                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 44091


BRYAN N. HENRIE,                      )
                                      )              Boise, April 2017 Term
      Plaintiff-Appellant,            )
                                      )              2017 Opinion No. 56
v.                                    )
                                      )              Filed: May 31, 2017
THE      CORPORATION        OF    THE )
PRESIDENT OF THE CHURCH OF )                         Stephen W. Kenyon, Clerk
JESUS CHRIST OF LATTER-DAY )
SAINTS,                               )
                                      )
      Defendant-Respondent.
_____________________________________

       Appeal from the District Court of the Sixth Judicial District of the
       State of Idaho, Bannock County. Hon. Stephen S. Dunn, District Judge.

       Judgment is affirmed. No attorney’s fees are awarded on
       appeal. Costs on appeal are awarded to Respondent.

       Cooper & Larsen, Chartered, Pocatello, attorneys for appellant.
       Javier Gabiola argued.

       Moffatt Thomas, Pocatello, attorneys for respondent. Bradley J.
       Williams argued.
                             ___________________________

JONES, Justice
                                    I. NATURE OF THE CASE
       This case arises out of injuries suffered by Bryan N. Henrie (“Henrie”) while he was
participating in a community service event organized by the Mormon Helping Hands (“Helping
Hands”), a priesthood-directed program run by the Church of Jesus Christ of Latter-day Saints
(the “Church”). Henrie asserts on appeal that the district court erred when it dismissed his tort
claim on summary judgment. We affirm the judgment.

                        II. FACTUAL AND PROCEDURAL BACKGROUND
       In June of 2012, a fire broke out in the Charlotte Creek area of Pocatello. Once the fire
had been put out, Helping Hands conducted a wide-scale effort to clean up the burned area.
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Henrie was a member of the Paradise Ward of the Church, where he was the president of the
Elder’s Quorum. In late June of 2012, Henrie was contacted by Bishop Fred Zundel and
instructed to mobilize the members of the Quorum to aid in the cleanup effort. Henrie
characterizes the Bishop’s instruction as “an order,” which he felt “compelled” to follow due to
his status in the Church.
        On July 14, 2012, Henrie traveled to Century High School, where Helping Hands had set
up a staging area for volunteers to sign in to participate in the cleanup. When he arrived at the
high school a person 1, whom Henrie took to be a representative of the Church, handed him a
smock with the Helping Hands logo on it. Henrie testified as follows:

        Q: Okay. And did she say anything about it?
        A: Whoever it was–I remember getting it. It was handed to me and I remember
        saying this is really big. And they said, well it’s all we’ve got left, because
        apparently, they’d been picked clean–well, not–I don’t know how clean because,
        you know, I can’t vouch for how many were left. But at that point they said this is
        all we’ve got left.
        Q: Okay. And it looked big to you, too big for you, is that what you’re saying?
        A: It looked really big. And, I mean, I don’t know what their standard was, but, I
        mean, to me it seemed–it could have been a lot tighter fit–like a lot tighter fitting.
        ...
        Q: And was there any discussion about whether you had to wear it or should wear
        it or–
        A: Yes, there was.
        Q: What was that discussion?
        A: I was told that I had to wear it to participate in the cleanup. It was required.
        Henrie was assigned to work with a crew on a property off Gibson Jack road. He spent
the day felling burned trees and rolling or throwing the wood down an embankment on the
property to be hauled away later. Later that day, Henrie was attempting to throw a tree stump
down the embankment when it caught on his smock. He was pulled down the embankment by
the stump, severely injuring his right knee in the process.
        On July 11, 2014, Henrie filed a complaint against the Church. Therein, Henrie asserted
that “[a]t the very least, Defendant had a duty not to supply Plaintiff with gear or clothing that

1
 In his testimony, Henrie admitted that he does not remember who this person was, or even if the person who gave
him the smock was male or female.
                                                       2
would put him or his bodily safety in danger or ultimately harm him . . . Defendant breached this
duty of care.” He further asserted that “Defendant owed a duty to Plaintiff to use reasonable care
in nominating, training, and supervising any and all of the clean-up organizers and volunteers,
including those who spoke with and directed Plaintiff.”
       On December 16, 2015, the Church filed a motion in limine to exclude evidence. Therein,
the Church requested that the district court exclude any testimony given by Henrie with respect
to statements made by the volunteer who gave him his smock. The Church argued that such
statements were offered “to prove that the Church ‘mandated’ that everyone wear a smock in
order to participate.” Accordingly, the Church concluded, such statements were offered to prove
the truth of the matter asserted and therefore were inadmissible hearsay. The Church
preemptively argued that those statements do not qualify as an admission of a party opponent
because “[w]hen the declarant is unknown or unidentifiable a plaintiff cannot show that the
declarant was an agent of the principal.”
       Concurrently with its motion in limine, the Church filed a motion for summary judgment
on all of Henrie’s claims. Therein, the Church asserted that: (1) “the Church had no duty to
foresee or predict the accident . . .       because [it was] a ‘freak’ accident[] that [was] not
‘reasonably’ foreseeable and [didn’t] impose unreasonable risks of harm”; and (2) “Henrie
cannot adduce admissible evidence to support his proximate cause elements of his claims . . .
Henrie cannot adduce any admissible evidence that the Church forced him to wear the smock.”
       On March 16, 2016, the district court entered a memorandum decision and order, in
which it found that: (1) “[t]here is no question the alleged statements made by the unknown and
unidentifiable volunteer are hearsay . . . [and] the record is utterly devoid of any evidence of an
agency relationship between the unidentifiable person handing out the smocks and the Church
[so the statements do not qualify as admissions of a party opponent]”; (2) “[u]nder the facts
presented here, there is nothing to indicate the Church could foresee or reasonably be expected to
anticipate the type of harm that occurred here . . . [s]o this Court cannot find a basis for imposing
a duty on Defendant in this instance”; (3) “there is no special duty between the Church and Mr.
Henrie”; and (4) “the Plaintiff cannot demonstrate the existence of a genuine issue of material
fact regarding the cause of his injuries because he has failed to offer admissible evidence to
support his theory of causation.”


                                                  3
       Concurrent with the order the district court entered summary judgment dismissing the
case. Henrie appeals.

                                      III. ISSUES ON APPEAL
1.     Did the district court err in determining that no issue of material fact existed as to
       whether the Church had a special relationship with Henrie such that it had an affirmative
       duty to control or protect him?
2.     Did the district court err in determining that no issue of material fact existed as to
       whether the Church’s duty of care extended to the causes of Henrie’s injury?
3.     Did the district court err in granting the Church’s motion in limine with respect to the
       statements of the unidentified volunteer?
4.     Did the district court err in determining that no issue of material fact existed as to
       Henrie’s theory of proximate cause?
5.     Is either party entitled to attorney’s fees on appeal?
                                   IV. STANDARD OF REVIEW
               On appeal from the grant of a motion for summary judgment, this Court
       utilizes the same standard of review used by the district court originally ruling on
       the motion. Summary judgment is proper “if 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). When considering whether the
       evidence in the record shows that there is no genuine issue of material fact, the
       trial court must liberally construe the facts, and draw all reasonable inferences, in
       favor of the nonmoving party.
Humphries v. Becker, 159 Idaho 728, 735, 366 P.3d 1088, 1095 (2016) (quoting Golub v. Kirk–
Hughes Dev., LLC, 158 Idaho 73, 75–76, 343 P.3d 1080, 1082–83 (2015)).

              When reviewing the trial court’s evidentiary rulings, this Court applies an
       abuse of discretion standard. Dulaney v. St. Alphonsus Reg’l Med. Ctr., 137 Idaho
       160, 163–64, 45 P.3d 816, 819–20 (2002). “To determine whether a trial court has
       abused its discretion, this Court considers whether it correctly perceived the issue
       as discretionary, whether it acted within the boundaries of its discretion and
       consistently with applicable legal standards, and whether it reached its decision by
       an exercise of reason.” Perry v. Magic Valley Reg’l Med. Ctr., 134 Idaho 46, 51,
       995 P.2d 816, 821 (2000).
State v. Jones, 160 Idaho 449, 450, 375 P.3d 279, 280 (2016).

                                           V. ANALYSIS
A.     The district court did not err when it found that the Church did not have a special
       relationship with Henrie such that it had an affirmative duty to control or protect
       him.
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         Under Idaho law, “one owes the duty to every person in our society to use reasonable
care to avoid injury to the other person in any situation in which it could be reasonably
anticipated or foreseen that a failure to use such care might result in such injury.” Doe v.
Garcia, 131 Idaho 578, 581, 961 P.2d 1181, 1184 (1998) (quoting Alegria v. Payonk, 101 Idaho
617, 619, 619 P.2d 135, 137 (1980)) (emphasis in original). Conversely, “[t]here is ordinarily no
affirmative duty to act to assist or protect another absent unusual circumstances, which justify
imposing such an affirmative responsibility. An affirmative duty to aid or protect arises only
when a special relationship exists between the parties.” Coghlan v. Beta Theta Pi Fraternity, 133
Idaho 388, 399, 987 P.2d 300, 311 (1999).

         A special relationship can have two separate but related aspects. The Restatement
         (Second) of Torts states that “(a) a special relation exists between the actor and a
         third person which imposes a duty upon the actor to control the third person's
         conduct, or (b) a special relation exists between the actor and the other which
         gives the other a right to protection.” Turpen v. Granieri, 133 Idaho 244, 248, 985
         P.2d 669, 673 (1999) (quoting RESTATEMENT (SECOND) TORTS § 315
         (1966)). Thus, having control over someone or a duty to protect that person is
         indicative of a special relationship.
Beers v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, 155 Idaho 680,
686, 316 P.3d 93, 96 (2013).

                 This Court has listed examples of individuals having a duty to control
         another as “a parent’s duty to control his child, an employer’s duty to control an
         employee while at work, or a law enforcement officer’s duty to control a
         dangerous prisoner.” Turpen, 133 Idaho at 248, 985 P.2d at 673. “The common
         element in each of these is knowledge of an unreasonable risk of harm and the
         right and ability to control the third party’s conduct.” Id. Thus, a special
         relationship imposing a duty to control another’s conduct requires a foreseeable
         risk and the right and ability to control that person’s conduct.
Id. 2
                 We only engage in a balancing of the harm in those rare situations when
         we are called upon to extend a duty beyond the scope previously imposed, or
         when a duty has not previously been recognized. . . . Determining whether a duty
         will arise in a particular instance involves a consideration of policy and the
         weighing of several factors which include:


2
  Other “[e]xamples of the types of ‘special relationships’ which give rise to a duty to aid or protect include duties
owed by: 1) a common carrier to its passengers; 2) an innkeeper to his guests; 3) a possessor of land who holds his
land open to members of the public who enter upon the land in response to his invitation; and 4) one who takes
custody of another.” Coghlan, 133 at 401, 133 Idaho at 313.
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            [T]he foreseeability of harm to the plaintiff, the degree of certainty that
            the plaintiff suffered injury, the closeness of the connection between the
            defendant’s conduct and the injury suffered, the moral blame attached to
            the defendant’s conduct, the policy of preventing future harm, the extent
            of the burden to the defendant and consequences to the community of
            imposing a duty to exercise care with resulting liability for breach, and
            the availability, cost, and prevalence of insurance for the risk involved
            (citations omitted).
Rife v. Long, 127 Idaho 841, 846, 908 P.2d 143, 149 (1995) (quoting Isaacs v. Huntington Mem’l
Hosp., 695 P.2d 653, 658 (Cal. 1985)).
       Accordingly, in Coghlan, when presented with a tort action filed by a university student
who was injured when she fell, while intoxicated, from the third-story fire escape of her sorority
house, this Court held that a neither a university nor a sorority have “the kind of special
relationship creating a duty to aid or protect adult students from the risks associated with the
student’s own voluntary intoxication.” Coghlan, 133 Idaho at 400, 987 P.2d at 312. This Court
reasoned that “college students today are no longer minors; they are now regarded as adults in
almost every phase of community life. . . . [T]he modern American college is not an insurer of
the safety of its students” Id. at 399–400, 987 P.2d at 311–12.
        In Beers, this Court held that neither the Corporation of the President of the Church of
Jesus Christ of Latter-Day Saints (the “COP”), nor the Autumn Faire Ward of the Church of
Jesus Christ of the Latter-day Saints (the “Ward”), had a special relationship to a minor who was
injured jumping off a bridge into a river while attending a campout organized by the Ward. 155
Idaho at 687–88, 316 P.3d at 99–100. This Court reasoned that “there is no evidence that the
Ward had any right or ability to control [the injured minor’s] actions. The Ward did not have the
ability to compel [the injured minor’s] attendance at the campout or the Ward-planned
activities.” Id. at 687, 316 P.3d at 99. The Court also determined that it was not in the public
interest to recognize a special relationship using the framework described in Rife:

       We are unable to ascribe moral blame to the COP for this incident. We can,
       however, ascertain negative consequences to the community that would result
       from imposing a duty and resulting liability upon religious organizations to
       members of their faith. The result would be a powerful disincentive to organized
       fellowship activities.
Id. at 687–88, 316 P.3d at 99–100.



                                                 6
       Henrie asserts on appeal that the district court’s finding that no special relationship
existed was error. He argues that a special relationship existed between himself and the Church
arising out of the alleged fact that he “did not have the discretion to ignore” the “assignment”
from Bishop Zundel to participate in the community service project. He further asserts that “the
Church had the right to control Mr. Henrie’s conduct” as evidenced by the fact that “Mr. Henrie
[] never said no to his bishop’s requests.” Finally, he argues (albeit without actually identifying
any legal issues) that “all of these issues were for the jury to decide, not the District Court.” We
find that these arguments are without merit.
       The district court did not err in determining that there was no special relationship
between Henrie and the Church sufficient to create an affirmative legal duty for the Church to
control Henrie’s actions or to protect him from harm. Despite Henrie’s assertions to the contrary,
the facts alleged in this case indicate that Henrie’s conduct was at all times completely voluntary
and that he could have chosen not to participate in the cleanup project. This Court takes as true,
the fact that Henrie felt obligated to participate in the cleanup out of a sense of duty to the
Church. However, Henrie’s subjective sense of obligation is fundamentally different from the
type of control that gives rise to a special relationship. A parent has a special relationship with a
child because that parent has a legal right and duty to control that child’s actions. The same is
true of a police officer with respect to a criminal in custody, and, to a more limited extent, an
employer to an employee. Conversely, the Church had no right to control Henrie’s actions here.
As in Beers, the Church organized an activity for which participation was voluntary. A member
of the Church voluntarily participated and was injured. The fact that he felt duty bound to
participate does not mean that his participation was not voluntary or that the Church had a right
to control him. It follows that no special relationship existed.
       Furthermore, public policy factors weigh against this Court creating an affirmative duty
for the Church to control and protect Henrie in this case. The injury here, as explained below,
was not foreseeable. There is no moral blame that can be ascribed to the Church for organizing
an opportunity for its members to provide a much needed community service and encouraging
them to participate. Finally, there could be severe costs to the community if such a duty were
recognized because it would have the effect of chilling the willingness and ability of Helping
Hands and other charitable organizations to provide beneficial community services.


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B.     The district court did not err in finding that no issue of fact existed as to whether or
       not the Church had a general duty to prevent Henrie’s injury.
               A cause of action for common law negligence in Idaho has four
       elements: “(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.” Nation v. State Dep’t of Corr., 144 Idaho 177, 189, 158 P.3d 953, 965
       (2007) (quoting O’Guin v. Bingham County, 142 Idaho 49, 52, 122 P.3d 308, 311
       (2005)).
Stoddart v. Pocatello School Dist. #25, 149 Idaho 679, 683–84, 239 P.3d 784, 788 (2010).

               In general, it is held that one owes the duty to every person in our society
       to use reasonable care to avoid injury to the other person in any situation in which
       it could be reasonably anticipated or foreseen that a failure to use such care might
       result in such injury. . . .
            Every person has a general duty to use due or ordinary care not to injure
            others, to avoid injury to others by any agency set in operation by him,
            and to do his work, render services or use his property as to avoid such
            injury.
       In determining whether such duty has been breached by the allegedly negligent
       party, his conduct is measured against that of an ordinarily prudent person acting
       under all the circumstances and conditions then existing.
Alegria v. Payonk, 101 Idaho 617, 619, 619 P.2d 135, 137 (1980) (internal quotations and
citations omitted).

               Foreseeability is a flexible concept which varies with the circumstances of
       each case. Where the degree of result or harm is great, but preventing it is not
       difficult, a relatively low degree of foreseeability is required. Conversely, where
       the threatened injury is minor but the burden of preventing such injury is high, a
       higher degree of foreseeability may be required. Thus, foreseeability is not to be
       measured by just what is more probable than not, but also includes whatever
       result is likely enough in the setting of modern life that a reasonably prudent
       person would take such into account in guiding reasonable conduct.
Sharp v. W.H. Moore, Inc., 118 Idaho 297, 300–01, 796 P.2d 506, 509–10 (1990) (citations
omitted).
       “The question whether a risk of harm is foreseeable is generally a question for the trier of
fact.” Caldwell v. Idaho Youth Ranch, Inc., 132 Idaho 120, 125, 968 P.2d 215, 220 (1998) (citing
Orthman v. Idaho Power Co., 130 Idaho 597, 601, 944 P.2d 1360, 1364 (1997)). However,
“when the undisputed facts can lead to only one reasonable conclusion, this court may rule upon
the issue of foreseeability as a matter of law.” Mico Mobile Sales & Leasing, Inc. v. Skyline
                                                8
Corp., 97 Idaho 408, 412–13, 546 P.2d 54, 58–59 (1975) (citing Munson v. State, Dep’t of
Highways, 96 Idaho 529, 531 P.2d 1174 (1975)).
       Accordingly, this Court has described its task when confronted with a foreseeability
determination on summary judgment as follows:

              In ruling on the correctness of the summary judgment entered in this case,
       we must determine whether (appellants’) injury and the manner of its occurrence
       (were) so highly unusual that we can say, as a matter of law that a reasonable
       man, making an inventory of the possibilities of harm which his conduct might
       produce, would not have reasonably expected the injury to occur.
Alegria, 101 Idaho at 620, 619 P.2d at 138 (internal quotation and citation omitted).

       Henrie asserts that even if he did not have a special relationship with the Church, the
Church still owed him a general duty not to act in a way that would create an unreasonable,
foreseeable risk of harm. He argues that the Church violated this duty. We disagree.
       In Alegria, this Court definitively established that a party owes a duty to every person to
use reasonable care to avoid causing foreseeable injuries. 101 Idaho at 619, 619 P.2d at 137. This
duty does not, by its own language, extend to injuries that cannot be reasonably anticipated or
foreseen. Id. Accordingly, whether a party owed a general duty of care with respect to a
particular injury will depend on whether or not that injury was a foreseeable result of the party’s
actions. Id. A foreseeability determination can be made on summary judgment where the injury
caused is “so highly unusual that we can say, as a matter of law that a reasonable man, making
an inventory of the possibilities of harm which his conduct might produce, would not have
reasonably expected the injury to occur.” Id. at 620, 619 P.2d at 138.
       We agree with the district court’s conclusion that a severe knee injury is a highly unusual
consequence of the actions taken by the Church’s alleged agent (i.e. providing an oversize smock
to a volunteer in a post-fire cleanup community service project and instructing that volunteer to
wear the smock). A reasonable person making an inventory of possible harms would have
difficulty imagining the circumstances by which Henrie’s knee injury came to pass. Further,
while it is not dispositive that Helping Hands’ long history of providing smocks has not resulted
in any similar injuries, it does support the conclusion that such an injury is not likely to occur.
       On appeal, Henrie asserts that the district court erred in assessing foreseeability because it
assessed the specific mechanism of injury rather than the general risk. He argues that “it is the
inherent risk of injury of working on a hillside, throwing large logs down a hill, and the risk of
                                                  9
harm associated with that . . . that is relevant.” Henrie is incorrect on this point. While it is the
general risk of injury, rather than the specific injury, which must be analyzed, the general risk of
injury in this case is not the risk associated with throwing logs down a hill. Throwing logs down
a hill was Henrie’s voluntary action and was not an action on the part of the Church. The
Church’s action, which is the basis of Henrie’s negligence theory, was providing Henrie an
oversize smock and telling him that he had to wear it (with the knowledge that he would be
participating in the cleanup). It was making Henrie wear the smock, not the inherent risk
involved in the cleanup project, which forms the foundation of the negligence claim here; and, it
is that action from which the injury must have been foreseeable.
       Henrie’s knee injury is not a foreseeable result of making Henrie wear a smock, even an
oversized one for a cleanup project. Accordingly, we affirm the district court’s conclusion on
summary judgment that no duty existed based on a lack of foreseeability.

C.     This Court need not address whether or not the district court abused its discretion
       when it found that Henrie’s testimony regarding the Church’s alleged agent was
       hearsay.
       We need not reach this issue because the district court did not err when it found on
summary judgment that no duty existed which could serve as the basis of liability.

D.     This Court need not address whether or not the district court erred when it found
       on summary judgment that Henrie could not prove that the Church’s actions were
       the proximate cause of his injuries.
       We need not reach this issue because the district court did not err when it found on
summary judgment that no duty existed which could serve as the basis of liability.

E.     Neither party is entitled to attorney’s fees on appeal.
       Neither party is entitled to receive attorney’s fees on appeal. This action was not pursued
or defended frivolously or without foundation.

                                         VI. CONCLUSION
       We affirm the district court’s grant of summary judgment to the Church. No attorney’s
fees are awarded on appeal. Costs to the Church.

       Chief Justice BURDICK, Justices EISMANN, HORTON and Justice pro tem WALTERS
CONCUR.


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