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Venters v. Sorrento Delaware2/23/2005
nd I.C. § 12-121. They argue that although the Venters' appeal of the district court's decision applying I.C. § 72-223 cannot be characterized as frivolous or without foundation, the same cannot be said for their appeal of the district court's holding that Montierth owed no duty of care to Stanley Venters and that the Venters presented no evidence of a breach of any duty that was owed. The Court finds that the Venters appeal, while unsuccessful, was not frivolous or unreasonable and there is no basis for an award of fees in this matter.
IV. CONCLUSION
While the district court erred in finding that Montierth, as a mere landowner, was Stanley Venters' statutory employer, the court's grant of summary judgment is affirmed on the alternate basis that the Venters failed to create a material issue of fact for trial that Montierth breached any applicable duty of care, or how that breach proximately caused injury . Summary judgment was also proper as to Sorrento, as Sorrento qualifies as Stanley Venters' statutory employer under I.C. § 72-223 and is, therefore, immune from third-party tort liability under the Act. Therefore, both summary judgment decisions are affirmed. We award costs on appeal to respondents.
Justices EISMANN and BURDICK CONCUR.
Chief Justice SCHROEDER and Justice KIDWELL, Pro Tem, CONCUR EXCEPT FOR SECTION III A (1), IN WHICH THEY CONCUR IN THE RESULT.
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