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IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 38050 ALESHA KETTERLING, ) ) Plaintiff-Appellant, ) ) v. ) ) BURGER KING CORPORATION, dba ) ) BURGER KING, HB BOYS, a Utah based company, ) ) ) Defendants-Respondents. _______________________________________ )

Boise, January 2012 Term 2012 Opinion No. 40 Filed: March 2, 2012 Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fifth Judicial District of the State of Idaho, Minidoka County. Honorable Michael R. Crabtree and Honorable Jonathan P. Brody, District Judges. The judgment of the district court is affirmed. Kent D. Jensen Law Office, P.C., Burley, for appellant. Kent D. Jensen argued. Benoit, Alexander, Harwood & High, LLP, Twin Falls, for respondents. Thomas B. High argued. _____________________ J. JONES, Justice. This is an appeal from the district court's grant of summary judgment in favor of Burger King, a Florida corporation, and HB Boys L.C., a Utah limited liability company, in Alesha Ketterling's negligence action. The district court determined that Ketterling had failed to timely serve HB Boys and that Burger King, a franchisor, had no liability for Ketterling's injuries. We affirm. I. BACKGROUND Ketterling alleged that she slipped on snow in the parking lot of the Burger King restaurant in Burley, Idaho, on December 22, 2006. BDSB of Western Idaho, L.C., an Idaho limited liability company, has the contractual right to operate the restaurant under a franchise agreement with 1

Burger King. HB Boys manages the Burley Burger King under a contract with BDSB. According to Ketterling, her fall aggravated an existing knee injury. Ketterling alleged that Burger King's failure to make the premises safe was negligent and entitled her to damages for her injuries. Ketterling originally filed this action on November 5, 2008, naming Burger King as the only defendant. She served Burger King with a summons and copy of her complaint on January 30, 2009. Burger King forwarded the summons and complaint to HB Boys. Then, on May 21, 2009, Ketterling amended her complaint to include HB Boys as a defendant. HB Boys moved for summary judgment, contending that Ketterling had failed to timely join it as a defendant. The district court agreed and granted the motion. The court subsequently granted summary judgment to Burger King, holding that, as franchisor, it did not control the premises where Ketterling fell and had no vicarious liability for Ketterling's injuries. Ketterling timely appealed. We must consider whether either defendant was entitled to summary judgment. We also review the district court's decision denying Ketterling access to Burger King's franchise agreement for the Burley Burger King restaurant. II. ANALYSIS A. Standard of Review. When reviewing a district court's grant of summary judgment, "this Court applies the same standard used by the district court." Miller v. Idaho State Patrol, 150 Idaho 856, 863, 252 P.3d 1274, 1281 (2011). The district court should grant summary judgment "forthwith 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). "The party opposing a motion for summary judgment `must respond to the summary judgment motion with specific facts showing there is a genuine issue for trial.'" Brown v. City of Pocatello, 148 Idaho 802, 806, 229 P.3d 1164, 1168 (2010). If there are no factual issues, only questions of law remain; and this Court exercises free review over questions of law. Miller, 150 Idaho at 863, 252 P.3d at 1281. B. HB Boys was entitled to summary judgment. The district court granted HB Boys' summary judgment motion because Ketterling amended her complaint to join HB Boys beyond the two year limitations period. The court observed that Ketterling served the summons and complaint on Burger King on January 30, 2011, 2

more than two years after her alleged fall, and that Burger King subsequently notified HB Boys of the pending litigation. Then, Ketterling amended her complaint to include a claim against HB Boys. The court further noted I.C.

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Idaho Law