Slip and Fall In Mini Mart Injury In Idaho

On February 2, 1996, X slipped and fell on some ice and sustained injuries. The location of the fall was a vacant lot adjacent to H's Mini-Mart in J. X filed suit against H's Mini-Mart, Inc., and D. T, the owner of the real property where the H's store was located, hereinafter collectively referred to as "H's." X claimed that her injuries were the result of their negligence and that H's had a duty to remove ice and snow in the area where she fell. H's filed a motion for summary judgment asserting that X was not on their property when she fell and that they had no legal duty with respect to the adjacent property. Following a hearing, the district court granted the motion, entered a judgment in favor of H's, and dismissed X's complaint with prejudice. The district court granted summary judgment on the ground that H's had shown that X's fall was not on H's property and that H's owed no duty of care to X when she was on adjacent land that H's did not own. X appeals. ANALYSIS Location of accident X argues that the district court erred in granting summary judgment because there was a material issue of fact regarding whether she was on property owned by H's at the time she fell. She asserts that her affidavit, submitted in opposition to H's motion for summary judgment, was sufficient to create a genuine issue of material fact. Sometime after X's fall, a motel was built on the vacant lot adjacent to H's. the record on appeal indicates that X was deposed on July 2, 1998. According to X's deposition, the spot where she had fallen in 1996 was, at the time of her deposition, occupied by the motel. Based on this testimony, H's moved for summary judgment on the ground that X did not fall, and was not injured, on land owned by H's. Filed in support of H's motion were several exhibits, including a plat diagram provided by the J County Assessor's office and the legal description of the property on which the motel was located. According to T's affidavit in support of the motion for summary judgment, a review of the records indicated that H's did not own, nor did it ever own, the property on which the motel was located and upon which X was injured. In response to H's motion and supporting affidavits, X filed affidavits in opposition. After reviewing the diagrams submitted by H's, X averred that "she may well have been on the property owned" by H's at the time of her accident. Idaho Rule of Civil Procedure 56(e) governs the defense of a motion for summary judgment, and states, in relevant part: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of that party's pleadings, but the party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. X contends that H's owed her a duty of care regardless of whether she was on land owned by H's. X asserts that H's was "occupying" the vacant lot because patrons of H's were using that lot for ingress and egress. Generally, the question whether a duty exists is a question of law. Coghlan, 133 Idaho at 400, 987 P.2d at 312. Therefore, this Court exercises free review. Turpen v. Granieri, 133 Idaho 244, 247, 985 P.2d 669, 672 (1999). X relies on two cases from other states in support of her argument that the duty of an occupier of land extends off the premises. In Limberhand v. Big Ditch Co., 218 Mont. 132, 706 P.2d 491 (Mont. 1985), the court relied on a state statute defining negligence in rendering its decision. In Bober v. New Mexico State Fair, 111 N.M. 644, 808 P.2d 614 (N.M. 1991), the court relied on a state statute defining the duty to exercise ordinary care for the safety of the person and property of others. B. Attorney Fees H's asserts that X has pursued this appeal frivolously, unreasonably, and without foundation. H's also argues that X's arguments on appeal are the same as those presented to the district court. Thus, H's contends that they are entitled to attorney fees on appeal. An award of attorney fees may be granted under I.C. 12-121 and I.A.R. 41 on appeal to the prevailing party. Such an award is appropriate when this Court is left with the abiding belief that the appeal has been brought or defended frivolously, unreasonably or without foundation. Excel Leasing Co. v. Christensen, 115 Idaho 708, 712, 769 P.2d 585, 589, (Ct. App. 1989). When a party on appeal fails to present any significant issue regarding a question of law, where no findings of fact made by the district court were clearly or arguably unsupported by substantial evidence, and where this Court is not asked to establish any new legal standards or modify existing ones, the appeal will be deemed to be unreasonable and without foundation. Id. X argued for an extension of the law in the area of premises liability, relying on case law from other jurisdictions in support of her argument. Additionally, X correctly noted that there is no Idaho case law addressing the issues presented in this appeal. Therefore, we cannot say that this appeal was pursued frivolously. Accordingly, H's request for attorney fees is denied. CONCLUSION We hold that X's affidavit in opposition of H's motion for summary judgment was insufficient to create a genuine issue of material fact regarding whether she was on H's land at the time she was injured. We further hold that a commercial landowner owes no duty of care to an individual who is trespassing on land not owned by, but adjacent to, that landowner's property. Therefore, the order of the district court, granting summary judgment in favor of H's, is affirmed. Costs, but not attorney fees, are awarded on appeal to respondents, H's Mini-Mart, Inc. and T.