Bjerk v. Anderson

• Citation: 911 N.W.2d 343
• Decision Date: 14 May 2018
• Docket Number: No. 20170160,20170160
• Parties: Keith BJERK and Debra Bjerk, Plaintiffs and Appellants v. Kenton G. ANDERSON, Defendant and Appellee
• Court: North Dakota Supreme Court

911 N.W.2d 343

Keith BJERK and Debra Bjerk, Plaintiffs and Appellants

v.Kenton G. ANDERSON, Defendant and Appellee

No. 20170160

Supreme Court of North Dakota.

Filed May 14, 2018

David C. Thompson, Grand Forks, North Dakota, for plaintiffs and appellants.

Christopher A. Wills (argued) and Gordon H. Hansmeier (on brief), St. Cloud, Minnesota, for defendant and appellee.

Tufte, Justice.

[¶ 1] Christian Bjerk, son of appellants Keith Bjerk and Debra Bjerk (the "Bjerks") died from an overdose after consuming drugs at a house owned by Kenton Anderson. The district court granted summary judgment dismissing the Bjerks’ premises liability and negligent entrustment claims, and the Bjerks appealed. We conclude that the facts viewed in a light most favorable to the Bjerks do not support a conclusion that Anderson owed Christian Bjerk a duty of care under a premises liability theory. We also conclude the Bjerks’ negligent entrustment fails as a matter of law because only personal property, and not the real property at issue here, is a potential basis for a negligent entrustment claim. We affirm.

I

[¶ 2] On June 11, 2012, eighteen-year-old Christian Bjerk died as a result of consuming illegal drugs in a Grand Forks house owned by Anderson. In granting summary judgment, the district court described the events leading to Christian Bjerk’s death:

The Defendant Kenton G. Anderson is, and was on June 10 and 11, 2012, the sole owner of the residential property ... [in] Grand Forks, Grand Forks County, North Dakota.

Anderson had not resided at the described property from 2009 to 2013. The property was occupied on June 10 and 11, 2012 by Julie Thorsen, her son [Nicholas "Nick"] Thorsen and her daughter Megan Thorsen.... [T]he father of Megan Thorsen’s unborn child, also resided there. Julie Thorsen is Anderson’s ex-girlfriend as of 2009, but she was and remains his employee. There is no written lease between them and rentals were not paid as a condition of its use.

....

Christian drove Wesley Sweeney ["Sweeney"] and C.J. (a minor) in Christian or Bjerk’s vehicle, to a Grand Forks location, between approximately 1:00 a.m. and 2:00 a.m., June 11, 2012, where Sweeney and C.J. purchased and received acid and ketamine, the latter a hallucinogenic dissociative drug.

Christian subsequently drove Sweeney, C.J., and the illegal drugs to Anderson’s described property, where the three of them met with Nick Thorsen, Shelby Braaten and other individuals. Christian, Sweeney and C.J. consumed or ingested the ketamine drug in the basement area during the early hours on June 11, 2012. According to Shelby Braaten, the three individuals did not consume the acid.

Anderson was not present at the property at the time of the drug consumption, and was not aware of the drug purchase, consumption and gathering of the individuals. Julie Thorsen was sleeping in the upper, or ground level, of the property at the time.

Shelby Braaten and Nick Thorsen contributed money to purchase the acid only, and were not aware of: the ketamine purchase or its identity, Christian and C.J.’s involvement, or that Christian and C.J. would later appear at the Anderson property.

Christian, Sweeney and C.J. became loud and obnoxious, and began exhibiting strange behavior, all within ten minutes of consumption of the ketamine.

Nick Thorsen directed Christian, Sweeney and C.J. to leave the property to avoid waking Julie Thorsen, and they promptly left.

Christian later collapsed where his body was found on the morning of June 11, 2012 on a sidewalk near the Anderson property.

Julie Thorsen informed Anderson later in the morning of June 11, 2012 of the previous night’s drug activity and Christian’s death.

Anderson subsequently ordered Nick Thorsen to leave the residence.

[¶ 3] In 2014, the Bjerks commenced this wrongful death action against Anderson, asserting negligence claims based on premises liability. The Bjerks’ complaint alleged that Anderson had failed to exercise reasonable care to keep a house owned and controlled by him "in reasonably safe condition," "free from illegal and dangerous activity," and "free of drugs and illegal substances." They alleged Anderson failed to use reasonable care in maintaining the premises in a reasonable and safe condition in view of all circumstances, including the "likelihood of injury to another, foreseeability of the injury, the seriousness of the injury, and the burden of avoiding the risk of injury." They also alleged Andersen failed to use reasonable care "to warn entrants to protect an entrant from an unreasonable risk of harm caused by the activities taking place on the premises."

[¶ 4] In 2016, Anderson moved the district court for summary judgment. Anderson argued he had no control over his residence on June 11, 2012, because he had not lived there for approximately three years. Anderson asserted his ex-girlfriend Julie Thorsen and her children, including Nick Thorsen, occupied the home. He also argued he had no special relationship with Christian Bjerk because undisputed evidence showed Bjerk had only been a guest of the other occupants at the residence and was not Anderson’s guest. The Bjerks opposed the motion and requested additional time for discovery. After a hearing, the court allowed the parties to file supplemental memoranda after completing the additional discovery. The court subsequently entered its memorandum decision and order, granting summary judgment and dismissing the Bjerks’ claims.

[¶ 5] The district court concluded the Bjerks had not provided sufficient admissible evidence to raise a genuine issue of material fact whether Anderson breached any duty of care to Christian Bjerk under any theory pleaded. The court further concluded that reasonable minds could draw but one conclusion from the facts and inferences that Anderson either did not owe or did not breach any duty of care to Christian Bjerk.

[¶ 6] The district court specifically rejected the Bjerks’ argument that Christian Bjerk’s death was foreseeable by Anderson and that Anderson had a duty to prevent it. The court concluded that the only reasonable view of the facts was that Anderson no longer occupied the property and Anderson’s ex-girlfriend Julie Thorsen and her children had possession and control of the home. The court also explained that Nick Thorsen allowed dangerous drug activity on the premises and that although Anderson knew of Nick Thorsen’s criminal history, this history did not include either drug trafficking or acid or ketamine possession. The court concluded the only reasonable view of the evidence was that Christian Bjerk had himself delivered and consumed the drugs and had not been harmed by the property’s physical condition. The court concluded there were no genuine issues of material fact because Anderson did not transport the drugs to his property and did not provide the drugs to Christian Bjerk.

[¶ 7] The district court also rejected the Bjerks’ argument that Anderson had a duty to protect Christian Bjerk on the basis of an open and obvious dangerous drug activity and condition at the residence. The court stated that Anderson had "limited understanding" of Nick Thorsen’s criminal history, had no knowledge of the events of June 10 and 11, 2012, and was neither present nor informed as to what was occurring at that time. The court stated Christian Bjerk had been an active participant in securing the illegal drugs and concluded reasonable minds could reach only one conclusion—consuming illegal drugs is an obviously dangerous activity in which Christian Bjerk voluntarily engaged.

[¶ 8] Lastly, the district court rejected the Bjerks’ claim for negligent entrustment, concluding no factual or legal support existed to show Anderson had entrusted Christian Bjerk with any personal property.

II

[¶ 9] Our standard for reviewing the district court’s summary judgment decision under N.D.R.Civ.P. 56 is well established:

Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record.

APM, LLLP v. TCI Ins. Agency, Inc. , 2016 ND 66, ¶ 7, 877 N.W.2d 34 (quoting JPMorgan Chase Bank v. Skoda , 2014 ND 67, ¶ 5, 844 N.W.2d 870 ). When ruling on summary judgment, the district court may not draw inferences, make findings on disputed facts to support the judgment, weigh the evidence, or determine credibility. Saltsman v. Sharp , 2011 ND 172, ¶ 18, 803 N.W.2d 553. "Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute as to an essential element of his claim and on which he will bear the burden of proof at trial." APM , at ¶ 7 (quoting Perius v. Nodak Mut. Ins. Co. , 2010 ND 80, ¶ 9, 782 N.W.2d 355 ). Whether a district court properly granted summary judgment presents a question of law, which we review de novo on the entire record. Id.

III

A

[¶ 10] Under North Dakota premises liability law, "general negligence principles govern a landowner’s duty of care to persons who are not trespassers on the premises." M.M. v. Fargo Pub. Sch. Dist. #1 , 2010 ND 102, ¶ 9, 783 N.W.2d 806 (quoting Schmidt v. Gateway Cmty. Fellowship , 2010 ND 69, ¶ 8, 781 N.W.2d 200 ). "Actionable negligence consists of a duty, breach, and an injury that was proximately caused by the breach." Iglehart v. Iglehart , 2003 ND 154, ¶ 11, 670 N.W.2d 343 (citing Diegel v. City of West Fargo , 546 N.W.2d 367, 370 (N.D. 1996) ).

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