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O'Guin v. Bingham County6/18/2003
was "partly or wholly dependent on the decedent for support or services." I.C. ' 5-311(2)(b). "`Support' includes contributions in kind as well as money." I.C. ' 5-311 (2)(b)(1). Dependency is a prerequisite to suit, and loss of support has been viewed as a measure of damages. See Pfau v. Comair Holdings, Inc., 135 Idaho 152, 155-56, 15 P.3d 1160, 1163-64 (2000). The "support" envisioned by the statute includes contributions in kind as well as money. I.C. ' 5-311(2)(b)(1). However, that support, which is clearly in the nature of financial benefit, does not extend to the emotional and social support that Frank, Jr., claimed as damages for the loss of his brothers. We hold that Frank, Jr., does not have standing to recover and we uphold the district court's dismissal of his claim, although not on the ground of mootness.
CONCLUSION
We affirm the summary judgment on the attractive nuisance claim and the common law negligence claims asserted by the plaintiffs. As to whether summary judgment on the statutory and regulatory claims is appropriate, we remand to the district court to enter its determination. In light of the remand, we do not award fees to the County in this appeal. No costs allowed.
Chief Justice TROUT, and Justices SCHROEDER and EISMANN, CONCUR.
Justice KIDWELL, DISSENTING IN PART.
The majority affirms summary judgment on the plaintiffs' claim based on an attractive nuisance theory. I would find genuine issues of material fact exist regarding each element of the attractive nuisance claim. Therefore, I respectfully dissent.
In Nelson ex rel Nelson v. City of Rupert, this Court stated the elements necessary to sustain an attractive nuisance claim:
Plaintiff has the burden of proving: (1) A structure/condition existed on the defendant's premises which the defendant knew or should have known in the exercise of ordinary care, involved a reasonably foreseeable risk of attraction and harm to children; (2) The structure/condition maintained/permitted on the property was peculiarly or unusually attractive to children; (3) The structure/condition was such that the danger was not apparent to immature minds; and (4) The [child] was attracted onto the premises by such structure/condition.
128 Idaho 199, 202, 911 P.2d 1111, 1114 (1996) (citing Bass v. Quinn-Robbins Co., 70 Idaho 308, 312, 216 P.2d 944, 945 (1950)).
The majority states that "the plaintiffs had not established that the boys were attracted onto the landfill property by the open pit or piles of debris... We agree with the district court's conclusion that the dangerous condition that caused harm to the boys was discovered only after they had entered the property." Thus, the majority finds that the plaintiffs lacked evidence on the fourth element of attractive nuisance -- the child must have been "attracted onto the premises by such structure/condition."
This Court has long debated what attraction or enticement is necessary to sustain a cause of action for attractive nuisance. See, e.g., Bicandi v. Boise Payette Lumber Co., 55 Idaho 543, 555, 44 P.2d 1102, 1108 (1935) (Holden, J., concurring specially); see also Jacobson v. City of Rathdrum, 115 Idaho 266, 276, 766 P.2d 736 (1988) (Bistline, J., concurring and dissenting). While a child must be "attracted onto the premises by such structure/condition," I believe the majority reads this element of attractive nuisance too narrowly. A better interpretation of the requirement that the child be "attracted onto the premises" is found in the Restatement of Torts and Restatement (Second) of Torts. See, e.g., MacNeil v. Perkins, 324 P.2d 211, 216 (Ariz.1958). In MacNeil, the court, rely
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