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Carnell v. Barker Management6/3/2002
but did not see anyone. Stacie limited her search of the home for the other children to the main floor. Cindy, Jory, Seeley, Alissa, Stacie, and then-newborn Morgan, all fled the home.
The Buhl Fire Department responded quickly. After extinguishing the fire, firemen found Cambria and Brittiny behind a wet bar in the basement. Both girls died as a result of the fire. Cambria was two years old, and Brittiny was two days shy of two years old. Jory suffered burns, and some of the adults were treated for smoke inhalation. Although the cause of the fire was in dispute, no one disputed that the fire began in the basement. Jerry lived in the basement; Brittiny and another child usually slept in the basement; the basement doubled as the children's playroom. Jerry and Cindy smoked. Jerry admitted to smoking in the basement, and kept his lighter and cigarettes in a small box in the basement. When she visited, Cindy kept her cigarettes and lighter on a shelf in the basement.
The Buhl Fire Department requested that Donald D. Dillard, Chief Deputy State Fire Marshal, inspect the home to determine the cause and origin of the fire. He found a burned non-childproof lighter under the hide-a-bed suggesting it may have been used to start the fire. Alissa was questioned about the fire by her family only. She allegedly said that she did not know how the fire started.
On June 30, 1997, Jerry and Cindy filed a complaint for the wrongful death of Brittiny and the personal injuries suffered by Jory. Their complaint was based upon the theory that the cause of the fire was electrical. Their complaint named Seeley, Barker, Barker Realty, the Smiths, Phillips Electric, and the IDHW as defendants. Stacie and Morgan filed a complaint for the wrongful death of Cambria. It was originally filed on May 21, 1997, but was not served. It was amended and filed again on October 15, 1997. Seeley, Barker, Barker Realty, the Smiths, and Phillips Electric were named as defendants. The plaintiffs alleged that the negligent actions of the defendants resulted in the deaths of two children and personal injuries to one child and sought damages for wrongful death and personal injuries. Specifically, they alleged that Seeley negligently failed to make her home safe, that the Smiths, Barker, and Barker Realty negligently failed to disclose the electrical defects in the home and falsely represented that the wiring in the home was updated, and that Phillips Electric negligently repaired the electrical wiring in the Seeley home. Jerry and Cindy's complaint also alleged that the IDHW negligently placed Brittiny in an unsafe home.
The two complaints were consolidated on January 5, 1998. The parties spent the latter part of 1997 and all of 1998 answering the complaints and beginning discovery. The IDHW filed a motion for summary judgment, which the district court granted in part and denied in part in an order dated December 31, 1998. Its motion to reconsider or clarify the decision was denied by the court on April 28, 1999. On February 24, 1999, a scheduling order was entered, requiring the plaintiffs to disclose all expert witnesses 180 days prior to trial, set for June 5, 2000. All of the defendants filed motions for summary judgment in the spring of 1999. Plaintiffs requested and were granted an extension of time to respond to the motions.
In support of its motion for summary judgment, Phillips Electric submitted the affidavits of Dillard and Shane Hartgrove (Hartgrove), a fire inspector and a member of the Boise Police Department. Both men investigated the cause and origin of the fire at the Seeley home--Dillard at the request of the Buhl Fire Department and Hartgrove at the request of Phillips Electric. They
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