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O'Guin v. Bingham County6/18/2003
argue that the wanton and willful standard was litigated at the summary judgment hearing, and they contend that the County has not asserted that it has been prejudiced by the allegedly defective pleading. The plaintiffs cite to the rule that where issues not raised by the pleadings are either expressly or impliedly tried, the district court has discretion to decide those issues and to permit the pleading party to amend its pleadings to conform to the proof offered at trial. See I.R.C.P. 15(b). However, I.R.C.P. 15(b) has been held to apply only to unpled theories that are litigated at a trial on the merits, and not to factual issues raised in a motion for summary judgment. Estes v. Barry, 132 Idaho 82, 967 P.2d 284 (1998).
" defect in pleading may be corrected so that denial of summary judgment sought by the movant will result, but on the opposing party's failure to make the necessary correction, the movant is entitled to judgment in his favor." 5 Am. Jur. TRIALS ' 5 p.105 (1966). The O'Guins had ample opportunity to raise a claim premised on willful or wanton conduct, but failed to do so. Summary judgment in favor of the County on this claim was not in error.
4. The plaintiffs' statutory claims were improperly dismissed on summary judgment.
Following the hearing on the motion for summary judgment, the district court in its initial decision ruled on the O'Guins' negligence per se claims relative to the defendant's alleged breach of statutory and regulatory duties concerning the landfill. The district court first determined that the claims were adequately pled in the plaintiffs' complaint, then proceeded to analyze whether the defendants' alleged breach of I.C. ' 39-7401 and IDAPA 58.01.06.005 and 58.01.06.006 of the Solid Waste Management Rules and Standards satisfied the criteria for negligence per se. Specifically, the district court considered if the four elements of the plaintiffs' negligence per se claim were sufficiently established to show the existence of a genuine issue of material fact to avoid summary judgment:
(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 .
Concluding that there remained genuine factual issues on the questions of breach and damages, the district court denied summary judgment. On reconsideration, however, the district court failed altogether to address the negligence per se claims. Accordingly, we remand the matter to the district court to decide whether the defendants are entitled to summary judgment on these claims.
5. Frank Jr.'s claims were properly dismissed on summary judgment for lack of standing.
The wrongful death claim asserted by Frank, Jr., was based entirely on allegations of the County's negligence in maintaining an attractive nuisance (the landfill). Frank, Jr., sought to recover for the loss of consortium of his two brothers and for mental and physical anguish caused by his brothers' untimely and horrible death.
When the death of a person is caused by the wrongful act or neglect of another, his or her heirs may maintain an action for damages against the person causing the death. I.C. ' 5-311(1). The question of Frank, Jr.'s standing to bring a wrongful death claim turns on whether he qualifies as an "heir" under the statutes.
As a brother to the decedents, Frank, Jr., falls within the definition of an "heir," provided he
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