dissenting:
I dissent from the majority’s affirmance of the district court’s judgment against the Ashwoods because questions of material fact remain, and therefore, the district court erred in awarding summary judgment against the Ashwoods in their negligence cause of action.
As to the question of what common law duty respondents owed to Ann Ashwood, in Moody v. Manny’s Auto Repair, 110 Nev. 320, 333, 871 P.2d 935, 943 (1994), we held “that an owner or occupier of land should be held to the general duty of reasonable care when another is injured on that land,” and that “determinations of liability should primarily depend upon whether the owner or occupier of land acted reasonably under the circumstances.” The majority concluded that respondent’s duty of reasonable care did not encompass “a specific duty to keep the west gate unlocked.” This conclusion is erroneous because it is beyond the province of the district court or this court to make a determination as to whether the condition of respondents’ gate falls within the landowner’s duty to use reasonable care.
We have repeatedly noted that “ ‘[cjourts are reluctant to grant summary judgment in negligence cases because foreseeability, duty, proximate cause and reasonableness usually are questions of fact for the jury. . . .’ ” Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 417, 633 P.2d 1220, 1222 (1981) (emphasis added). Although in Meluzzi v. Larson, 96 Nev. 409, 412-413, 610 P.2d 739, 742 (1980), overruled on other grounds by Smith v. Clough, 106 Nev. 568, 570 n.2, 796 P.2d 592, 594 (1990), we said that “ ‘duty’ is only an expression of the aggregate of those policy considerations which cause the law to conclude that protection is owed,” we have also concluded that summary judgment is precluded where genuine issues of fact pertaining to a defendant’s duty have been raised. See State, Dep’t of Transp. v. Central Telephone, 107 Nev. 898, 901,822 P.2d, 1108, 1109 (1991) (holding summary judgment inappropriate where genuine issue of material fact remains as to whether respondent had a duty to maintain a right of way in a safe condition).
In this case, the Ashwoods have presented sufficient evidence to survive summary judgment on the issue of respondents’ duty of care. The majority recognizes that the district court may not pass on the credibility of affidavits and must accept the Ashwoods’ statements as true. Sawyer v. Sugarless Shops, 106 Nev. 265, 267, 792 P.2d 14, 15 (1990). However, the opinion proceeds to reject the veracity of the Ashwoods’ expert, Dan Cashdan, whose affidavit stated that the barn area where the accident occurred was a “Group A” classification. A “Group A” classification would have required the west gate to remain unlocked. Cashdan further *90concluded, based upon his experience with the U.B.C. as a State-employed civil engineer, that there was a duty to keep the west gate unlocked while Horseman’s Park was being used by the public.
Nonetheless, the majority states that it is not convinced that the barn area is a “Group A Occupancy,” nor is it convinced that the west gate is a “required exit.” Under our jurisprudence, I do not believe that the Ashwoods bear the burden of convincing this court of these facts, since Cashdan’s affidavit should have been deemed presumptively credible on summary judgment review by the district court. In past cases, this court has reversed a district court’s order granting summary judgment where the record contains conflicting evidence concerning a defendant’s duty of care. Harry v. Smith, 111 Nev. 528, 534, 893 P.2d 372, 375 (1995). I conclude that it was error for the district court to keep the resolution of such issues of fact from the jury, and the majority errs in affirming the lower court’s erroneous decision.
In rejecting the Ashwoods’ negligence per se and contractual duty arguments, the majority concludes that Ms. Ashwood was not a member of the class of persons meant to be protected by U.B.C. § 3317(d) or by the Horseman’s Park lease contract between NSHA and Clark County. I conclude that whether or not the building code provision or the contractual “safety precautions” were meant to protect Ms. Ashwood were clearly questions of fact that should have been submitted to the jury.
For these reasons, I dissent from the majority’s opinion affirming the district court’s summary judgment against the Ashwoods on their claim of negligence.