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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

Spears v. Antelope Mountain Resort, LLC

Idaho Supreme Court

• Citations: None known

• Docket Number: 52406

• Opinion

• Authorities (36)

• Cited By (0)

• Summaries (0)

• Similar Cases (24.4K)

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Combined Opinion

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 52406

TAMBER SPEARS, individually, and in her )
capacity as Administrator of the ESTATE OF )
DAVID M. FLAGET; SHANNON FLAGET )
HALL, an individual; CHRISTINE WAGNER, )
an individual; BRIAN RANDALL, an )
individual; PATRICK LEACH, an individual; )
OLY MORRIS, an individual; BRITTNEY )
CORNWELL, an individual; KENDY )
FREEMAN, an individual; and COLLEEN )
CARR, an individual, )
)
Plaintiffs-Appellants, )
) Boise, January 2026 Term
v. )
) Opinion Filed: February 27, 2026
ANTELOPE MOUNTAIN RESORT, LLC, an )
Idaho limited liability company; JAMES D. ) Melanie Gagnepain, Clerk
RUSSELL, an individual; MARY )
KATHERINE RUSSELL, an individual, )
)
Defendants-Respondents, )
)
and, )
)
ELIZABETH RUSSELL, an individual; )
ROBERT DAVID RUSSELL and LIANN )
RUSSELL, husband and wife, )
)
Defendants. )
_______________________________________ )

Appeal from the District Court of the First Judicial District of the State of Idaho,
Bonner County. Lamont Berecz, District Judge.

The decision of the district court is affirmed.

Riverside NW Law Group, PLLC, Spokane, Washington, for Appellants. Max K.
Archer, argued.

Paine Hamblen, LLP, Spokane, Washington, for Respondent James D. Russell.

1
Anderson Julian & Hull, LLP, Boise, for Respondents Antelope Mountain Resort,
LLC, Mary Katherine Russell, and Elizabeth Russell. Robert A. Mills, argued.

Cooper & Larsen, Chartered, Pocatello, for Respondents Lianna Russell and Robert
David Russell.

---

BRODY, Justice.
This appeal addresses whether Mary Katherine Russell and her limited liability company,
Antelope Mountain Resort, LLC (“AMR”) (collectively, “Mary Russell” or “Mary”), may be held
civilly liable for the criminal act of her grandson, James D. Russell. Mary Russell permitted James
Russell to reside on property she owns in Clark Fork, Idaho. In September 2021, James Russell—
apparently suffering from severe mental illness—perceived Mary Russell’s groundskeeper, David
Flaget, to be a trespasser. James Russell beat Flaget to death and consumed portions of Flaget’s
remains. James pleaded guilty to second-degree murder and was sentenced to life in prison.
Flaget’s heirs brought this action against Mary Russell, seeking to hold her liable for
Flaget’s death. The claims at issue on appeal are: (1) wrongful death; (2) intentional infliction of
emotional distress (“IIED”); and (3) negligent infliction of emotional distress (“NIED”). The
district court granted summary judgment in Mary Russell’s favor, concluding that Mary Russell
did not owe a duty to aid or protect Flaget from James Russell under either a special relationship
theory or an assumed duty theory. The district court also determined that the Flaget heirs’ claims
for IIED failed as a matter of law because they failed to allege any tortious conduct directed at the
heirs themselves and that their NIED claims failed because Mary Russell owed no duty to the
heirs. For the reasons explained below, we affirm the district court’s decision.
I. FACTUAL AND PROCEDURAL HISTORY
Prior to the events at issue in this case, the record indicates that James Russell had been
diagnosed with bipolar schizoaffective disorder. The complaint alleges that “at some point in his
late-20s / early-30s, James suffered a traumatic brain injury . . . during a martial arts competition,”
which “left him with long-term brain damage.” The complaint further alleges that James was
“prescribed medication for acute psychosis, schizophrenia, and bipolar disorder” in 2017. And it
notes at least three prior instances in which James acted violently: (1) an attack on two other
groundskeepers on Russell family property in Montana in November 2020; (2) an attack on his
father and four responding police officers in December 2020; and (3) a brutal attack on a cellmate

2
in jail shortly thereafter. After the incident in Montana, James Russell moved to Mary Russell’s
fifty-seven-acre property in Clark Fork, Idaho, during the summer of 2021. The property is owned
in part by Mary Russell and in part by AMR. James resided in a “Garage Loft Apartment” on the
property and “c[a]me and [went] as he pleased.”
Mary Russell periodically hired Flaget to perform maintenance work on the Clark Fork
property and to serve generally as its caretaker. Flaget set his own hours, and Mary Russell did not
supervise how he completed his groundskeeping duties. One morning in September 2021, Flaget
was performing maintenance work on the property when James Russell perceived him to be a
trespasser. James murdered Flaget and “mutilated and ate [his] corpse.” Elizabeth Russell, James’
aunt who was also living on the Clark Fork property, discovered the remains of Flaget’s body
stuffed inside Flaget’s truck. James was charged with first-degree murder and cannibalism. See
I.C. §§ 18-4003(d), 18-5003(1). James later pleaded guilty to second-degree murder and was
sentenced to life in prison.
Flaget’s surviving family members brought this action against Defendants James Russell,
Mary Russell, Elizabeth Russell, Robert David Russell (James’ father), and Liann Russell (James’
mother) (collectively, “the Russell defendants”). The Flaget heirs brought six claims against the
Russell defendants: (1) wrongful death—negligence, recklessness, wanton, and willful; (2)
wrongful death—premises liability; (3) IIED; (4) NIED; (5) mishandling of a body; and (6) loss
of society and companionship. The district court dismissed the Flaget heirs’ claims against Robert
and Liann for lack of personal jurisdiction.
Mary and Elizabeth Russell moved for summary judgment, arguing that they were not
“liable for their adult grandson’s / nephew’s wrongful acts against David Flaget” and, therefore,
they were entitled to judgment as a matter of law on all the Flaget heirs’ claims. The Flaget heirs
offered two declarations in opposition to summary judgment. The first of these came from Oly
Morris, Flaget’s son. Morris’ declaration recounted two instances in which Flaget reported
troubling interactions he had with James on the Clark Fork property. Morris also recalled Mary
offering him money to avoid a lawsuit in the aftermath of Flaget’s death. The second declaration
consisted of statements from Mary Russell’s former housekeeper, Jacqueline Smith. Smith’s
declaration recounted two interactions with James Russell in which he “snapped” at her and acted
aggressively. She also relayed a conversation she had with Flaget about James Russell’s aggressive
behavior.

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Mary and Elizabeth Russell moved to strike portions of the declarations as inadmissible
under Idaho Rule of Civil Procedure 56(c)(4). The district court sustained some of the objections
and overruled others. Ultimately, the district court granted Mary and Elizabeth Russell’s motion
for summary judgment, ruling that they owed no duty to protect Flaget from James Russell. The
Flaget heirs argued that such a duty arose from a “special relationship” between Mary and Flaget
based on his employment as the Clark Fork property’s groundskeeper. The district court rejected
this argument, reasoning that Mary, as Flaget’s employer, did not exercise “full custody and
control” over him such that a duty to keep him safe would arise.
In the alternative, the Flaget heirs argued that Mary “assumed an affirmative duty” to
protect Flaget “by ‘attempting to control [James] and mediate his disputes with . . . Flaget.’”
Specifically, the Flaget heirs point to two instances in which Mary Russell “intervened in . . .
verbal conflicts between . . . Flaget and James Russell over the summer.” They framed these
interactions as a voluntary undertaking giving rise to a legal duty on Mary Russell’s part to protect
Flaget from James Russell. The district court rejected this theory of duty as well, ruling that the
record did not demonstrate Mary Russell undertook to physically protect Flaget from James
Russell:
There remains no fact in the record that . . . Flaget relied on Mary Russell for
ongoing physical protection from harm. Likewise, as discussed above, there is no
foreseeability that Mary’s failure to keep protecting Mr. Flaget—by no longer
interceding in his verbal disputes with James Russell—would lead to violence or to
the murder of Mr. Flaget.
With respect to the Flaget heirs’ IIED claim, the district court concluded they failed to
show “extreme and outrageous” conduct by Mary Russell—conduct “that the average person
would deem atrocious, or conduct beyond all possible bounds of human decency.” The court also
ruled that the Flaget heirs had not demonstrated Mary Russell intentionally directed tortious
conduct toward them personally.
The district court dismissed the Flaget heirs’ NIED claim for similar reasons. Because the
Flaget heirs failed to demonstrate that Mary Russell personally owed them a duty, they could not
establish the first element of an NIED claim. The district court also dismissed the Flaget heirs’
premises liability claim, reasoning that the underlying tortious conduct—James’ attack—involved
an activity rather than a physical condition of the property that would be cognizable under a
premises liability theory. On appeal, the Flaget heirs timely challenge the district court’s grant of
summary judgment in favor of Mary Russell on their negligence, IIED, and NIED claims. They

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do not appeal the grant of summary judgment on the premises liability claim, nor do they challenge
the dismissal of the claims against Elizabeth Russell.
II. STANDARDS OF REVIEW
Summary judgment is a procedural device designed “to expedite the determination of
actions on their merits and eliminate sham claims or defenses without the necessity of a full trial.”
10A Wright & Miller’s Federal Practice & Procedure § 2711 (4th ed. 2025). In that spirit, Rule 56
of the Idaho Rules of Civil Procedure allows for an award of summary judgment 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.” I.R.C.P. 56(a). “When considering whether the evidence shows a genuine issue
of material fact, the trial court must liberally construe the facts, and draw all reasonable inferences
in favor of the nonmoving party.” Fragnella v. Petrovich, 153 Idaho 266, 271, 281 P.3d 103, 108
(2012) (citation omitted). To establish that a genuine dispute of material fact exists, a party must
present evidence upon which a jury could reasonably rely; a “scintilla of evidence merely casting
a slight doubt of the facts” will not suffice. Id. (citation omitted).
“This Court reviews appeals from an order of summary judgment de novo, and the
‘standard of review is the same as the standard used by the trial court in ruling on a motion for
summary judgment.’” Stonebrook Constr., LLC v. Chase Home Fin., LLC, 152 Idaho 927, 929,
277 P.3d 374, 376 (2012) (quoting Curlee v. Kootenai Cnty. Fire & Rescue, 148 Idaho 391, 394,
224 P.3d 458, 461 (2008)). Accordingly, where there is no genuine dispute as to any material fact
and only questions of law remain, this Court will exercise free review over those questions. Id. at
930, 277 P.3d at 377.
III. ANALYSIS
A. The Flaget heirs waived their challenge to the district court’s evidentiary rulings on
the Morris and Smith declarations.
In opposition to Mary Russell’s motion for summary judgment, the Flaget heirs submitted
declarations from Morris and Smith in an effort to create a genuine dispute regarding Mary
Russell’s knowledge of James Russell’s propensity for violence. Mary Russell moved to strike
various portions of the declarations, and the district court granted the motion in part as to specific
statements in each declaration. On appeal, the Flaget heirs contend that the district court abused
its discretion in striking portions of the declarations. However, we decline to address the merits of
this claim because the Flaget heirs’ opening brief advances no argument on the issue.

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In an appeal before this Court, the opening brief must “contain the contentions of the
appellant with respect to the issues presented on appeal, the reasons therefor, with citations to the
authorities, statutes and parts of the transcript and record relied upon.” I.A.R. 35(a)(6). When a
party fails to heed Rule 35’s directive by presenting an issue on appeal that is unsupported by
argument or authority, this Court treats the issue as waived and declines to consider it. Anson v.
Les Bois Race Track, Inc., 130 Idaho 303, 304, 939 P.2d 1382, 1383 (1997) (quoting State v.
Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996)). The absence of either argument or
authority will suffice for this Court to treat the underlying issue as waived. Id. (quoting Zichko,
129 Idaho at 263, 923 P.2d at 970). More specifically, when an appellant asserts that the district
court abused its discretion, the appellant bears the burden of advancing a meaningful argument
applying the four Lunneborg factors this Court uses to evaluate such claims. Cummings v.
Stephens, 160 Idaho 847, 853, 380 P.3d 168, 174 (2016); Lunneborg v. My Fun Life, 163 Idaho
856, 863, 421 P.3d 187, 194 (2018).
The Flaget heirs have not carried this burden. Their briefing offers no argument that the
district court abused its discretion in striking portions of the Morris and Smith declarations.
Although they identify this issue in their opening brief—stating that one question on appeal is
“[w]hether the Bonner County District Court erred when it struck portions of the Declarations of
Jacqueline Smith and Oly Morris”—they do no more than recite Lunneborg’s abuse of discretion
test. The Flaget heirs never apply that standard to the district court’s ruling beyond the conclusory
assertion that the district court “erred by striking certain admissible portions” of the Smith and
Morris declarations.
Our adversarial system of adjudication relies on the parties to advance arguments
articulating the reasons why they are entitled to relief. Herr v. Herr, 169 Idaho 400, 404, 496 P.3d
886, 890 (2021) (quoting United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020)). Because the
Flaget heirs have provided neither authority nor substantive analysis to support their contention
that the district court abused its discretion, we decline to address the issue.
B. The district court properly granted summary judgment for Mary Russell on the
Flaget heirs’ wrongful death claim because she had no duty to aid or protect David
Flaget.
Turning to the merits, the Flaget heirs argue that the district court erred in concluding, as a
matter of law, that Mary Russell owed Flaget no duty of care under either a special-relationship or

6
assumed-duty theory. Reviewing the question of duty de novo, we find the Flaget heirs’ arguments
unpersuasive and affirm the district court’s decision.
Tortious conduct is a prerequisite to a wrongful death action. That is, the decedent’s heirs
or personal representatives must establish that the defendant owed the decedent a duty of care, and
that the defendant’s breach of that duty proximately caused the decedent’s death. See Castorena
v. Gen. Elec., 149 Idaho 609, 619, 238 P.3d 209, 219 (2010); see also I.C. § 5-311(1) (“When the
death of a person is caused by the wrongful act or neglect of another, his or her heirs or personal
representatives on their behalf may maintain an action for damages against the person causing the
death . . . .”). The focus of this appeal is on the first element of negligence: duty.
The Flaget heirs advance two theories under which Mary Russell owed Flaget a duty of
care. First, they argue that Mary Russell’s employment of Flaget created a special relationship
imposing on her a duty to protect Flaget from James Russell. Second, they contend that Mary
Russell voluntarily assumed this duty through her efforts to “control [James] and mediate his
disputes with . . . Flaget.” The district court rejected both theories, concluding neither established
a duty of care. We agree. Neither Mary Russell’s employment of Flaget nor her attempts to mediate
the ongoing interpersonal conflict between Flaget and James Russell suffice to support a special-
relationship or assumed-duty theory.
1. The district court correctly rejected the Flaget heirs’ special relationship theory.
The Flaget heirs argue that the district court erred in concluding Flaget’s employment
relationship with Mary Russell did not give rise to a “special relationship” imposing a duty on her
to protect Flaget from James Russell. They fault the district court for ignoring: (1) “facts in the
record that the [Clark Fork property] was in an isolated location,” (2) that Flaget “relied upon Mary
Russell for all onsite equipment,” and (3) “Mary[’s] prior knowledge that [James] was a dangerous
individual who had already attacked groundskeepers in the past.”
Mary Russell disagrees. Relying on Schriver v. Raptosh, 174 Idaho 498, 509, 557 P.3d 398,
409 (2024), Mary Russell counters that the district court’s conclusion was entirely consonant with
Idaho tort law because there is no evidence tending to show that she exercised “custody and
control” over Flaget, the “hallmarks” of a special relationship. We agree that the record does not
demonstrate the hallmarks of a special relationship.
As a general rule, Idaho law does not impose an affirmative duty to “assist or protect
another absent unusual circumstances.” Coghlan v. Beta Theta Pi Fraternity, 133 Idaho 388, 399,

7
987 P.2d 300, 311 (1999) (citing Restatement (Second) of Torts § 314A (1965)). The existence of
a “special relationship” may constitute such an unusual circumstance, giving rise to a duty to
protect. Id. For tort-law purposes, Idaho recognizes two categories of special relationships. The
first “exists between the actor and a third person which imposes a duty upon the actor to control
the third person’s conduct[.]” Turpen v. Granieri, 133 Idaho 244, 248, 985 P.2d 669, 673 (1999)
(quoting Restatement (Second) Torts § 315 (1965)). This Court has identified examples of these
relationships, including “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.”
Henrie v. Corp. of President of Church of Jesus Christ of Latter-Day Saints, 162 Idaho 204, 209,
395 P.3d 824, 829 (2017) (quoting Turpen, 133 Idaho at 248, 985 P.2d at 673). These examples
underscore that the “quintessential aspects” of this category are “custody and control” over the
third person—attributes that give rise to a duty to protect others from the third person’s tortious
conduct. GSN Cap., LLC v. Shoshone City & Rural Fire Dist., 173 Idaho 345, 356, 541 P.3d 703,
714 (2024); Litchfield v. Nelson, 122 Idaho 416, 420–21, 835 P.2d 651, 655–56 (Ct. App. 1992)
(“For there to be a special relationship between the actor and the third person, the actor must have
the ability and obligation to control the conduct of the third person.”).
The second category of a special relationship “exists between the actor and the other which
gives the other a right to protection.” Turpen, 133 Idaho at 248, 985 P.2d at 673 (quoting
Restatement (Second) Torts § 315 (1965)). Like the first category, the duty to protect is imposed
on the “actor” who exercises custody and control over the “other.” See GSN Cap., 173 Idaho at
356, 541 P.3d at 714. In the employment context, this duty may arise when the nature of the
employment requires the employee to “entrust[] himself to the control and protection of [the
employer], with a consequent loss of control to protect himself.” Williams v. Cunningham Drug
Stores, Inc., 418 N.W.2d 381, 383 (Mich. 1988). When that is the case, “[t]he duty to protect is
imposed upon the person in control because he is best able to provide a place of safety.” Id. In this
case, the district court aptly pointed to miners, divers, and flight attendants as examples of
professions where a special relationship is part and parcel of the employment relationship given
that these professionals “must rely on his or her employer for safety.” The court aptly noted: “For
example, flight attendants must entrust themselves to the airline for which they work, presuming
the airplane will be maintained properly for safe travel. While they are working, the airline has full
custody and control of the attendants.” Under either category of special relationship, the analysis

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begins by considering whether the custody and control elements are present. GSN Cap., 173 Idaho
at 354, 356, 541 P.3d at 712, 714. If those elements are satisfied, a special relationship exists.
In the present case, the Flaget heirs argue that Mary Russell owed a duty to protect David
Flaget from James Russell under the second category of special relationship—her alleged custody
and control over Flaget as her groundskeeper. Although it is undisputed that Mary Russell
employed Flaget as a groundskeeper, the pertinent question is whether she simultaneously
exercised “full custody and control” over him such that Flaget relied on her for his personal safety.
See id. at 356, 541 P.3d at 714. To support their position, the Flaget heirs invoke agency-law
principles, asserting that Mary Russell “controlled” Flaget’s groundskeeping work. But even if
true, that point is immaterial to the existence of a special relationship. As discussed, the relevant
inquiry is whether the “other” (Flaget) was deprived of personal autonomy to the extent that he
was compelled to rely on his employer (Mary Russell) for safety. See Turpen, 133 Idaho at 248,
985 P.2d at 673 (quoting Restatement (Second) Torts § 315 (1965)); GSN Cap., 173 Idaho at 356,
541 P.3d at 714.
The Flaget heirs attempt to equate control over Flaget’s work with “custody and control”
over his person, arguing that because Mary Russell directed his tasks, he must also have depended
on her for protection. Their reasoning is flawed. The agency principle of control is unrelated to the
tort principle of a special relationship based on custody and control. In other words, an employer
who controls his employee’s work does not necessarily exercise custody and control over the
employee’s person; these are separate inquiries. The nature of Flaget’s duties as a groundskeeper
did not entail a loss of his ability to ensure his own safety. True, Mary Russell may have been
Flaget’s supervisor, but she did not exercise custody over Flaget in the way, for example, an airline
does over a flight attendant. Flaget freely entered and exited the property, and he performed the
tasks Mary Russell did assign him with minimal supervision. Put simply, Mary Russell was not
Flaget’s custodian while he worked on the Clark Fork property. It follows that Flaget did not rely
on her for protection, and Mary Russell had no duty to provide it. In the absence of this “hallmark”
of a special relationship, the district court correctly concluded that Mary Russell owed no duty to
protect Flaget by virtue of their employment relationship.
Nonetheless, the Flaget heirs insist the district court erred in reaching this conclusion
because it failed to consider that the Clark Fork property “was in an isolated location, that Mr.
Flaget relied upon Mary Russell for all onsite equipment, and Mary[’s] prior knowledge that

9
[James] was a dangerous individual who had already attacked groundskeepers in the past.” These
concerns, however legitimate, have no bearing on whether Mary Russell exercised custody and
control over Flaget. First, as mentioned, there is no indication that, once Flaget entered the Clark
Fork property to perform his work, he became cut off from the outside world and lost autonomy
over his person, including an ability to protect himself.
Next, the fact that Mary Russell provided Flaget with groundskeeping tools may be
relevant to the degree of control she exercised over his work as a matter of agency law, but it says
nothing about whether she physically exercised custody over his person. Again, this line of
reasoning reflects the Flaget heirs’ mistaken attempt to equate agency-based control with the
“custody and control” required to establish a special relationship under tort law. The two are
distinct and different concepts.
Finally, the Flaget heirs point to Mary Russell’s knowledge of James’ past violent behavior
as a relevant factor in the custody-and-control analysis, which the district court declined to
consider. Yet Mary Russell’s knowledge of the risk James Russell may have posed says nothing
about whether her employment relationship with Flaget required that he “entrust[] himself to [her]
control and protection . . . , with a consequent loss of control to protect himself.” Williams, 418
N.W.2d at 383. And as a more general matter, knowledge of a danger, standing alone, does not
give rise to a duty to provide aid or protection. Restatement (Second) Torts § 314 (1965); Coghlan,
133 Idaho at 400, 987 P.2d at 312 (declining to impose a duty on university to protect adult students
from risks of voluntary intoxication, even where university personnel were aware of widespread
alcohol use); accord Harper v. Herman, 499 N.W.2d 472, 475 (Minn. 1993) (declining to hold a
boat pilot liable for injuries to a passenger who dove into shallow water despite the pilot’s
knowledge of the depth).
In sum, the employment relationship between Mary Russell and Flaget does not reflect the
degree of custody and control “quintessential” to a special relationship from which a duty to aid
or protect may arise. See GSN Cap., 173 Idaho at 356, 541 P.3d at 714. Flaget never surrendered
his personal autonomy as a condition of employment as Mary Russell’s groundskeeper, so she had
no duty to provide aid or protection in that capacity. The Flaget heirs’ arguments to the contrary
are irrelevant to the custody-and-control inquiry and conflict with longstanding limiting principles
on the duty to aid or protect embraced by this Court. We conclude that the district court correctly

10
ruled Mary Russell owed no duty to protect Flaget from James Russell’s violence under a special-
relationship theory.
2. The district court correctly rejected the Flaget heirs’ assumed-duty theory.
The Flaget heirs advance a second theory to support their claim that Mary Russell owed a
duty to aid or protect Flaget. They argue that Mary Russell voluntarily assumed this duty when
she intervened in at least two prior “disputes” between Flaget and James Russell during the course
of Flaget’s groundskeeping work on the Clark Fork property.
The first incident occurred when James Russell arrived at the property in the summer of
2021. In her deposition, Mary Russell explained that James boarded in various locations on the
property, a pattern that vexed Flaget and led to tension between the two men:
[Mary Russell]. That was one of the problems that our caretaker was having
with [James] because he wanted to move from house to house because there’s
several buildings up there that are made up and ready to use. And he wanted to stay
where he wanted to stay. And that was where -- a point of -- of dispute between
[James] and my caretaker because [James] was going from house to house.
....
. . . [Flaget] just told me that [James] just wanted to go from place to place,
and he said he got tired of cleaning up after him every -- he’d be one place one day,
and couple days later, he was someplace else. And he said I’m tired of this.
....
Q. Did you talk to James about staying in one place?
[Mary Russell]. Yes, I did.
Q. What do you remember about that conversation with James?
[Mary Russell]. Well, it was just that. I said, [James], you’ve got to decide
where you’re going to stay. You can stay here, but you can’t just keep -- keep
moving from place to place.
Q. Did James then stay in one place after that conversation?
[Mary Russell]. Well, pretty much, I guess.
The second incident involved James’ attempts to micromanage Flaget’s work:
[Mary Russell]. Because James was -- wanted to boss -- boss every -- boss
and be -- tell [Flaget] what to do. He saw it wasn’t going to work.
....
Q. Did [Flaget] tell you that those two had a lot of interactions with like --

11
[Mary Russell]. No, he didn’t mention it was a lot. But he said I’m not -- he
said I want you to know I’m not taking orders from [James]. And I said I don’t
expect you to.
....
Q. Okay. And what did -- do you remember what exactly you said to James?
[Mary Russell]. Well, I said, James, just mind your business and let [Flaget]
mind his. I said you’re welcome here, but you just -- just keep out of my caretaker’s
business. He knows what he’s doing.
Q. Did James -- after that conversation you had with James, did James stop
what he was doing with regards to [Flaget]?
[Mary Russell]. Not really. He doesn’t listen -- he never listened to anybody.
The district court concluded that, although Mary Russell may have intervened to some
extent in these disagreements, those “sparse facts” were insufficient to establish that she thereby
assumed a duty to protect Flaget from James Russell’s subsequent criminal violence. On appeal,
the Flaget heirs argue that the district court erred in reaching this conclusion because it
“emphasized Mary Russell’s age, characterizing her as an ‘elderly woman’ and minimizing her
role as an employer who actively intervened in escalating confrontation between her grandson,
James Russell, and her employee.” They contend that, by “directing James to stay in one cabin and
later instructing him to follow Mr. Flaget’s orders,” Mary Russell voluntarily assumed a duty, not
to “physically restrain her grandson,” but to warn Flaget of James Russell’s violent history, to
“ensure[] the two were not present on the property simultaneously, or [to] temporarily suspend[]
Mr. Flaget’s duties while James was in residence.” The Flaget heirs’ attempt to locate an assumed
duty on Mary Russell’s part in these limited interactions is unavailing.
Apart from the existence of a special relationship, an affirmative duty to protect another
may also arise “[i]f one voluntarily undertakes to perform an act, having no prior duty to do so.”
Featherston ex rel. Featherston v. Allstate Ins. Co., 125 Idaho 840, 843, 875 P.2d 937, 940 (1994).
In that instance, “the duty is to perform the voluntarily undertaken act in a non-negligent manner.”
Baccus v. AmeriPride Servs., Inc., 145 Idaho 346, 350, 179 P.3d 309, 313 (2008) (citation
modified). Importantly, however, “[l]iability for an assumed duty . . . can only come into being to
the extent that there is in fact an undertaking.” Udy v. Custer County, 136 Idaho 386, 389, 34 P.3d
1069, 1072 (2001) (citation omitted). And the scope of the duty is coterminous with the
undertaking itself. Baccus, 145 Idaho at 350, 179 P.3d at 313. That is, the actor incurs no obligation
beyond the duty actually assumed. Id. Moreover, “past voluntary acts do not entitle the benefited

12
party to expect assistance on future occasions, at least in the absence of an express promise that
future assistance will be forthcoming.” Udy, 136 Idaho at 390, 34 P.3d at 1073 (first citing City of
Santee v. County of San Diego, 259 Cal. Rptr. 757, 762 (Ct. App. 1989); and then citing Fort Bend
Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 397 (Tex. 1991)).
We follow a three-element test for establishing a voluntarily assumed duty: “(1) one
previously has undertaken to perform a voluntary undertaking; (2) others are relying on the
continued performance of the service; and (3) it is reasonably foreseeable that legally recognized
harm could result from failure to perform the undertaking.” GSN Cap., 173 Idaho at 357, 541 P.3d
at 715 (citation modified); Forbush v. Sagecrest Multi Fam. Prop. Owners’ Ass’n, Inc., 162 Idaho
317, 326, 396 P.3d 1199, 1208 (2017); Beers v. Corp. of President of Church of Jesus Christ of
Latter-Day Saints, 155 Idaho 680, 688, 316 P.3d 92, 100 (2013). Applying this test, we conclude
that the district court correctly ruled as a matter of law that Mary Russell owed no duty to aid or
protect Flaget from James Russell.
As to the first element, there is little dispute that Mary Russell to some degree voluntarily
undertook to mediate at least two disagreements between Flaget and James Russell. The question,
however, is whether Mary’s verbal instructions to James Russell—directing him to stay in one
location in one instance and not to interfere with Flaget’s work in another—constituted a
“voluntary undertaking” from which a specific legal duty to aid or protect Flaget could arise. While
her instructions may have been intended to assist Flaget in performing his groundskeeping duties
without disruption, they are not reasonably congruent with a duty to protect Flaget from James
Russell’s criminal violence. See Baccus, 145 Idaho at 350, 179 P.3d at 313. In other words, a duty
to aid or protect against criminal violence cannot be assumed based on conduct that is, at most,
intended to facilitate Flaget’s completion of his work without hindrance.
Moreover, Mary’s limited interventions amount only to prior voluntary acts; nothing in the
record indicates that Mary expressly promised Flaget that she would continue to mediate disputes
between the two as Flaget continued his work on the property—let alone that she would guarantee
Flaget’s personal safety from criminal violence in the course of employment. On these facts, the
first element of an assumed duty is not satisfied.
Relatedly, the record does not support a finding that Flaget relied on Mary Russell for
protection. The district court treated as undisputed that Flaget set his own schedule, independently
determined how he would complete his work, and was not instructed on occupational safety

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measures or offered security as part of his employment. The record generally shows that Flaget
worked independently, largely free of regular supervision. Based on these facts, it is difficult to
conclude that Flaget relied on Mary Russell to provide protection from James Russell or anyone
else on an ongoing basis. The two occasions in which Mary Russell instructed James to remain in
one place and to refrain from meddling in Flaget’s work do not change this conclusion. Thus, the
Flaget heirs have not met the second element of an assumed duty.
Finally, when Mary Russell’s actual undertaking—verbally mediating two
disagreements—is properly defined, it becomes clear that her failure to continue those efforts
would not foreseeably result in “legally recognized harm” to Flaget. At most, her failure to mediate
any future disagreements may have resulted in worsening relations between the two men; it is not
reasonably foreseeable that it would result in Flaget’s death. The third element of an assumed-duty
theory is therefore not met.
In sum, the only undertaking Mary Russell ever made was to verbally mediate relatively
minor disagreements between Flaget and James Russell. The Flaget heirs seek to ascribe a different
undertaking—an ongoing guarantee of physical protection—to Mary Russell. Our assumed-duty
doctrine does not permit such a transformation of the actual undertaking. Accordingly, we
conclude that Mary Russell never assumed a duty to aid or protect Flaget from James Russell. The
district court did not err in reaching this conclusion as a matter of law.
Because both theories of duty advanced by the Flaget heirs fail as a matter of law, we affirm
the district court’s grant of summary judgment in favor of Mary Russell on the negligence claim
brought under the wrongful death statute.
C. The district court properly granted summary judgment in favor of Mary Russell on
the Flaget heirs’ claim for IIED because Mary Russell’s conduct was not extreme and
outrageous or intentionally directed at them.
The Flaget heirs also asserted a claim for IIED against Mary Russell, alleging that she
“intentionally or recklessly breached [her] duty of care in an extreme and outrageous manner,
thereby inflicting severe emotional distress [on them].” Specifically, the Flaget heirs charge Mary
Russell with failing “to warn David Flaget that he was having numerous confrontations with a man
who had already violently attacked [previous] groundskeepers after the same kind of
confrontations,” referring to James Russell’s earlier attack on the Russells’ groundskeepers in
Montana. The district court granted summary judgment to Mary Russell on this claim on two
independent grounds.

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First, the district court ruled that the Flaget heirs failed as a matter of law to demonstrate
Mary Russell’s conduct met the “extraordinarily high threshold” of extreme and outrageous
behavior—conduct “the average person would deem atrocious, or conduct beyond all possible
bounds of human decency.” Second, the district court ruled that the Flaget heirs “fail[ed] to identify
any duty owed to them or any conduct directed toward them as third parties by Mary Russell that
could comprise the tort of [IIED].” For the reasons that follow, we agree with both rationales.
The tort of IIED recognizes an individual’s “interest in peace of mind as entitled to
independent legal protection . . . against intentional invasions.” W. Page Keeton et al., Prosser &
Keeton on Torts § 12, at 54–55 (5th ed. 1984). An IIED claimant must show four elements: “(1)
the conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3)
there must be a causal connection between the wrongful conduct and the emotional distress; and
(4) the emotional distress must be severe.” Hopper v. Swinnerton, 155 Idaho 801, 810, 317 P.3d
698, 707 (2013) (citation omitted).
Addressing the Flaget heirs’ IIED claim, the district court first considered whether Mary
Russell’s conduct was “extreme and outrageous.” Although somewhat nebulous, this standard is
intended to limit IIED claims to conduct “especially calculated to cause serious mental and
emotional disturbance,” thereby “provid[ing] the necessary assurance that genuine harm has been
done.” William L. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich. L.
Rev. 874, 879 (1939). It does not extend to conduct that is merely “unjustifiable,” but instead
requires conduct that exceeds “all possible bounds of decency.” Edmondson v. Shearer Lumber
Prods., 139 Idaho 172, 180, 75 P.3d 733, 741 (2003) (citation omitted). When reasonable minds
may differ as to whether the conduct at issue in a particular case is extreme and outrageous, that
question is reserved to the finder of fact. Id. (citing Restatement (Second) of Torts § 46 cmt. h
(1965)). But when the conduct “could not reasonably be regarded as so extreme and outrageous as
to permit recovery for intentional or reckless infliction of emotional distress,” the issue is properly
adjudicated by the trial court as a matter of law at the summary judgment stage. Id.
Here, the district court concluded that the Flaget heirs had not met the “extraordinarily high
threshold” of showing that Mary Russell’s failure to warn or otherwise protect Flaget amounted to
“extreme and outrageous” conduct. We agree. The Flaget heirs do not contend that Mary engaged
in affirmative, intentionally tortious conduct; rather, they argue that she intentionally refrained
from acting—specifically, she failed to warn Flaget of the danger James Russell posed. This kind

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of nonfeasance does not fall within the ambit of the “extreme and outrageous” standard. Cf. Gray
v. Schenectady City Sch. Dist., 927 N.Y.S.2d 442, 445 (App. Div. 2011) (holding employer-
defendant’s “mere inaction after receiving complaints about [employee’s] behavior” does not rise
to “extreme and outrageous” behavior); Roberts v. Circuit-Wise, Inc., 142 F. Supp. 2d 211, 218
(D. Conn. 2001) (applying Connecticut law in ruling that employer-defendant’s failure to prevent
employee’s harassment of plaintiff does not rise to the level of “extreme and outrageous conduct”);
Burrow ex rel. Burrow v. Postville Cmty. Sch. Dist., 929 F. Supp. 1193, 1210 (N.D. Iowa 1996)
(applying Iowa law in ruling that defendant-school district’s “passive negligence” in failing to
protect plaintiff-student from peers’ harassment does not rise to the level of conduct “so
outrageous . . . and so extreme in degree”).
The district court also determined the IIED claim failed as a matter of law because the
record did not show any intentional conduct directed at the Flaget heirs themselves. It determined
that Mary Russell neither knew the Flaget heirs personally nor interacted with them, apart from
“occasionally meeting Oly Morris.” A tort is intentional when the tortfeasor “desires to cause [the]
consequences of his act” or when “he believes that the consequences are substantially certain to
result from it.” Restatement (Second) of Torts § 8A (1965). Critically, intentionality in tort law
means the actor intends those consequences to affect the plaintiff specifically. Christensen v.
Super. Ct. of Los Angeles Cnty., 820 P.2d 181, 202–04 (Cal. 1991) (collecting cases) (“It is not
enough that the conduct be intentional and outrageous. It must be conduct directed at the
plaintiff . . . .”); see also Hopper, 155 Idaho at 810, 317 P.3d at 707 (affirming summary judgment
on IIED claim because, inter alia, “no respondent acted intentionally towards [appellant] or his
wife”); Alderson v. Bonner, 142 Idaho 733, 740–41, 132 P.3d 1261, 1268–69 (Ct. App. 2006)
(affirming summary judgment on IIED claim because defendant-voyeur videotaped plaintiff’s
roommate in her bedroom, not plaintiff). Absent conduct specifically directed at the plaintiff, an
IIED claim fails on the element of intent.
Nothing in the record supports the contention that Mary Russell directed the consequences
of her alleged nonfeasance—her failure to protect Flaget—toward the Flaget heirs personally. Put
differently, the Flaget heirs have offered no evidence showing that Mary Russell intended to cause
them emotional distress by refraining from warning, aiding, or protecting Flaget from James
Russell. Indeed, the district court found, based on the evidence in the record, that Mary Russell
had no relationship with the Flaget heirs, and we see no reason to disturb that finding on appeal.

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Accordingly, there is no basis to conclude that Mary Russell acted intentionally towards the Flaget
heirs.
The Flaget heirs have failed to show that Mary Russell acted intentionally toward them, or
that her conduct constituted extreme and outrageous behavior, both of which are necessary
elements of an IIED claim. We therefore affirm the district court’s grant of summary judgment in
favor of Mary Russell on the Flaget heirs’ IIED claim.
D. The district court properly granted summary judgment in favor of Mary Russell on
the Flaget heirs’ claim for NIED because Mary Russell owed no duty to them.
The Flaget heirs brought an additional claim against Mary Russell for emotional distress
based on a negligence theory. They alleged that Mary Russell owed a duty of care to Flaget and
that Mary Russell breached that duty by failing to (1) “warn and protect” Flaget from “the risk
posed by James;” (2) reasonably supervise James; (3) ensure James was taking his medication and
receiving medical care; (4) permitting James to board on the Clark Fork property; and (5) failing
to take “other reasonable measures.” The breach of this duty is alleged to have caused the Flaget
heirs “to suffer severe, physically manifested emotional distress.”
Like IIED, NIED protects an individual’s interest in “peace of mind,” but does so against
negligent rather than intentional conduct. See W. Page Keeton et al., Prosser & Keeton on Torts §
12, at 54–55 (5th ed. 1984). An NIED claim therefore requires the breach of a recognized legal
duty, as in any negligence action. Schriver v. Raptosh, 174 Idaho 498, 508, 557 P.3d 398, 408
(2024). To prevail, a plaintiff must establish: “(1) a legal duty recognized by law; (2) a breach of
that duty; (3) a causal connection between the defendant’s conduct and the plaintiff’s injury; and
(4) actual loss or damage.” Id. (quoting Frogley v. Meridian Joint Sch. Dist. No. 2, 155 Idaho 558,
569, 314 P.3d 613, 624 (2013)).
Even assuming the truth of the five breaches the Flaget heirs allege to support their NIED
claim, none implicates a duty owed personally to them—only to Flaget. We have already
determined that Mary Russell owed no duty to Flaget, meaning there is no independent legal duty
to support an NIED claim against her. See Nation v. State, Dep’t of Corr., 144 Idaho 177, 191, 158
P.3d 953, 967 (2007). More fundamentally, even if Mary Russell had owed a duty to Flaget, the
Flaget heirs cannot step into his shoes to recover for whatever emotional harm he may have
suffered. Vulk v. Haley, 112 Idaho 855, 859, 736 P.2d 1309, 1313 (1987). They may recover only
for emotional distress they personally experienced. Because the Flaget heirs’ NIED claim rests

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solely on alleged duties owed to Flaget—and not to them—it fails as a matter of law. We therefore
affirm the district court’s grant of summary judgment in Mary Russell’s favor on the NIED claim.
E. We award partial attorney fees against the Flaget heirs because their IIED and NIED
claims were pursued frivolously.
Mary Russell seeks attorney fees on appeal under Idaho Code section 12-121. This Court
may award reasonable attorney fees to the prevailing party upon finding that “the case was brought,
pursued or defended frivolously, unreasonably or without foundation.” I.C. § 12-121. In evaluating
such a request, this Court considers “[t]he entire course of the litigation.” Telford Lands LLC v.
Cain, 154 Idaho 981, 993, 303 P.3d 1237, 1249 (2013). “Apportionment of attorney fees is
appropriate for those elements of the case that were frivolous, unreasonable, and without
foundation.” Idaho Mil. Hist. Soc’y, Inc. v. Maslen, 156 Idaho 624, 632, 329 P.3d 1072, 1080
(2014).
Mary Russell contends that this appeal is frivolous and, as a consequence, she is entitled to
an award of attorney fees. For the reasons explained below, we agree that the Flaget heirs’ appeal
of the district court’s grant of summary judgment on the IIED and NIED claims was pursued
frivolously. At the outset, we acknowledge that awarding attorney fees against a tort plaintiff
carries the risk of disincentivizing victims and their heirs from vindicating their compensatory
rights, deterring future negligence, and punishing tortfeasors. See Thomas D. Rowe, Jr., Indemnity
or Compensation? The Contract with America, Loser-Pays Attorney Fee Shifting, and a One-Way
Alternative, Washburn L.J. 317, 330 (1998). At the same time, we cannot condone litigation that
imposes unnecessary costs on defendants and consumes scarce judicial resources by advancing
claims that are frivolous, unreasonable, or without foundation.
From the beginning, the Flaget heirs’ NIED and IIED claims lacked a sound legal basis.
As to the IIED claim, the Flaget heirs unsuccessfully attempted to frame Mary Russell’s alleged
nonfeasance—failing to warn or protect Flaget—as intentional conduct that is “extreme and
outrageous.” Worse, the NIED claim relies on Mary Russell’s putative breach of a duty she
allegedly owed to Flaget rather than to the Flaget heirs personally. In short, the Flaget heirs’
pleadings fail to offer anything close to a cognizable NIED or IIED claim. Despite this, the Flaget
heirs pursued those claims in the district court and on appeal to this Court. We do not believe the
district court’s grant of summary judgment to Mary Russell on those claims is fairly debatable.
See C & G, Inc. v. Rule, 135 Idaho 763, 769, 25 P.3d 76, 82 (2001). By contrast, we find the Flaget
heirs’ arguments on appeal concerning the district court’s treatment of the special-relationship and

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assumed-duty theories to be more plausible, even if unartfully presented in the briefs and at oral
argument.
Therefore, we conclude that the Flaget heirs’ appeal of the NIED and IIED claims was
pursued frivolously and apportion an award of attorney fees to Mary Russell for the defense against
those elements of the case alone.
IV. CONCLUSION
Based on the foregoing reasoning and authorities, we affirm the district court’s grant of
summary judgment in favor of Mary Russell (and AMR) on all claims. We partially award attorney
fees against the Flaget heirs and in favor of Mary Russell (and AMR) for the defense of the IIED
and NIED claims. Mary Russell (and AMR) is entitled to costs as a matter of course. I.A.R. 40(a).
Chief Justice BEVAN, and Justices MOELLER, ZAHN and MEYER CONCUR.

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