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O'Guin v. Bingham County6/18/2003
entrants. See Huyck v. Hecla Mining Co., 101 Idaho 299, 612 P.2d 142 (1980). The duty owed by a landowner to a trespasser is to "refrain from wanton or willful acts that occasion injury." Bicandi, supra.
Whether an injury is the result of "willful and wanton" conduct is a question of fact for the jury to determine from all the evidence. Trennert v. Coe, 124 N.E. 2d 79 (Ill.App. 1955). In Ellis v. Ashton & St. Anthony Power Co., 41 Idaho 106, 238 P.2d 517(1925), the Court upheld an instruction defining liability for "wanton negligence," which merely stated that if the defendants maintained a dangerous agency and knew that children or others were accustomed to frequent or go on the ground, then if the dangerous appliance were unprotected and if by reason of the defendants' negligence injury resulted, the defendants would be liable. Id. at 120, 238 P.2d at 522. See Jacobson v. City of Rathdrum, 115 Idaho 266, 766 P.2d 736 (1988) (evidence showed wanton negligence as to the City's maintenance of a dangerous condition). As defined in IDJI 225 (1985):
Willful and wanton misconduct is present if the defendant intentionally does or fails to do an act, knowing or having a reason to know facts which would lead a reasonable man to realize that his conduct not only creates unreasonable risk of harm to another, but involves a high degree of probability that such harm would result.
The complaint in this case does not allege any willful or wanton conduct by the County and no breach of the duty owed to a trespasser. Thus, the County's argument to affirm the summary judgment because the claims in the complaint are based entirely on allegations of negligence and attractive nuisance is well placed.
It has been the rule in Idaho that "issues considered on summary judgment are those raised by the pleadings." The facts of this case show that the issue of defamation has in no way been raised by the pleadings; there is nothing within the pleadings which can fairly be viewed as adequately giving notice of the claim. We accordingly decline to rule on this claim at this late date. (Citations omitted.)
Gardner v. Evans, 110 Idaho 925, 939, 719 P.2d 1185, 1199 (1986), cert. denied 479 U.S. 1007 (1986). A cause of action not raised in a party's pleadings may not be considered on summary judgment nor may it be considered for the first time on appeal. Beco Const. Co. v. City of Idaho Falls, 124 Idaho 859, 865, 865 P.2d 950, 956 (1993). See also Peterson v. Romine, 131 Idaho 537, 541, 960 P.2d 1266, 1270 (1998) (Landowner's motion for summary judgment granted on the grounds that plaintiff was a trespasser and that she had not alleged that the Landowners committed any wanton or willful acts which caused her injuries). See also Corey v. State, 108 Idaho 921, 703 P.2d 685 (1985) (Where the only allegation of fault contained in appellants' complaint was that, "The State of Idaho installed and maintained said cable negligently and failed to warn of its presence," the issue of whether the statute would absolve a landowner from liability for intentional or willful conduct was not properly before the Court on review of the summary judgment in favor of the State.). See also Pullin v. City of Kimberly, 100 Idaho 34, 592 P.2d 849 (1979) (held that the district court correctly granted summary judgment and did not consider other theories upon which the Pullins could have based their claim of ownership, when the allegations in the complaint only made a general allegation of ownership). Cf. Jacobsen v. City of Rathdrum, 115 Idaho 266, 270, 766 P.2d 736, 740 (1988) (Here, willful and wanton maintenance by the city of a dangerous condition in the park has been alleged.).
The plaintiffs
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