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Bromley v. Garey3/29/1999
Idaho Falls, October 1998 Term
1999 Opinion No. 31
Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Honorable Richard T. St. Clair, District Judge.
Summary judgment for defendant in personal injury action, reversed.
This is an appeal from a summary judgment granted in favor of Ronald Garey dismissing an ac tion brought by Tory Bromley, who was injured in a hunting accident involving a shotgun owned by Garey. We reverse the order granting summary judgment and remand the case for further proceedings.
BACKGROUND AND PROCEDURAL HISTORY
In September 1995, Bromley and Dave Sholder went hunting with two shotguns that Sholder had borrowed from his uncle and Ronald Garey. Both Bromley and Sholder used Garey's shotgun, and both observed that it frequently misfired and sometimes even fired late, yet they continued to use it. On the way home, they stopped and shot at some doves by the side of the road, but left in a hurry to avoid trouble for firing near houses that were beside the road. Sholder simply wrapped the two loaded shotguns in a blanket and placed them in the bed of the pickup.
After driving a short distance, they decided it might be safer to unload the shotguns. They stopped, and Bromley got out on the driver's side while Sholder got into the back of the pickup. As Sholder picked up the bundle containing the shotguns, Garey's shotgun fell onto the bed of the pickup and discharged, striking Bromley.
Shortly after the accident, an agent from Garey's insurance company took the shotgun to Jon Aikin of Aikin's Sport Shop for an examination. Aikin observed that when the bolt was slammed shut or when the shotgun was hit on its butt or on the sides, it would fire ninety percent of the time. Aikin did not disassemble the shotgun or otherwise attempt to determine the source of the problem, but he suggested several possible reasons for his observations. Aikin returned the shotgun to Garey with a note that the shotgun was inoperable and should not be used.
Eleven months later, Bromley requested that the shotgun be examined by Robert Stofey. Stofey, the Range Master for the Oxnard Police Department, performed an examination similar to Aikin's, but with markedly different results. The gun was clean and in good condition, and he was unable to reproduce the problems observed by Aikin. The gun would fire only when the trigger was pulled; it would not fire when dropped from heights up to approximately twelve inches. According to Stofey, there was no indication of any misfiring or mechanical malfunction.
Bromley sued both Sholder and Garey for his injuries. Garey filed a motion for summary judgment alleging that he owed no duty to Bromley. Garey subsequently filed a second motion for summary judgment alleging intervening cause. In response to Garey's motions for summary judgment, Bromley submitted the depositions of Bromley, Sholder and Aikin in order to show a genuine issue of material fact regarding Garey's duty. Bromley also argued that Stofey could not duplicate Aikin's observations because Garey had repaired the shotgun and destroyed any evidence of a defect. Bromley argued that he was entitled to a spoliation inference, based on the alleged destruction of evidence, that Garey knew about the defect when he loaned the shotgun to Sholder and consequently had a duty not to lend the shotgun. Garey filed a motion to strike the expert testimony of Jon Aikin. On December 23, 1996, the court heard oral argument on both summary judgment motions and Garey's motion to strike.
The district court granted Garey's motion to strike the expert te
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