PERSEVERANCE HAS PAID OFF for Frank and Leslie O'Guin. Their sons, Shaun and Alex, were playing at an Idaho landfill when a section of the pit wall collapsed and crushed them. The site, which had no perimeter fencing, was closed on the day the children were killed, and no landfill employees were present. At first rebuffed, the parents will now get their day in court, thanks to a ruling by the Idaho Supreme Court.

The parents sued the county alleging that the landfill was an attractive nuisance and that the county had breached certain legal duties to control access to the site. The trial judge dismissed their lawsuit without addressing one of their negligence claims.

On appeal, the state Supreme Court affirmed the ruling, but sent the case back to the trial court for consideration of the leftover claim. [See “Shattering Shortcut,” Waste Age, Jan. 2004, p. 14]

When the case came up again for hearing, the trial court granted the county's motion to dismiss the remaining claim. The O'Guins again appealed.

How the dispute is resolved turns on the duty or standard of care that the county owed to the O'Guin children. The parties disagreed on whether the ordinary duty of an ordinary landowner to a trespasser is supplanted by a higher standard when the landowner conducts a regulated activity on its property.

Negligence per se is a legal doctrine whereby certain acts are treated as inherently remiss without proof that a standard of conduct or care was known or its breach intended. For example, if a contractor violates the building code when constructing a house and, as a result, the house collapses, the contractor will likely have to pay civil damages to the injured party.

Under Idaho law, statutes and regulations may define the applicable standard of care and, if so, violations of these measures may constitute negligence per se. State solid waste management rules provide, among other things, that landfills be fenced and access by unauthorized persons be blocked unless an attendant is on duty.

“The [trial] court was correct that the regulations clearly define the County's required standard of conduct, and the County failed to meet that standard,” noted the state Supreme Court.

“The injury to the safety of the O'Guin children is the type of harm the … regulations were intended to prevent because the children's deaths relate directly to control of public access and protection of human health and safety,” the court added.

The court also found that the O'Guin children, even as trespassers, were the type of persons the regulations were meant to protect. “The regulations do not differentiate between the unauthorized person who comes to the landfill to [illegally dump] and … who comes to the landfill to play,” the opinion stated.

The justices took issue with the trial judge who had required the O'Guins to allege and prove that the County willfully and wantonly violated the state landfill rules governing access control. “The O'Guins use of statutory obligations to establish the County's duty … replaces the common law duty of landowners to trespassers,” the court determined.

With one dissenting vote, the state high court vacated the lower court's ruling and remanded the case for trial on the negligence per se issue.

[O'Guin v. Bingham County, 122 P.3d 308 (Ida. 2005)]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

The columnist is a Washington, D.C., attorney and serves as general counsel of the Solid Waste Association of North America.