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Docket Number

No. 30344.

Attorney(S)

Comstock Bush, Boise, for appellants, the negligence per se claim John A. Bush argued. Anderson, Nelson, Hall Smith, Idaho Falls, for respondents. Blake G. Hall argued.

Judges

Daniel T. Eismann

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Smart Summary

Summary of O'Guin v. Bingham County, Supreme Court of Idaho (Oct. 3, 2005)

Factual and Procedural Background

On July 7, 1999, two children (Shaun and Alex O'Guin) were killed when a section of a landfill pit wall collapsed while they were at the Bingham County landfill. Their older brother, Frank Jr., discovered their bodies. Earlier that day the children had been at a school summer lunch program and, while walking home, passed through an unlocked gate at the back of the schoolyard and a privately owned empty field that lay between the school and the landfill; the border between the empty field and the landfill was unobstructed. At the time of the accident the landfill was closed and no attendant was on site. The landfill was open to the public one day a week but was closed on the day of the deaths.

The O'Guins sued alleging (among other claims) that the landfill was an attractive nuisance and that the County breached duties to control access. The County moved for summary judgment. The district court initially dismissed the attractive nuisance claim, denied the motion as to common law negligence, then sua sponte reconsidered and issued a substitute decision granting summary judgment on all claims. On the first appeal this Court affirmed summary judgment as to the attractive nuisance and common law negligence claims but remanded because the substitute decision had not addressed the negligence per se claim. On remand the County renewed its motion for summary judgment as to negligence per se; the district court granted the motion and the O'Guins again appealed to this Court.

Legal Issues Presented

Whether the Idaho statutes and administrative regulations governing municipal solid waste landfills (including IDAPA rules and 40 C.F.R. § 258.25) establish a statutory standard of care that, if violated, constitutes negligence per se.
If negligence per se is established by violation of those statutes/regulations, whether the common-law rule limiting a landowner's duty to trespassers (to refrain only from willful or wanton acts) still applies or is supplanted by the statutory duty.
Whether, as a factual matter, the elements necessary to establish negligence per se (standard defined by statute/regulation, intended to prevent the harm, plaintiff within protected class, and proximate cause) are met or present disputed issues of fact precluding summary judgment.

Arguments of the Parties

Appellants (the O'Guins)

Argued that the landfill regulations established a statutory duty and that, once the district court determined the regulations established a duty and that the County breached that duty, there was no need to apply the common-law willful-or-wanton standard applicable to trespassers.
Relied on the principle that statutes and administrative regulations may define the standard of care and violations may constitute negligence per se, which conclusively establishes duty and breach.

Respondents (Bingham County)

Argued that because the O'Guin children were trespassers, even if negligence per se requirements were met, the O'Guins still must prove the County's conduct was willful or wanton (the higher common-law standard for landowners toward trespassers), which they alleged the O'Guins failed to plead.
Also argued that negligence per se does not apply in this circumstance (i.e., contested that the regulations established the required standard or protected against the particular harm at issue).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in This Opinion
Udy v. Custer County, 136 Idaho 386, 34 P.3d 1069 (2001)	That whether a duty exists is a question of law subject to free review by the appellate court.	The Court invoked Udy to state the standard of review for duty questions and applied free review to determine whether a statutory duty existed here.
Ahles v. Tabor, 136 Idaho 393, 34 P.3d 1076 (2001)	That negligence per se (violation of a statute/regulation) is a question of law; also cited for the four-element test for when a statute/regulation supplants common-law duty.	The Court used Ahles to frame negligence per se as a legal question and to enumerate the four elements required to replace a common-law duty with a statutory/regulatory duty.
Black Canyon Racquetball Club, Inc. v. Idaho First Nat'l Bank, N.A., 119 Idaho 171, 804 P.2d 900 (1991)	Statement of the elements of a common-law negligence action (duty, breach, causation, damages).	The Court cited this case to state the baseline elements of negligence when contrasting common-law negligence with negligence per se.
Huyck v. Hecla Mining Co., 101 Idaho 299, 612 P.2d 142 (1980)	That the distinction between trespassers, licensees, and invitees controls the scope of a landowner's duty.	The Court relied on Huyck to acknowledge the common-law classification of entrants and the standard owed to trespassers when discussing the County's argument premised on trespasser status.
Peterson v. Romine, 131 Idaho 537, 960 P.2d 1266 (1998)	That a landowner's duty to a trespasser is to refrain from willful or wanton acts causing injury.	The Court cited Peterson for the proposition that common-law duty to trespassers is limited (willful/wanton), and then distinguished that common-law doctrine from the statutory negligence per se framework applicable here.
O'Guin v. Bingham County, 139 Idaho 9, 72 P.3d 849 (2003) (prior appeal)	Determination on prior appeal that the boys were trespassing and that summary judgment against the O'Guins on the common-law negligence claim was proper because no willful or wanton conduct was alleged.	The Court relied on its prior decision to establish that the children were trespassers and to explain why the prior common-law negligence ruling does not preclude the negligence per se analysis now at issue.
Sanchez v. Galey, 112 Idaho 609, 733 P.2d 1234 (1986)	That statutes and administrative regulations may define the applicable standard of care and violations may constitute negligence per se.	The Court invoked Sanchez as authority for the proposition that statutory/regulatory violations can create negligence per se and to support the four-element test.
Brizendine v. Nampa Meridian Irr. District, 97 Idaho 580, 548 P.2d 80 (1976)	That a court may adopt legislative or regulatory requirements as the standard of conduct for a reasonable person (quoting Restatement).	The Court cited Brizendine in support of treating statutory/regulatory obligations as the applicable standard of care in negligence per se cases.
Slade v. Smith's Management Corp., 119 Idaho 482, 808 P.2d 401 (1991)	That establishing negligence per se through violation of a statute conclusively establishes the duty and breach elements of negligence; also cited for the proposition that liability may attach upon proof the violation caused the plaintiff's injuries.	The Court used Slade to explain the legal consequence of negligence per se: that duty and breach are removed from jury consideration once the statutory violation and causation are shown.
Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983)	Cited in support of the proposition that liability may be established when a statutory violation caused plaintiff's injury.	The Court cited Leliefeld (via Slade) for the same proposition that a statutory violation establishing negligence per se can establish liability if causation is shown.
Petersen v. Parry, 92 Idaho 647, 448 P.2d 653 (1968)	Holds that negligence per se normally means ordinary negligence per se and discusses a distinct statutory provision that raised the plaintiff's burden of proof to gross negligence in the guest statute context.	The Court discussed Petersen as the case the district court relied upon; the Court distinguished Petersen because in that case an unrelated statutory provision raised the burden of proof to gross negligence, whereas no such statute exists here to augment the burden required for negligence per se.
Munns v. Swift Transp. Co., Inc., 138 Idaho 108, 58 P.3d 92 (2002)	(Cited in the dissent) That to base negligence on violation of a statute/regulation, the statute/regulation must have been intended to prevent the type of harm that occurred.	The dissent invoked Munns to emphasize the requirement that the statutory/regulatory purpose match the harm alleged and argued the cited landfill regulations were not intended to prevent the type of accidental injuries at issue.

Court's Reasoning and Analysis

The Court's analysis centered on whether the landfill statutes and regulations established a statutory duty that could support negligence per se and, if so, whether that statutory duty supplanted the common-law duty owed to trespassers.

Standard of review. The Court reiterated that whether a duty exists and the question of negligence per se are questions of law subject to free appellate review (citing Udy and Ahles).

Negligence per se framework and elements. The Court adopted the four-element framework (from Ahles and Sanchez) required to replace a common-law duty with a statutory/regulatory duty:

The statute/regulation must clearly define the required standard of conduct;
The statute/regulation must have been intended to prevent the type of harm the defendant's act/omission caused;
The plaintiff must be within the class the statute/regulation was designed to protect; and
The violation must have been the proximate cause of the injury.

Application of the four elements to the record.

Element 1 (clear standard): The Court concluded the statutory and regulatory provisions (IDAPA rules authorizing the Board of Environmental Quality to adopt solid waste rules, IDAPA 58.01.06.005.02, Idaho Code § 39-7412(6), and 40 C.F.R. § 258.25) clearly defined the County's required standard of conduct to block access when an attendant is not on duty and to limit access to times attendants are on duty. The record showed portions of the landfill were not fenced/blocked and that the landfill was closed with no attendant on duty on the date in question; therefore the County failed to meet that statutory/regulatory standard.
Element 2 (intent to prevent this type of harm): The Court found the statutory purpose—to ensure "protection of human health and the environment" (I.C. § 39-7401(2)) and the CFR language requiring owners/operators to control public access to protect human health—encompassed prevention of injury and death from landfill hazards. The Court also relied on language from the EPA Technical Manual (cited in the opinion) indicating unauthorized persons are frequently unfamiliar with landfill hazards and that uncontrolled access may lead to injury and death, concluding the regulations were intended to prevent the type of harm experienced by the children.
Element 3 (plaintiffs within protected class): The Court held the O'Guin children, as "unauthorized persons" or trespassers, fit within the class of persons the access-control regulations were designed to protect because the rules use the term "unauthorized persons" without differentiating their purpose for entering (e.g., dumping vs. playing).
Element 4 (proximate cause): The Court noted that the record contained an affidavit creating a disputed factual issue as to whether the County's statutory/regulatory violations proximately caused the children's deaths, i.e., causation was not resolved against the O'Guins at summary judgment.

Statutory duty versus common-law trespasser duty. After concluding the regulations established a duty and were breached, the Court held it was legal error for the district court to require the O'Guins to meet the common-law willful-or-wanton standard applicable to trespassers. The Court explained that when a statute or regulation adequately defines the required standard of care, it "supplants the reasonable person standard" of ordinary negligence and therefore there was no need to look to the common-law trespasser duty once the statutory duty was found applicable (citing Ahles, Slade, and related authorities).

Rejection of the district court's reliance on Petersen v. Parry. The Court explained the district court's reliance on Petersen (where a separate statute raised the plaintiff's burden to gross negligence in the guest statute context) was misplaced. Petersen involved an independent statutory provision that expressly increased the proof burden; by contrast, no Idaho statute in this case increases the plaintiffs' burden to show willful or wanton conduct. Therefore requiring a willful-or-wanton showing here would effectively nullify the statutory command to block access when an attendant is not on duty.

Disposition on attorney fees request by County. The Court denied the County's request for attorneys' fees on appeal under I.C. § 6-918A because there was no showing the O'Guins acted in bad faith; moreover the O'Guins had prevailed on appeal on related matters previously.

Dissenting view (Justice Eismann). Justice Eismann dissented, arguing (summarized from the dissent) that the cited IDAPA rules and 40 C.F.R. § 258.25 were aimed at protecting against health hazards from illegal dumping and environmental harm (pollution, disease), not to prevent injuries from accidents by trespassers. The dissent emphasized that the regulations expressly allow certain types of barriers (trees, hedges, berms, open farm-type fencing) that would deter vehicles but would not necessarily keep out trespassing pedestrians, and argued the federal safety regulation that addresses "health and safety" (40 C.F.R. 257.3-8(d)) does not govern municipal solid waste landfills under part 258, so it was inapplicable. The dissent maintained the majority improperly broadened the meaning of "health" to include "safety" and would effectively rewrite the regulations retrospectively to require fencing to keep out pedestrians.

Holding and Implications

Holding: The Supreme Court of Idaho reversed the district court's grant of summary judgment to Bingham County on the negligence per se claim, concluding the district court erred by applying the common-law willful-or-wanton trespasser standard after finding a statutory/regulatory duty had been established and breached. The Court vacated the district court's summary judgment and remanded the case for further proceedings. The Court awarded costs on appeal to the O'Guins and denied the County's request for attorney fees on appeal.

Implications:

Direct effect: The summary judgment in favor of the County on the negligence per se claim was vacated and the case remanded for further proceedings addressing negligence per se and the factual issues (including causation) identified by the Court. The O'Guins were awarded costs on appeal; no appellate attorney fees were awarded to the County.
Legal guidance provided: The opinion clarifies that, under Idaho law, a statute or regulation that clearly defines the standard of conduct and meets the established four-part test can supplant the common-law duty owed to trespassers; once a statutory/regulatory duty applies the common-law willful-or-wanton limitation is not an independent additional burden imposed on plaintiffs for purposes of negligence per se. The Court distinguished cases (e.g., Petersen) that involved separate statutory provisions expressly changing the burden of proof.
Broader precedent: The Court applied existing negligence per se principles (as articulated in Idaho cases) to landfill access regulations and articulated that the statutory scheme governing landfill access can, under the four-element test, form the basis for negligence per se even where the injured person was a trespasser. The decision therefore affirms that statutory/regulatory duties may replace common-law distinctions in appropriate circumstances identified by the four-element test.

Note on sources used: This summary is strictly limited to and based exclusively upon the content contained in the provided opinion excerpt of O'Guin v. Bingham County (Oct. 3, 2005). No outside facts or interpretations beyond the opinion's text have been introduced.

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Frank and Leslie O'GUIN, husband and wife, indi v. dually, and in their capacity as parents and legal guardians of Frank O'Guin, Jr., a minor, Plaintiffs-Appellants,

TROUT, Justice.

Frank and Leslie O'Guin, acting as individuals and as legal guardians of Frank O'Guin Jr. (the O'Guins), appeal the district court's grant of summary judgment in favor of Bingham County, Bingham County Commissioners and Bingham County Public Works, (collectively the County). Because the district court erred in its determinations regarding the negligence per se claim, we reverse the grant of summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 7, 1999, Shaun and Alex O'Guin were killed while playing at the Bingham County landfill. Apparently, a section of the pit wall collapsed and crushed the children. Their older brother, Frank Jr., initially discovered their bodies at the bottom of the pit. Earlier that day, the children had been eating lunch at Ridgecrest Elementary School as part of a summer lunch program. As they started walking home, the children went through an unlocked gate at the back of the schoolyard and through a privately owned empty field. The empty field is situated between the landfill and the schoolyard. The border between the empty field and the landfill was unobstructed. At the time of the children's death, the landfill was open to the public one day a week. It was closed on the day the children were killed and no landfill employees were present on the site.

The O'Guins filed an action alleging the landfill was an attractive nuisance and that the County breached certain legal duties to control access to the landfill. The County filed a motion for summary judgment. In ruling on the motion, the district court dismissed the attractive nuisance claim for failure to assert facts that prove an essential element of the claim but denied the motion as to the common law negligence claim and The County requested permission to appeal and in response to the County's request, the district court sua sponte reconsidered its original decision on the motion for summary judgment and issued a substitute decision. In its substitute decision, the district court granted summary judgment to the County on all claims. On appeal to this Court, we affirmed summary judgment on the attractive nuisance and common law negligence claims. Because the district court's substitute decision did not address the negligence per se claim, we remanded the case to the district court for further consideration. See O'Guin v. Bingham County, 139 Idaho 9, 72 P.3d 849 (2003). Upon remand, the County renewed its motion for summary judgment on the negligence per se claim and the district court granted the motion. The O'Guins again appealed.

II. STANDARD OF REVIEW

"Generally, the question of whether a duty exists is a question of law, over which we exercise free review." Udy v. Custer County, 136 Idaho 386, 389, 34 P.3d 1069, 1072 (2001). Negligence per se, which results from the violation of a specific requirement of law or ordinance, is a question of law, over which this Court exercises free review. Ahles v. Tabor, 136 Idaho 393, 395, 34 P.3d 1076, 1078 (2001).

III. ANALYSIS

A. Negligence Per Se Claim

The dispute in this case focuses on the duty or standard of care the County owed to the O'Guin children. The parties disagree on how the common law duty of a landowner to a trespasser affects the statutory duty of a landfill owner. The O'Guins argue that once the district court determined the regulations established a duty and the County had breached that duty, there was no need to apply the common law willful or wanton standard. The County argues that because the O'Guin children were trespassers, even if the requirements of negligence per se are met, the O'Guins must still prove that the County's conduct was willful or wanton, and the O'Guins have failed to allege that in their complaint. The County also argues that negligence per se does not apply here.

"The elements of a common law negligence action are (1) a duty, recognized by law, requiring the defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual loss or damage." Black Canyon Racquetball Club, Inc. v. Idaho First Nat'l Bank, N.A., 119 Idaho 171, 175-76, 804 P.2d 900, 904-05 (1991). The distinction between trespassers, licensees and invitees is the controlling test in determining the scope and extent of the duty of care owed by landowners to entrants. See Huyck v. Hecla Mining Co., 101 Idaho 299, 612 P.2d 142 (1980). "A landowner's duty to a trespasser is to refrain from willful or wanton acts which might cause injury." Peterson v. Romine, 131 Idaho 537, 540, 960 P.2d 1266, 1269 (1998) (citing Huyck, 101 Idaho at 301, 612 P.2d at 144). In the first appeal in this case, this Court held "the facts before the district court support the court's conclusion that the boys were trespassing at the time of the accident." O'Guin v. Bingham County, 139 Idaho 9, 13, 72 P.3d 849, 853 (2003). This Court also affirmed the summary judgment entered against the O'Guins on the common law negligence claim because the complaint "[did] not allege any willful or wanton conduct by the County [nor a] breach of the duty owed to a trespasser." Id. at 15, 72 P.3d at 855.

Negligence Per se

"[I]n Idaho, it is well established that statutes and administrative regulations may define the applicable standard of care owed, and that violations of such statutes and regulations may constitute negligence per se." Sanchez v. Galey, 112 Idaho 609, 617, 733 P.2d 1234, 1242 (1986). "A court may adopt `as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation. . . .'" Brizendine v. Nampa Meridian Irr. District, 97 Idaho 580, 586, 548 P.2d 80, 86 (1976) (quoting RESTATEMENT (SECOND) OF TORTS § 286 (1965)). "The effect of establishing negligence per se through violation of a statute is to conclusively establish the first two elements of a cause of action in negligence. . . ." Slade v. Smith's Management Corp., 119 Idaho 482, 489, 808 P.2d 401, 408 (1991). "Negligence per se lessens the plaintiffs burden only on the issue of the `actor's departure from the standard of conduct required of a reasonable man.'" Ahles v. Tabor, 136 Idaho 393, 395, 34 P.3d 1076, 1078 (2001) (quoting RESTATEMENT (SECOND) OF TORTS § 288B cmt. B (1965)). "Thus, the elements of duty and breach are `taken away from the jury.'" Ahles, 136 Idaho at 395, 34 P.3d at 1078 (quoting Prosser and Keeton on Torts 230 (5th ed. 1984)).

In order to replace a common law duty of care with a duty of care from a statute or regulation, the following elements must be met: (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. Ahles, 136 Idaho at 395, 34 P.3d at 1078 (citing Sanchez v. Galey, 112 Idaho 609, 617, 733 P.2d 1234, 1242 (1986)).

As to the first element, the district court found, and we agree, that the statute and regulations in this case clearly define the County's standard of conduct. Idaho Code Title 39, Chapters 1 and 74 grant authority to the Board of Environmental Quality to adopt solid waste management rules and standards. Those rules require municipal solid waste landfill units to block access by unauthorized persons. The rule in effect at the time of the boys' deaths provided in pertinent part:

Solid waste management sites shall comply with the following:

. . .

e. Access to the site shall be limited to those times when an attendant is on duty.

i. Hours of operation and other limitations shall be prominently displayed at the entrance.

ii. The site shall be fenced or otherwise blocked to access when an attendant is not on duty.

iii. Unauthorized vehicles and persons shall be prohibited access to the site.

IDAPA 58.01.06.005.02. In addition, Idaho Code § 39-7412(6) states that owners or operators of all municipal solid waste landfill units shall "[p]rovide and control access as provided in 40 CFR 258.25." That section of the Code of Federal Regulations states:

Owners or operators of all municipal solid waste landfill units must control public access and prevent unauthorized vehicular traffic and illegal dumping of wastes by using artificial barriers, natural barriers, or both, as appropriate to protect human health and the environment.

40 C.F.R. § 258.25. These regulations require the County to fence or otherwise block access to the landfill when an attendant is not on duty. The Legislature has specifically declared it to be "unlawful" to fail to comply with the landfill rules. I.C. § 39-7402(1). In this case, the record reveals that on July 7, 1999, some of the landfill boundaries were not fenced or blocked. There is also evidence that the landfill was closed and no attendant was on duty on July 7, 1999. Therefore, the district court was correct that the regulations clearly define the County's required standard of conduct, and the County failed to meet that standard.

The second element asks whether the death of the O'Guin children is the type of harm the statute and regulations were intended to prevent. Idaho Code Section 39-7401(2) states:

[I]t is the intent of the legislature to establish a program of solid waste management which complies with 40 CFR 258 and facilitates the incorporation of flexible standards in facility design and operation. The legislature hereby establishes the solid waste disposal standards and procedures outlined herein and a facility approval process for the state of Idaho, the political subdivisions thereof, and any private solid waste disposal site owner in order to facilitate the development and operation of solid waste disposal sites, to effect timely and responsible completion of statutory duties and to ensure protection of human health and the environment, to protect the air, land and waters of the state of Idaho.

I.C. § 39-7401(2). This section demonstrates the legislature's desire to ensure the "protection of human health" in the "development and operation of solid waste disposal sites." It also makes specific reference to 40 C.F.R. § 258. As quoted previously, Section 258.25 of the Code of Federal Regulations states "[o]wners or operators of all municipal solid waste landfill units must control public access . . . by using artificial barriers, natural barriers, or both, as appropriate to protect human health. . . ." Further indication of the intent of this section can be found in the Technical Manual on Solid Waste Disposal Facility Criteria (Manual) promulgated by the United States Environmental Protection Agency. The Manual contains a disclaimer that the policies set forth in the Manual are not intended to create any enforceable rights in litigation and are simply for guidance. However, the Manual can serve to give further insight into the interpretation of the provisions in the CFR. Specifically, Section 3.7.3 entitled "Technical Considerations" relates to the access requirements of 40 CFR § 258.25 and provides in part

Frequently, unauthorized persons are unfamiliar with the hazards associated with landfill facilities, and consequences of uncontrolled access may include injury and even death. Potential hazards are related to inability of equipment operators to see unauthorized individuals during operation of equipment and haul vehicles; direct exposure to waste (e.g., sharp objects and pathogens); inadvertent or deliberate fires; and earth-moving activities.

This provision indicates a broad definition of what is intended by "protection of human health" and certainly includes possible injury or death to people on the facility grounds. Operators of a landfill have a duty not only to prevent illegal dumping and unauthorized vehicular traffic, but to control public access as well.

The County argues that the intent of these provisions is merely to prevent unauthorized vehicular traffic and illegal dumping. However, the inclusion of physical injury to "unauthorized individuals" by equipment or earth-moving activities, as potential landfill hazards, would indicate otherwise. A similar hazard is presented by a dangerously sloping wall in the landfill. The O'Guin's expert testified that the angle of the slope where the accident occurred "was extremely dangerous" and violative of EPA and OSHA regulations. These statutes and rules demonstrate that the Legislature intended to safeguard both human health and safety. The injury to the safety of the O'Guin children is the type of harm the Idaho statute and regulations were intended to prevent because the children's deaths relate directly to control of public access and protection of human health and safety.

A further indication of the intent to protect the public appears in a subsequent revision to the landfill rules in which existing landfills were required to comply with 40 C.F.R. 257.3 for the two-year period beginning April 26, 2002. See IDAPA 58.01.06.011-013. Subpart 8 of that C.F.R. regulation, entitled "Safety," states in pertinent part, "A facility or practice shall not allow uncontrolled public access so as to expose the public to potential health and safety hazards at the disposal site.

As to the third element, the O'Guin children are members of the class of persons the regulations were designed to protect. The regulations state "[unauthorized vehicles and persons shall be prohibited access to the site." IDAPA 58.01.06.005.02. As trespassers, the O'Guin children were certainly "unauthorized persons" and the regulations do not differentiate between the unauthorized person who comes to the landfill to dump improper materials and the unauthorized person who comes to the landfill to play. Furthermore, the regulations require the landfill "be fenced or otherwise blocked to access when an attendant is not on duty." IDAPA 58.01.06.005.02. This regulation demonstrates the connection between the requirement that the landfill perimeter be fenced or blocked and the protection of persons whose access is unauthorized. Therefore, the regulations controlling access were designed to protect the human health and safety of the unauthorized person who comes to a landfill when an attendant is not on duty and the O'Guin children fit within that category.

Finally, as to the fourth element, there is at least a disputed issue of fact created by an affidavit in the record, as to whether the County's violation of the statute and regulations resulted in the O'Guin children's deaths.

Statutory Duty

After concluding the regulations established a duty and that the County had breached that duty, the district court held "the O'Guins' allegations of negligence per se do not change the duty owed by the County to trespassers." This was error. There was no need for the district court to look to the common law duty owed to trespassers once it determined the statutory duty applied. "Liability may become established upon proof that the violation of the statute caused the injuries of the plaintiff and the plaintiff's subsequent damages." Slade v. Smith's Management Corp., 119 Idaho 482, 489, 808 P.2d 401, 408 (1991) (citing Leliefeld v. Johnson, 104 Idaho 357, 370, 659 P.2d 111, 124 (1983)). A statute that adequately defines the required standard of care "supplants the reasonable person standard encompassed in the concept of ordinary negligence." Ahles, 136 Idaho at 395, 34 P.3d at 1078 (citing 57A AM.JUR.2D Negligence § 748 (1989)). If a breach of the County's statutory duty requires willful or wanton conduct, imposition of the common law's higher burden would be contrary to the express language of the statute and essentially remove the statutory command to fence or otherwise block access to unauthorized users.

Relying upon this Court's decision in Petersen v. Parry, 92 Idaho 647, 448 P.2d 653 (1968), the district court held the O'Guins were required "to demonstrate that the County willfully and wantonly violated the IDEQ Rules and Standards governing access control." In Petersen, two cars collided and all occupants were killed. The parents of a minor occupant brought an action for negligence. Prior to the collision, the cars were traveling in opposite directions, with one car driving on the right half of the roadway while the other car was driving substantially on the wrong half of the roadway. The parents sought to use the violation of a statute that required vehicles be driven on the right half of the roadway to establish negligence per se. This Court noted that under the facts of the case, violation of the statute constituted negligence per se but that a separate statute increased the burden of proof to require a showing of "gross negligence." At the time, the other statute was known as I.C. § 49-1401. It stated:

Liability of motor owner to guest — No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause for damages against such owner or operator for injures, death or loss, in case of accident, unless such accident shall have been intentional on the part of the said owner or operator or caused by his intoxication or gross negligence.

This Court concluded that because the deceased minor was a guest within the purview of the statute and because there was no contention that the accident was intentional or caused by intoxication, liability had to be predicated upon evidence showing conduct that constituted gross negligence. Petersen, 92 Idaho at 654, 448 P.2d at 660. It was in that context that this Court held:

`[N]egligence per se' merely means `ordinary negligence per se.' I have found no Idaho authority holding that the naked violation of a positive statute such as [the statute requiring vehicles be driven upon the right half of the roadway] constitutes gross negligence per se. . . .

Id. at 653, 448 P.2d at 659. The O'Guins' situation is distinguishable from the situation in Petersen. Although both cases involved the violation of a statute or regulation (the violation in Petersen was driving on the wrong side of the road; the violation in this case is the County not fencing or preventing unauthorized access), the plaintiffs in Petersen were required by an unrelated statute to show the defendant's conduct constituted gross negligence. Unlike the situation in Petersen, there is no statute applicable to the O'Guins that raises their burden of proof. The district court in this case apparently thought the common law duty owed by a landowner to trespassers to refrain from wanton or willful conduct, was analogous to the statute in Petersen that raised the burden of proof. This is shown by the district court's comparison of Petersen to the O'Guins. The district court stated:

[T]he plaintiffs [in Petersen] were still required to demonstrate gross negligence despite the fact that the driver was guilty of "ordinary" negligence per se. Therefore, where, as in this case, a more onerous burden of proof is imposed upon a plaintiff, proof of a "naked" violation of a statutory duty of care by the defendant will not meet that more onerous burden of proof.

The analogy between the statute in Petersen and the common law duty of landowners in O'Guin is flawed. The guest statute in Petersen was an express mandate by the legislature specifically designed to raise the burden of proof to a level higher than that required in ordinary actions for damages against owners or operators of vehicles. On the other hand, the common law duty of landowners to trespassers merely defines the standard of conduct a reasonable landowner in a common law negligence action owes to trespassers. Standing alone, the regulations in this case are sufficient to satisfy the duty element for a negligence per se action. The O'Guins' use of statutory obligations to establish the County's duty under a negligence per se action replaces the common law duty of landowners to trespassers. Consequently, the district court erred in requiring the O'Guins to plead and prove a willful and wanton violation of the landfill owner regulations.

B. Attorney Fees On Appeal

The County requests attorney fees on appeal pursuant to I.C. § 6-918A. That section requires "a showing, by clear and convincing evidence, that the party against whom or which such award is sought was guilty of bad faith in the commencement, conduct, maintenance or defense of the action." I.C. § 6-918A. Because there is no indication that the O'Guins were guilty of bad faith in the commencement, conduct, or maintenance of this action, and indeed, have prevailed twice now on appeal, there is no basis for an award of attorney fees.

IV. CONCLUSION

The district court erred in determining that the County's violations here were not negligence per se and by applying the common law willful or wanton standard to the O'Guins' claim. The district court's grant of summary judgment is vacated and the case remanded for further proceedings. We award costs on appeal to the O'Guins.

Chief Justice SCHROEDER, Justice JONES and Justice WALTERS, Pro Tem concur.

Justice EISMANN, Dissenting.

I cannot concur in the majority opinion because the regulations cited therein as supporting a claim of negligence per se were clearly not intended to prevent the type of harm involved in this case.

I agree that the common law rule regarding the liability of a landowner to trespassers can be modified by legislation or an administrative regulation that modifies the applicable standard of care. To base a claim of negligence upon the violation of a statute or regulation, however, the statute or regulation must have been intended to prevent the type of harm the defendant's act or omission caused. Munns v. Swift Transp. Co., Inc., 138 Idaho 108, 58 P.3d 92 (2002).

The majority opinion relies upon IDAPA 58.01.06.005.02 and 40 C.F.R. 258.25 as providing the applicable standard of care. Neither of those regulations is intended to prevent trespassers from injuring themselves through an accident at a landfill. They are intended to prevent trespassers from dumping or salvaging materials that may be harmful to health or the environment.

The purpose of the IDAPA rules is stated in IDAPA 58.01.06.004.01 and .02, which provide:

01. Solid Waste Management. All solid waste shall be managed, whether it be during storage, collection, transfer, transport, processing, separation, incineration, composting, treatment, reuse, recycling, or disposal, to prevent health hazards, public nuisances, or pollution of the environment.

02. Requirements. Solid wastes shall be managed such that they shall not:

a. Provide sustenance to rodents or insects which are capable of causing human disease or discomfort.

b. Cause or contribute to the pollution of the air.

c. Cause or contribute to the pollution of surface or underground waters.

d. Cause excessive abuse of land.

e. Cause or contribute to noise pollution.

f. Abuse the natural aesthetic quality of an area.

g. Physically impair the environment to the detriment of man and beneficial plant life, fish, and wildlife.

The regulations are intended to protect against health hazards from pollution and disease. They are not intended to protect against injury from accidents. The same holds for 40 C.F.R. 258.25, which states:

Owners or operators of all MSWLF [municipal solid waste landfill] units must control public access and prevent unauthorized vehicular traffic and illegal dumping of wastes by using artificial barriers, natural barriers, or both, as appropriate to protect human health and the environment.

The concern is illegal dumping of wastes that are dangerous to human health and the environment. The word "health" is not normally construed to include freedom from accidents. Rather, it simply means "freedom from disease or abnormality." The majority can reach its conclusion only by redefining the word "health" to include "safety." Such re-definition is not supported either by Idaho law or by the federal regulations.

The American Heritage Dictionary of the English Language (4th ed. 2000), available at http:/www.dictionary.reference.com/search? = health.htm. Another dictionary defines "health" as follows:

1a: the condition of an organism or one of its parts in which it performs its vital functions normally or properly: the state of being sound in body or mind nursed him back to ~ he is the picture of ~ dental ~ mental ~ — compare DISEASE b: the condition of an organism with respect to the performance of its vital functions esp. as evaluated subjectively or nonprofessionally how is your — today never in better ~ her — is very delicate broken in ~ went traveling for his —

Webster's Third New International Dictionary of the English Language 1043 (Philip Babcock Gove et al. eds., 1971). Webster's definition of "health" states that it should be compared with "disease," which it defines as follows:

b (1): an impairment of the normal state of the living animal or plant body or of any of its components that interrupts or modifies the performance of the vital functions, being a response to environmental factors as malnutrition, industrial hazards, or climato, to specific infective agents as worms, bacteria, or viruses, to inherent defects of the organism as various genetic anomalies, or to a combination of these factors: SICKNESS, ILLNESS (2): a particular instance or kind of such impairment baby-pig ~ hampered by her ~: MALADY, AILMENT — compare HEALTH.

Id. at 648. Black's Law Dictionary, 724 (7th ed. 1999), defines "health" as: "1 . The state of being sound or whole in body, mind, or soul. 2. Freedom from pain or sickness."

Idaho Code § 39-7401(2) states that the legislature's intent when it adopted the Idaho Solid Waste Facilities Act was "to establish a program of solid waste management which complies with 40 C.F.R. 258." The purpose of Section 258 is to establish minimum national criteria for all municipal solid waste landfills which will "ensure the protection of human health and the environment." 40 C.F.R. 258.1(a). Consistent with that purpose, Section 258.25 requires owners or operators of municipal solid waste landfill units to "control public access and prevent unauthorized vehicular traffic and illegal dumping of wastes by using artificial barriers, natural barriers, or both, as appropriate to protect human health and the environment." 40 C.F.R. 258.25. The regulation only requires barriers to prevent "unauthorized vehicular traffic and illegal dumping of wastes." The required barriers need not be able to keep out trespassing pedestrians who may accidentally injure themselves at the landfill.

The majority quotes a portion of § 3.7.3 from the Solid Waste Disposal Facility Criteria technical manual for its construction of 40 C.F.R. § 258.25 in order to arrive at the conclusion that Bingham County was required to fence out trespassing pedestrians from its landfill. Reading that entire subsection of the technical manual shows that the majority's interpretation is wrong. The last paragraph of that subsection states:

Acceptable measures to limit access of unauthorized persons to the disposal facility include gates and fences, trees, hedges, berms, ditches, and embankments. Chain link, barbed wire added to chain link, and open farm-type fencing are examples of fencing that may be used. Access to facilities should be controlled through gates that can be locked when the site is unsupervised. Gates may be the only additional measure needed at remote facilities.

Obviously, barriers consisting of "trees, hedges, berms, ditches, and embankments" or "open farm-type fencing" are not designed to keep out trespassing pedestrians. They are only designed to keep out vehicles that may be transporting waste into the facility when it is closed. The fact that these types of barriers are expressly stated as being acceptable shows that the regulation was not intended to require municipal solid waste disposal facilities to fence out trespassing pedestrians.

The federal regulation dealing with the physical safety, as opposed to the health, of trespassers entering the landfill is 40 C.F.R. 257.3-8(d). That regulation, which is entitled "Safety," states, "A facility or practice shall not allow uncontrolled public access so as to expose the public to potential health and safety hazards at the disposal site." If the word "health" included "safety," as the majority contends, then there would have been no reason to adopt 40 C.F.R. 257.3-8(d). It would merely be surplusage. Indeed, if the word health included safety then there would be no reason for 40 C.F.R. 257.3-8(d) to expressly mention both health and safety. Although 40 C.F.R. 257 requires prohibiting uncontrolled public access in order to protect against potential "safety hazards at the disposal site," such regulation does not apply in this case.

The criteria in 40 C.F.R. 257 "do not apply to municipal solid waste landfill units, which are subject to the revised criteria contained in part 258 of this chapter." 40 C.F.R. § 257 1(a)(10) A "municipal solid waste landfill" is one that receives household waste. 40 C.F.R. § 257.2.

Finally, the majority notes in footnote 1 of its opinion that years after the accident in this case IDAPA 58.01.06.011-.013 was amended to require that landfills comply with 40 C.F.R. 257.1-.3 within two years after April 26, 2002. The majority contends that this amendment supports its position because "Subpart 8 of that C.F.R. regulation, entitled `Safety,' states in pertinent part, `A facility or practice shall not allow uncontrolled public access so as to expose the public to potential health and safety hazards at the disposal site.'"

I cannot see how this amendment supports the reasoning of the majority opinion. IDAPA 58.01.06.004 already required that landfills be managed "to prevent health hazards," and such management include limiting access to the site to those times when an attendant is on duty. If the word "health" was already intended to include "safety," then there would have been no need to later amend IDAPA to incorporate the safety requirements set forth in 40 C.F.R. 257.3-8. Rather than supporting the majority's argument, this amendment to IDAPA shows that at the time of the accident in this case, the meaning of the word "health" did not include "safety." Rather, health should simply be given its usual, plain, and ordinary meaning. Although this was a tragic accident, it is not proper for this Court to retroactively amend the regulations to require municipalities to fence out trespassing pedestrians.

O'GUIN v. BINGHAM COUNTY