Botner v. Bismarck Parks And Recreation Dist.

• Decision Date: 18 May 2010
• Docket Number: No. 20090337.,20090337.
• Citation: 782 N.W.2d 662,2010 ND 95
• Parties: Corey BOTNER, individually and as the father and natural guardian of D.B., a minor, Plaintiff and Appellantv.BISMARCK PARKS AND RECREATION DISTRICT, Defendant, Third-Party Plaintiff and Appelleev.Child, Inc., d/b/a Early Childhood Learning Center, Third-Party Defendant.
• Court: North Dakota Supreme Court

782 N.W.2d 662

2010 ND 95

Corey BOTNER, individually and as the father and natural guardian of D.B., a minor, Plaintiff and Appellant

v.BISMARCK PARKS AND RECREATION DISTRICT, Defendant, Third-Party Plaintiff and Appellee

v.Child, Inc., d/b/a Early Childhood Learning Center, Third-Party Defendant.

No. 20090337.

Supreme Court of North Dakota.

May 18, 2010.

David S. Maring (argued) and Anthony J. Weiler (on brief), Bismarck, ND, for plaintiff and appellant Corey Botner.

Randall J. Bakke (argued) and David R. Phillips (on brief), Bismarck, ND, for defendant, third-party plaintiff and appellee Bismarck Parks and Recreation District.

KAPSNER, Justice.

[¶ 1] Corey Botner appeals from a district court's summary judgment dismissing his claim against Bismarck Parks and Recreation District (Bismarck Parks). We hold the district court erroneously granted summary judgment because Botner produced sufficient evidence to create genuine issues of material fact regarding whether Bismarck Parks breached its duties to maintain its property in a reasonably safe condition and to provide adequate supervision. Therefore, we reverse the district court's summary judgment and remand the case for further proceedings consistent with this opinion.

I.

[¶ 2] In July 2006, Botner's five-year-old son, D.B., went to Hillside Pool on a field trip with his daycare provider, Early Childhood Learning Center (ECLC). D.B. suffered serious injuries when he fell from the high diving board. D.B. began to run on the diving board, stumbled, and fell onto the concrete below. Botner sued Bismarck Parks, which owns and operates Hillside Pool. Botner claimed Bismarck Parks committed actionable negligence by failing to: provide safe equipment, properly supervise diving board users, or warn users of the dangers associated with the high diving board. Botner claimed Bismarck Parks' negligence was the proximate cause of D.B.'s injuries. In its answer, Bismarck Parks admitted D.B. fell from the high diving board, but denied any negligence or liability. Thereafter, Bismarck Parks filed a third-party complaint against ECLC, claiming it negligently supervised D.B. Bismarck Parks also filed a motion for summary judgment, arguing (1) Botner failed to produce sufficient evidence to establish it acted negligently; (2) Botner's claims were barred by the doctrine of discretionary immunity under N.D.C.C. § 32-12.1-03; and (3) the dangers posed by the high diving board were open and obvious.

[¶ 3] The district court granted Bismarck Parks' motion on the first ground, concluding Botner failed to produce sufficient evidence to create material issues of fact regarding whether Bismarck Parks committed actionable negligence. While the district court stated “Bismarck Parks had a duty to maintain its property in a reasonably safe condition,” the court found “there is no evidence to suggest that Bismarck Parks did not take reasonable measures to prevent injuries. Indeed, the diving board was in use for over 50 years before any major injuries occurred.” In addition, the district court found “there is no evidence to suggest that the diving board was not reasonably safe” because none of the persons deposed by either party “has any knowledge about whether modifications were needed to make the diving board reasonably safe.” The district court also found there was no issue of material fact regarding whether Bismarck Parks should have modified the high diving board's guardrails because “[t]here is no evidence to suggest that the guardrails were not adequate or that the guardrails presented any foreseeable danger.”

[¶ 4] In addition, the district court stated Bismarck Parks had a duty to adequately supervise swimmers and properly train lifeguards. However, the district court found “there is not an issue of material fact regarding whether any lifeguard had a duty to stop [D.B.] from running prior to the time that he would have jumped off the diving board.” The district court based this finding upon the testimony of lifeguard Rachel Wiche, who was watching the high diving board when D.B. fell off, as well as another lifeguard on duty the day of the accident. Both testified their practice was to warn persons who ran on the diving board after they jumped and surfaced, not while they were running. The district court inferred from the lifeguards' testimony “that it is safer to let a person jump off the diving board once that person starts running on the diving board; blowing the whistle during the run could cause a distraction which could result in a fall.”

[¶ 5] The district court also found “there is not an issue of material fact as to whether the lifeguards had any reason to know that [D.B.] was going to use the high diving board in an improper way or that [D.B.] was not capable of using the high diving board.” In support, the district court noted:

[T]he lifeguards previously tested [D.B.] to make sure that he could use the high diving board. [D.B.] passed that test. Once [D.B.] passed the test, he used the high diving board numerous times, including in front of his mother. Between the time that [D.B.] passed the test and the time of [D.B.'s] accident, nobody ever witnessed [D.B.] running on the high diving board.

Based upon these findings, the district court concluded Botner failed to produce evidence demonstrating Bismarck Parks failed to adequately supervise D.B.'s use of the high diving board.

[¶ 6] Because the district court granted summary judgment on the basis of Botner's failure to produce evidence establishing Bismarck Parks committed actionable negligence, the district court did not address whether Bismarck Parks has discretionary immunity or whether the dangers associated with the high diving board were open and obvious. Botner now appeals.

II.

[¶ 7] Botner argues this Court should overturn the district court's summary judgment because he produced sufficient evidence to create material issues of fact regarding whether Bismarck Parks committed actionable negligence by failing to have the high diving board's guardrails extend to the edge of the pool or failing to properly supervise D.B. We agree.

[¶ 8] In Farmers Union Mut. Ins. Co. v. Associated Elec. & Gas Ins. Servs. Ltd., 2007 ND 135, ¶ 7, 737 N.W.2d 253, this Court explained its review of a district court's decision to grant summary judgment under N.D.R.Civ.P. 56:

The party moving for summary judgment has the burden of establishing that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Hasper v. Center Mut. Ins. Co., 2006 ND 220, ¶ 5, 723 N.W.2d 409. In deciding whether the district court appropriately granted summary judgment, this Court views the evidence in the light most favorable to the party opposing the motion, and the opposing party will be given the benefit of all favorable inferences that can reasonably be drawn from the record. Id. On appeal, we decide “whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law.” Id. Whether the district court properly granted summary judgment is a question of law that we review de novo on the entire record. Ernst v. Acuity, 2005 ND 179, ¶ 7, 704 N.W.2d 869.

“Negligence actions are ordinarily inappropriate for summary judgment because they involve issues of fact.” Groleau v. Bjornson Oil Co., Inc., 2004 ND 55, ¶ 6, 676 N.W.2d 763. See also

Barsness v. Gen. Diesel & Equip. Co., Inc., 383 N.W.2d 840, 844 (N.D.1986) (“[I]f 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.”).

[¶ 9] “Under premises liability law, landowners owe a general duty to lawful entrants to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.” Groleau, 2004 ND 55, ¶ 16, 676 N.W.2d 763 (citing Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 8, 673 N.W.2d 257; Doan v. City of Bismarck, 2001 ND 152, ¶ 13, 632 N.W.2d 815; Sternberger v. City of Williston, 556 N.W.2d 288, 290 (N.D.1996)). The duty to maintain property in a reasonably safe condition applies to government entities operating public swimming facilities. See 57 Am.Jur.2d Municipal, County, School, and State Tort Liability § 280 (2010) (“[T]he courts generally have recognized that government operators of swimming facilities are bound to use ordinary, due, or reasonable care for the safety of the invitees....”).

[¶ 10] In Azure v. Belcourt Pub. Sch. Dist., 2004 ND 128, ¶ 9, 681 N.W.2d 816 (citations and quotations omitted), this Court explained the general laws applicable to negligence claims:

An actionable negligence consists of a duty on the part of an allegedly negligent party to protect the plaintiff from injury, a failure to discharge that duty, and a resulting injury proximately caused by the breach of the duty. To establish an actionable negligence, the plaintiff must show the defendant had a duty to protect the plaintiff from injury. Generally, the existence of a duty is a preliminary question of law for the court to decide. When a duty does not exist, there is no negligence. If determining the existence of a duty depends on resolving factual issues, the facts must be resolved by the trier of fact. However, issues of fact may become issues of law for the court if reasonable persons could reach only one conclusion from the facts.

“Whether a breach of a duty is the proximate cause of an injury depends on the facts and circumstances of each case....” Rued Ins., Inc. v. Blackburn, Nickels & Smith, Inc., 543 N.W.2d 770, 773 (N.D.1996). “To warrant a finding that a person's conduct is the proximate cause of an injury, the injury must be the...