit with the intent to protect third parties from Martinez’s dogs.    The
Bootses’ reliance on Sharp is therefore misplaced.   In that case, a landlord provided a security
service for his tenant’s business, and an employee of the business was assaulted and raped by an
intruder who apparently gained access to the building through an unlocked door.   The Supreme
Court held that once the landlord and property manager had initiated a locked door policy and
had employed a security service with the intent of keeping the doors locked, they undertook a
duty to keep doors locked.   Sharp, 118 Idaho at 300, 796 P.2d at 509.   In contrast, there is no
evidence that the Winterses took any actions with the intent of protecting third parties from
Martinez’s brown dog, and the Winterses therefore assumed no duty to provide such protection
for the Bootses.
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D.                                                                                                       Costs and Attorney Fees on Appeal
The Winterses request costs and attorney fees incurred in defending against this appeal.
An award of attorney fees may be granted under I.C. § 12-121 and I.A.R. 41 to the prevailing
party and such an award is appropriate when the court is left with the abiding belief that the
appeal has been brought or defended frivolously, unreasonably, or without foundation.   Rendon
v. Paskett, 126 Idaho 944, 945, 894 P.2d 775, 776 (Ct. App. 1995).   The Winterses assert that
I.C. § 12-121 entitles them to attorney fees because the Bootses brought this appeal after they
failed to provide briefing or affidavits to the trial court in opposition to the Winterses’ motion for
summary judgment.  The Bootses assert that an award of attorney fees is not appropriate because
a landlord’s liability for injuries inflicted by a tenant’s dog is an issue of first impression in
Idaho.   The Bootses also assert that their failure to respond adequately to the Winterses’ motion
for summary judgment in the trial court was due to the failure of the Bootses’ prior counsel.
Some of the Bootses’ arguments on appeal, without support in the evidence, could be considered
frivolous, unreasonable, or without foundation.   We decline to award attorney fees because this
case presented an issue of first impression in Idaho.   Costs incurred in defending against this
appeal, however, are awarded as a matter of course to the Winterses because they are prevailing
parties.  See I.A.R. 40(a).
IV.
CONCLUSION
The  Winterses  owed  the  Bootses  no  duty  to  protect  them  from  injury  caused  by
Martinez’s brown dog under a theory of premises liability, under a general duty to protect the
Bootses from Martinez’s brown dog, or under I.C. § 25-2805(2).   Additionally, because there is
no evidence that the Winterses took any actions with the intent of protecting third parties from
Martinez’s brown dog, the Winterses assumed no duty to provide such protection for the
Bootses.   Therefore, the district court’s order granting summary judgment is affirmed.   The
Winterses are awarded costs, but not attorney fees, incurred in defending this appeal.
Chief Judge GUTIERREZ and Judge LANSING, CONCUR.
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