BOISE, Idaho (Legal Newsline) – The Idaho Supreme Court has affirmed a district court order granting summary judgment to the Idaho Department of Fish and Game and the state of Idaho in a family’s wrongful death lawsuit in the 2010 death of their son in a helicopter accident.

The decision was issued July 11. Perry Krinitt Sr. had filed the lawsuit in the wake of a crash on Aug. 31, 2010, in northern Idaho that killed Perry J. Krinitt Jr., who was piloting the chopper.

The crash also killed IDFG employees Larry Barrett and Danielle Schiff, biologists planning to count salmon spawning nests in the Selway River.

Krinitt Jr. was piloting a Hiller UH-12E helicopter that featured a three-abreast bench seat with the pilot in the center. 

IDFG chartered the chopper from Leading Edge Aviation, based in Clarkston, Washington.

An investigation revealed that the accident was caused when a clipboard struck the tail rotor. Evidence determined that one of the passengers became sick and opened the helicopter door, dropping the clipboard in the process.

On Aug. 30, 2012, Krinitt filed a wrongful death suit alleging negligence seeking damages against IDFG for his son’s death.

On appeal, the Idaho Supreme Court determined that a reasonable jury could conclude that the accident was the result of IDFG’s negligence and reversed and remanded the case to district court.

Following remand, the district court ordered the parties to mediation.

On March 21, 2016, after a failed mediation attempt, and after the date set for the filing of dispositive motions, IDFG filed another motion for summary judgment on the basis of statutory immunity.

Idaho’s Second District Court granted the motion, and Krinitt appealed.

Writing the Supreme Court's opinion, Chief Justice Roger S. Burdick pointed out that the litigants raised three issues, including whether the district court erred in allowing IDFG to assert its statutory employer immunity defense; whether IDFG is a statutory employer of Perry; and whether the district court abused its discretion in imposing sanctions against IDFG.

Burdick wrote that statutory employer immunity is an affirmative defense.

In determining whether an affirmative defense has been waived, Burdick noted that the court had held that “a party does not waive an affirmative defense for failing to raise it in the initial answer, so long as it is raised before trial and the opposing party has time to respond in briefing and oral argument.”

The lower court pointed out that IDFG’s failure to bring the motion earlier was “not part of a pattern of delay or gamesmanship. The oversight was “immediately brought before the court with IDFG acknowledging its error” and “there is no argument that Krinitt was prejudiced by such action.”

“Given the these factors, the district court reasoned that under the applicable legal principles, dismissal of IDFG’s motion, although violating the court’s scheduling order, was unwarranted,” Burdick wrote. “Such a decision was squarely within the district court’s discretion, and we will not overturn it.”

Krinitt argued that IDFG was not the statutory employer of his son, noting that Leading Edge was not a contractor of IDFG and therefore there was no privity of contract between Perry and IDFG, and, thus, IDFG could not be Perry’s statutory employer.

Krinitt also argued that because the U.S. Department of Interior (DOI) was involved in contracting Leading Edge, and because the DOI - as a federal agency - is outside the reach of Idaho’s Worker’s Compensation Act, the DOI cannot be a contractor “under” IDFG.

Citing several relevant cases, including Kolar v. Cassia County and Ewing v. State Department of Transportation, the court ruled that Perry was a statutory employee because he worked as a contractor.

On the final point of whether the district court abused its discretion in imposing sanctions against IDFG, the court again sided with the lower court.

“As the district court observed, IDFG should have known and discovered their affirmative defense earlier and IDFG 'took a risk in retaining an out-of-state attorney,'” Burdick wrote. “There was no excuse for failing to bring the affirmative defense by the Jan. 31, 2014, deadline, and the district court was within the bounds of its discretion in imposing sanctions for failure to comply with its scheduling order.”

In upholding the district court order, Burdick noted that since neither party prevailed on their appeals - Krinitt did not prevail on the appeal of summary judgment and IDFG did not prevail on the appeal of the imposition of sanctions - each side will bear its own costs on appeal.

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