Barsness v. General Diesel & Equipment Co., Inc., 10918

• Decision Date: 19 March 1986
• Docket Number: No. 10918,10918
• Citation: 383 N.W.2d 840
• Parties: Prod.Liab.Rep. (CCH) P 10,957 Raymond BARSNESS, an Individual, Plaintiff and Appellant, v. GENERAL DIESEL & EQUIPMENT CO., INC., a North Dakota Corporation, Defendant, Third-Party Plaintiff and Appellee, v. FIRST ASSEMBLY OF GOD CHURCH and Northern Improvement Co., Third-Party Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 840

383 N.W.2d 840

Prod.Liab.Rep. (CCH) P 10,957

Raymond BARSNESS, an Individual, Plaintiff and Appellant, v. GENERAL DIESEL & EQUIPMENT CO., INC., a North Dakota

Corporation, Defendant, Third-Party Plaintiff and Appellee, v. FIRST ASSEMBLY OF GOD CHURCH and Northern Improvement Co.,

Third-Party Defendants and Appellees.

Civ.No. 10918.

Supreme Court of North Dakota.

March 19, 1986.

Aarestad, Briggs & Jones, Fargo, for plaintiff and appellant; argued by Wayne G. Aarestad.

Cahill, Jeffries & Maring, Moorhead, for defendant, third-party plaintiff and appellee General Diesel & Equipment Co., Inc.; argued by David S. Maring.

MESCHKE, Justice.

Raymond Barsness sued General Diesel & Equipment Company [General Diesel] on theories of negligent entrustment and negligent failure to warn for injuries he sustained when the manbasket he was occupying became disengaged from a crane supplied by General Diesel. The trial court held that General Diesel owed no duty to Barsness under either theory. Barsness appeals from the district court summary judgment dismissing his action. We reverse and remand for trial.

In 1980, First Assembly of God Church began construction of a new sanctuary in Fargo. First Assembly hired Arlyn Land, a church member with limited construction experience, to serve as general superintendent of the construction project.

General Diesel sells and leases construction equipment. In August of 1980, and again in August of 1981, General Diesel leased a crane to First Assembly for Land's use at the construction site. Land also obtained a manbasket from Northern Improvement Company to be attached to the crane to lift men for above-ground work. Land's only previous experience operating a crane involved setting a walk bridge at a golf course, which entailed only ground-level work and did not require lifting workmen in a manbasket.

Barsness was hired as a laborer by First Assembly in 1981. On August 24, 1981, Barsness and another worker were lifted in the manbasket to check spacing between four large arches. Land was operating the crane, and had rigged the manbasket to the crane with a four-foot piece of chain by simply looping the chain through the eye of the manbasket and placing the chain's hook through one of its links. It is undisputed that this was an improper manner of rigging the manbasket to the crane. While suspended approximately thirty-five feet above the ground the chain became disconnected, causing the manbasket to fall to the ground. Barsness was seriously injured.

Barsness commenced this action against General Diesel, alleging negligent entrustment of the crane to an inexperienced operator and negligent failure to warn. General Diesel filed a third-party complaint against First Assembly and Northern Improvement. The trial court granted summary judgment dismissing Barsness's claims against General Diesel, and Barsness appeals.

I. NEGLIGENT ENTRUSTMENT

Barsness contends that the trial court erred in dismissing his action based upon General Diesel's alleged negligent entrustment of the crane to First Assembly and Land. Barsness relies upon Section 390 of the Restatement (Second) of Torts (1965) to support his argument:

"s 390. Chattel for Use by Person Known to be Incompetent.

"One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them."

This Court has previously recognized a cause of action for negligent entrustment. See Rau v. Kirschenman, 208 N.W.2d 1, 5-7 (N.D.1973); Posey v. Krogh, 65 N.D. 490, 497-498, 259 N.W. 757, 760-761 (1934); see also Aberle v. Karn, 316 N.W.2d 779, 783 (N.D.1982); Rodgers v. Freborg, 240 N.W.2d 63, 65 (N.D.1976); Froemke v. Hauff, 147 N.W.2d 390, 404 (N.D.1966). Although these cases involved entrustment of a motor vehicle, we see no reason why the doctrine should not apply to other chattels which, if placed in the hands of an incompetent or inexperienced person, present a likelihood of unreasonable risk of harm to third persons. Thus, Section 390 of the Restatement (Second) of Torts (1965) appropriately summarizes the principle of negligent entrustment as applied in our state. ¹

In this case, the trial court held that misuse of the crane by First Assembly and Land was unforeseeable, so that General Diesel owed no duty to Barsness as a matter of law. The court further held that even if a duty was owed, as a matter of law Land was not an inexperienced crane operator. ²

As a prerequisite to actionable negligence, a plaintiff is required to establish the existence of a duty on the part of the allegedly negligent person to protect the plaintiff from injury. Layman v. Braunschweigische Maschinenbauanstalt, Inc., 343 N.W.2d 334, 340 (N.D.1983). Whether a duty exists is generally a preliminary question of law for the court. Holcomb v. Zinke, 365 N.W.2d 507, 511 (N.D.1985); Peterson v. City of Golden Valley, 308 N.W.2d 550, 553 (N.D.1981); see § 328B, Restatement (Second) of Torts (1965).

General Diesel contends that summary judgment is appropriate in this case because, as a matter of law, it owed no duty to protect Barsness from the injury which he sustained. General Diesel relies upon Peterson, supra, and Schlenk v. Northwestern Bell Telephone Co., 329 N.W.2d 605 (N.D.1983). In Peterson and Schlenk, parties who had hired subcontractors were sued by employees of the subcontractors for vicarious liability in situations where the work was claimed to involve a "peculiar risk" or "special danger," relying upon principles summarized in Sections 416 and 427, Restatement (Second) of Torts (1965). We upheld summary judgment in each case because the evidence did not show, as a matter of law, that the activities involved a "peculiar risk" or "special danger."

It is important to note, however, that in Peterson we specifically distinguished "cases like Kirton v. Williams Elec. Co-op, Inc., 265 N.W.2d 702 (N.D.1978), where factual determinations are prerequisite to establishing duty." Peterson, supra, 308 N.W.2d at 553. If the existence of a duty depends upon factual determinations, resolution of such factual disputes is for the trier of fact. See Layman, supra, 343 N.W.2d at 341; Schleicher v. Western State Bank, 314 N.W.2d 293, 298 (N.D.1982); Kirton v. Williams Electric Cooperative, Inc., supra, 265 N.W.2d at 705. In Kirton, we held that whether the defendant could have reasonably foreseen the injury to the plaintiff was a factual determination prerequisite to the finding of a duty. See also Schleicher, supra, 314 N.W.2d at 298. The same situation is presented in the instant case--the existence of a duty is contingent upon a jury's determination of foreseeability of the injury to the plaintiff. Thus, Schlenk and Peterson are distinguishable and summary judgment on this issue was inappropriate. The appropriate procedure under these circumstances is outlined in Comment e to Section 328B of the Restatement (Second) of Torts (1965): "Where the existence of a duty will depend upon the existence or non-existence of a fact as to which the jury may reasonably come to either one of two conclusions ... then it becomes the duty of the court to instruct the jury as to the defendant's duty, or absence of duty, if either conclusion as to such fact is drawn."

The trial court, however, determined that, as a matter of law, Land's misuse of the crane was not foreseeable. We have previously held that foreseeability of the plaintiff's injury is a question of fact for the jury, unless the facts are such that reasonable minds could not differ. Layman, supra, 343 N.W.2d at 341; Kirton, supra, 265 N.W.2d at 705. Whether a particular use or misuse of a product was reasonably foreseeable is also a jury question. Olson v. A. W. Chesterton Co., 256 N.W.2d 530, 535 (N.D.1977); Johnson v. American Motors Corp., 225 N.W.2d 57, 65 (N.D.1974). If, however, the facts are such that reasonable minds could not differ, the court may decide the issue as a matter of law. Kirton, supra, 265 N.W.2d at 705. Presumably, the trial court in this case determined that reasonable minds could not reach differing conclusions from the evidence on foreseeability.

We have often stated that negligence actions ordinarily should not be disposed of by summary judgment. E.g., VanVleet v. Pfeifle, 289 N.W.2d 781, 784 (N.D.1980). Even if there is no dispute as to the evidentiary facts, if there is any doubt as to the existence of a genuine issue of material fact, or if differing inferences can be drawn from the undisputed evidence, there is a jury question and summary judgment is improper where questions of negligence are in issue. Kirton, supra, 265 N.W.2d at 706; Johnson v. American Motors Corp., supra, 225 N.W.2d at 58. Where there exists the "slightest doubt" as to a factual dispute or "genuine issue of fact," summary judgment should be denied in a negligence action. Kirton, supra, 265 N.W.2d at 706.

Upon a thorough review of the record, we conclude that the trial court erred when it found that the evidence was such that reasonable minds could draw only one conclusion on the issue of foreseeability. There was sufficient evidence presented from which one could draw an inference that it was foreseeable that Land, with his limited experience with cranes, ³ might improperly rig the crane and thereby injure some third party. It is not necessary that the defendant foresee the exact or particular injury or the exact or particular manner in which it may occur. Kirton, supra, 265 N.W.2d at 705; see Moum v. Maercklein, 201 N.W.2d 399, 402-403 (N.D.1972). Thus, in this case, it was not necessary that General Diesel foresee specifically that Land would use a chain to rig a...