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Terry Johns and Ginny Smith v. Sheila L. Wright-Scott; John Does 1-10; Jane Does 1-10; Doe

June 4, 2012

TERRY JOHNS AND GINNY SMITH,
PLAINTIFFS,
v.
SHEILA L. WRIGHT-SCOTT; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; AND DOE ENTITIES 1-10, DEFENDANTS,
SHEILA L. WRIGHT-SCOTT, THIRD-PARTY PLAINTIFF,
v.
HALI STRANDLUND; DOES 1-10, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER DENYING THIRD-PARTY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION.

This is a personal injury action. While staying with six others at a vacation rental in Kona, Hawaii, Plaintiffs Terry Johns and Ginny Smith fell six feet onto lava rocks when a fence they were allegedly leaning on broke. Plaintiffs filed this action against the owner of the home, Shelia L. Wright-Scott. Wright-Scott then filed a third-party complaint against the renter who signed the vacation rental agreement, Hali Strandlund, seeking indemnity and contribution, and asserting a breach of contract claim. Strandlund now seeks summary judgment as to all causes of action in the Third-Party Complaint. The court denies the motion.

II. FACTUAL BACKGROUND.

Plaintiffs and Strandlund were among a group of eight individuals from Canada who rented a vacation home in Kona, Hawaii. Separate and Concise Statement of Facts in Supp. of Third-Party Def. Hali Strandlund's Mot. for Summ. J. ("Strandlund Facts") No. 1, ECF No. 23. Strandlund found the home on a website that advertises vacation rentals and signed a lease agreement on September 22, 2010. Id. No. 2. The lease term was from February 5, 2011, to February 12, 2011. Id. No. 5.

On the evening of February 8, 2011, after consuming alcohol at the home, Plaintiffs went outside and allegedly leaned against a fence. Id. Nos. 10, 11; Def. Third-Party Pl. Separate and Concise Statement of Facts in Opp. to Strandlund's Facts ("Wright-Scott's Facts") No. 11, ECF No. 31. The fence appears to have been a wooden fence with panels. One of the panels broke, and Plaintiffs say they fell approximately six feet onto lava rocks below the home. Strandlund's Facts No. 11; WrightScotts's Facts No. 11. The fall allegedly caused severe injuries. Strandlund's Facts No. 13. Plaintiffs were taken to a hospital on the Big Island. Id. Johns was then transported by plane to a hospital in Honolulu. Id.

Plaintiffs filed this action against Wright-Scott seeking recovery for their injuries. Wright-Scott then filed a third-party complaint against Strandlund. Wright-Scott seeks indemnity and contribution to the extent she is found liable for Plaintiffs' injuries and also asserts a breach of contract claim. Strandlund now seeks summary judgment on all claims in the Third-Party Complaint.

III. SUMMARY JUDGMENT STANDARD.

Summary judgment shall be granted when "the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A moving party has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).

The burden initially falls on the moving party to identify for the court "the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. Catrett, 477 U.S. 317, 323 (1986)); accord Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006). "A fact is material if it could affect the outcome of the suit under the governing substantive law." Miller, 454 F.3d at 987. When the moving party bears the burden of proof at trial, that party must satisfy its burden with respect to the motion for summary judgment by coming forward with affirmative evidence that would entitle it to a directed verdict if the evidence were uncontroverted at trial. Id. (quoting C.A.R. Transp. Brokerage Co., Inc. v. Darden Rest., Inc., 213 F.3d 474, 480 (9th Cir. 2000)). When the nonmoving party bears the burden of proof on one or more issues at trial, the party moving for summary judgment may satisfy its burden with respect to those issues by pointing out to the court an absence of evidence from the nonmoving party. Miller, 454 F.3d at 987.

When the moving party meets its initial burden on a summary judgment motion, "[t]he burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial." Id. The court must not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial. See Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). On a summary judgment motion, "the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor." Miller, 454 F.3d at 988 (brackets omitted) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)).

IV. ...


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