1

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 39816

TRACY L. GAGNON and JEFFREY 

GAGNON, wife and husband,

 Plaintiffs-Appellants,

v.

WESTERN BUILDING MAINTENANCE, 

INC.,

 Defendant-Respondent,

and

JOHN and JANE DOES A-H,

 Defendants.

_______________________________________

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Coeur d’Alene, April 2013 Term

2013 Opinion No. 84

Filed: August 9, 2013

Stephen W. Kenyon, Clerk

Appeal from the District Court of the First Judicial District of the State of 

Idaho, Kootenai County. Hon. John P. Luster, District Judge.

The grant of summary judgment is affirmed. Costs on appeal are awarded to 

Respondent.

Starr Kelso, Coeur d’Alene, attorney for Appellants. 

Law Offices of Raymond Schutts, Liberty Lake, Washington, attorneys for 

Respondent. Edward G. Johnson argued.

____________________________________

W. JONES, Justice

I. NATURE OF THE CASE

A bank hired a contractor to perform janitorial and snow removal services. The written 

contract between the parties lapsed, but they orally renewed their agreement according to the 

same terms. One morning, a bank employee arrived at work and parked in the parking lot. She 

stepped out of her car, slipped on black ice, and was injured. The employee sued the contractor, 

claiming that it had negligently failed to spread ice melt on the parking lot. The district court 

granted the contractor’s motion for summary judgment, holding that the contractor owed no duty 

to spread ice melt on the parking lot on any day in which less than two inches of snow had fallen. 

The employee timely appealed to this Court.
2

II. FACTUAL AND PROCEDURAL BACKGROUND

In November of 2004, Western Building Maintenance, Inc. (“Western”) entered into a 

contract (the “Written Contract”) with Wells Fargo Bank, N.A. (“Wells Fargo”) under which 

Western agreed to provide janitorial and snow removal services for Wells Fargo at various 

locations in Idaho and Washington. The Contract, which was in effect between December 1, 

2004 and November 30, 2006, included detailed “Performance Specifications” for janitorial 

services and snow removal. The “Snow Removal Specifications” provide in pertinent part:

1. CONTRACTOR will be responsible for managing and supervising all 

Snow Removal Services. CONTRACTOR will provide all necessary 

labor, equipment, materials and supplies needed to perform the 

specifications.

2. CONTRACTOR will bid Snow Removal Services to vendors preapproved by BANK, using the specifications below:

. . . .

b. CONTRACTOR will furnish all necessary labor, equipment, 

materials and supplies (with the exception of ice melt) needed to 

perform the conditions and specifications of Snow Removal.

c. CONTRACTOR will clear all parking areas and/or sidewalks 

when two (2) inches of snow has accumulated. The initial clearing 

will occur prior to 8:00 a.m. of each snow day.

d. Ice melt is to be used when necessary. In most cases, ice melt will 

be furnished by BANK. If not furnished, ice melt is to be billed as 

an extra item.

. . . .

f. Areas surrounding the BANK ATMs should be kept reasonably 

clear of snow and ice 7 days per week, 24 hours a day

. . . .

4. CONTRACTOR shall communicate effectively with subcontractors and 

other employees to ensure that all parking lots, sidewalks and other areas 

designated by this contract are cleared of snow and ice in a timely manner.

(Emphasis in original.)

On the morning of December 5, 2007, Tracy Gagnon arrived at the Wells Fargo branch in 

Hayden, Idaho (the “Hayden Branch”), where she was an employee. The Hayden Branch was 

one of the properties for which Western had contracted to provide snow removal services. 

Gagnon parked in the parking lot, stepped out of her car, slipped on black ice, and was injured. 

She sued Western,1 alleging that it had a duty to maintain the parking lot in a manner that was 

safe for customers and employees, including by removing snow and ice; that Western breached 

 1 Tracy Gagnon’s husband, Jeffrey Gagnon, also filed a loss-of-consortium claim. Because Jeffrey Gagnon’s claim 

is wholly contingent on Western’s liability to his wife, Jeremiah v. Yanke Mach. Shop, Inc., 131 Idaho 242, 249, 953 

P.2d 992, 999 (1998), he is not mentioned further.
3

this duty; and that, as a proximate result, she was injured. Western answered, asserting that it 

had agreed only to remove “fresh accumulations of two inches or more of snow from the Wells 

Fargo parking lot.”

Western then moved for summary judgment, arguing that it owed no duty to Gagnon. In 

support of its motion, Western attached the Affidavit of Western’s owner, Jan C. Vaterlaus. 

Vaterlaus admitted that Western provided snow removal services for Wells Fargo since 2004 but 

noted that there was no written contract in effect during the winter of 2007–08. According to 

Vaterlaus, at the time of Gagnon’s accident “Western was performing its snow removal services 

in accordance with the past practices and understandings previously developed with Wells 

Fargo.” These included removing snow accumulations of two or more inches and applying ice 

melt to sidewalks and around ATMs. However, Vaterlaus specifically denied being either 

authorized or requested to place ice melt or sand on any Wells Fargo parking lot during the 

winter of 2007–08. In accordance with the oral agreement, “Western plowed snow from the 

sidewalks and parking lot and applied ice melt to the sidewalks of the Hayden branch on 

December 2 and 3, 2007. . . . Western’s next record of service at the Hayden branch parking lot 

indicates snow removal and application of ice melt to the sidewalks on December 8, 2007.”

Gagnon submitted the Affidavit of Heather Gable in opposition to Western’s motion. 

Gable averred that she is a property manager for Wells Fargo’s Corporate Properties Division, 

and that the Hayden branch is under her management. She testified that, although the Written 

Contract had expired, “Wells Fargo and Western Building Maintenance have agreed to a 

continuation of their relationship on the same terms as set forth in the written agreement,” and 

that this understanding “has been confirmed verbally with Western Building Maintenance on a 

yearly basis.” In its brief in this appeal, Western concedes that the oral contract in effect at the 

time Gagnon was injured incorporated the terms of the Written Contract.

The district court granted Western’s motion for summary judgment, holding that “[t]he 

plain language of the 2004 Agreement shows that the Defendant did not undertake an absolute 

duty to remove snow and distribute ice melt in the Wells Fargo Bank parking lot on days where 

less than two (2) inches to [sic] snow falls.” The district court then entered a final judgment 

from which Gagnon timely appealed.

III. ISSUE ON APPEAL

Is there a genuine issue of material fact regarding whether Western owed a duty to Gagnon to 

spread ice melt on the parking lot?
4

IV. STANDARD OF REVIEW

“This Court exercises free review over appeals from a district court’s grant of summary 

judgment, applying the same standard the district court used in ruling on the motion.” Boise 

Mode, LLC v. Donahoe Pace & Partners Ltd., 154 Idaho 99, 103, 294 P.3d 1111, 1115 (2013). 

Therefore, we freely review whether “the pleadings, depositions, and admissions on file, together 

with the affidavits, if any, show that there is no genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law.” I.R.C.P. 56(c).

The party initially bringing the motion has the burden to prove that no genuine

issues of material fact exist and that it is entitled to judgment as a matter of law. 

After the moving party meets this burden, the burden shifts to the nonmoving 

party to show the existence of a genuine issue of material fact. This Court will 

construe the record in the light most favorable to the party opposing the motion, 

drawing all reasonable inferences in that party’s favor. However, the adverse 

party may not rest upon mere allegations in the pleadings, but must set forth by 

affidavit specific facts showing there is a genuine issue for trial.

Boise Mode, LLC v. Donahoe Pace & Partners Ltd., 154 Idaho 99, 103–04, 294 P.3d 1111, 

1115–16 (2013) (citations and quotation marks omitted). “Circumstantial evidence can create a 

genuine issue of material fact. . . . However, the non-moving party may not rest on a mere 

scintilla of evidence.” ParkWest Homes, LLC v. Barnson, No. 38919, 2013 WL 1667566, at *3, 

154 Idaho 678, 682, 302 P.3d 18, 22 (2013).

V. ANALYSIS

No genuine issue of material fact remains regarding whether Western owed a duty to 

spread ice melt on the parking lot.

We begin our analysis of this case with a description of the general principles of the law 

of negligence, and particularly the concept of duty.

In order to establish a cause of action for negligence, a plaintiff must establish: 

“(1) a duty, recognized by law, requiring the defendant to conform to a certain 

standard of conduct; (2) a breach of duty; (3) a causal connection between the 

defendant’s conduct and the resulting injury; and (4) actual loss or damage.” 

Turpen v. Granieri, 133 Idaho 244, 247, 985 P.2d 669, 672 (1999). Whether a 

duty exists is a question of law, “over which this Court exercises free review.” Id.

Generally speaking, “[e]very person, in the conduct of his business, has a duty to 

exercise ordinary care to prevent unreasonable, foreseeable risks of harm to 

others.” Id.

Rountree v. Boise Baseball, LLC, 154 Idaho 167, 171, 296 P.3d 373, 377 (2013). 

Gagnon contends that the Written Contract created a duty requiring Western to inspect 

for, and clear, ice from the parking lot in a timely manner and that Western negligently failed to 
5

do so. However, the Written Contract could not create a tort duty on the part of Western. As we 

have stated in Baccus v. Ameripride Servs., Inc., 145 Idaho 346, 179 P.3d 309 (2008):

Ordinarily, breach of contract is not a tort, although a contract may create the 

circumstances for the commission of a tort. But, the mere negligent breach or 

non-performance of a contract will not sustain an action sounding in tort, in the 

absence of a liability imposed by law independent of that arising out of the 

contract itself. Instead, active negligence or misfeasance is necessary to support 

an action in tort based on a breach of contract; mere nonfeasance, even if it 

amounts to a willful neglect to perform the contract, is not sufficient.

Id. at 350, 179 P.3d at 313 (internal citations and quotations omitted). Therefore, the Written 

Contract did not create a tort duty requiring Western to do anything, and the alleged breach of 

that contract could not create tort liability.

The source of a tort duty simply does not arise from the duty of contractual performance.

A duty can arise, however, from undertaking a duty which induces reliance. In Baccus,

Ameripride had agreed pursuant to a contract with the employer of Baccus to place mats in the 

entry to certain buildings as a safety measure to prevent slipping due to bad weather. It failed to 

do so on December 17. The Court simply held that Baccus’s reliance on Ameripride’s previous 

acts of placing the mats was the source of the duty, not the contractual obligation to do so. In 

other words, the existence of a contractual duty is irrelevant to the legal analysis. The contract 

simply creates the circumstances for the commission of a tort by failing to perform a duty that 

induced reliance by others on its performance. In other words, reliance on the duty is a required 

element of a claim by third parties. Here, it is undisputed that Western did not spread ice melt on 

the Hayden branch parking lot during the winter of 2007-2008 and therefore it is inconceivable 

that Gagnon could have relied upon it to do so.

VI. CONCLUSION

Gagnon has failed to come forward with evidence refuting Western’s assertion that it was 

neither authorized nor requested to spread ice melt on the Hayden Branch parking lot during the 

winter of 2007–08 or that she had any reason to rely on it doing so. Therefore, there is no triable 

issue, and the district court properly granted summary judgment in Western’s favor. No 

attorney’s fees were requested. Costs on appeal are awarded to Western.

Chief Justice BURDICK and Justices EISMANN, J. JONES and HORTON CONCUR.