Collette v. Clausen

• Decision Date: 20 August 2003
• Docket Number: No. 20030026.,20030026.
• Citation: 667 N.W.2d 617,2003 ND 129
• Parties: Katie COLLETTE, individually and as the surviving wife and representative of the heirs at law and estate of Joshua Collette, deceased, Plaintiff and Appellant, v. Robert CLAUSEN, Defendant and Appellee.
• Court: North Dakota Supreme Court

667 N.W.2d 617

2003 ND 129

Katie COLLETTE, individually and as the surviving wife and representative of the heirs at law and estate of Joshua Collette, deceased, Plaintiff and Appellant, v. Robert CLAUSEN, Defendant and Appellee.

No. 20030026.

Supreme Court of North Dakota.

August 20, 2003.

Kim E. Brust, Conmy Feste, Ltd., Fargo, ND, for plaintiff and appellant.

James D. Erickson, Erickson Law Office, Moorhead, MN, for defendant and appellee.

KAPSNER, Justice.

[¶ 1] Katie Collette appeals from a summary judgment dismissing with prejudice her action against Robert Clausen ("Clausen") seeking damages for wrongful death and pain and suffering arising from a snowmobile accident. We conclude Katie Collette failed to present sufficient evidence following a motion for summary judgment to establish each essential element of her claims for negligent entrustment and negligent failure to warn. We affirm.

I

[¶ 2] In January 1999, Joshua Collette and Clausen decided to go snowmobiling on the Red River ("the river") in Grand Forks, North Dakota. Joshua Collette and Clausen had gone snowmobiling together previously in the winter of 1998, but they did not snowmobile on a river. Joshua Collette, who was 21 years old at the time of the accident, had operated a snowmobile on at least three other occasions.

[¶ 3] Clausen owned and provided to Joshua Collette the snowmobile Joshua Collette was driving at the time of the accident. Clausen selected the route the two men were planning to snowmobile. Clausen stated he planned to snowmobile with Joshua Collette downstream on the river to get to the area where the two men had gone snowmobiling together the previous winter. Clausen acknowledged the limited visibility of the Riverside dam ("the dam") while traveling downstream makes it dangerous to approach the dam on a snowmobile at high speeds; however, Clausen testified there was an orange buoy in the snow on the river "[p]robably 150 yards" from the top of the dam. Clausen stated that although he had driven his snowmobile on the river many times and was familiar with the route they were going to snowmobile, Clausen did not know whether Joshua Collette had previously driven a snowmobile on the river or if he had been near the dam prior to the accident. Katie Collette indicated during her deposition that Joshua Collette had been in the area of the dam with her on one other occasion during the fall or early winter to look for a rock for a local radio contest. Katie Collette explained that they looked for the rock in the open water under the dam.

[¶ 4] Clausen testified on the day of the accident he and Joshua Collette unloaded the snowmobiles near the Red Lake River and the Red River by Minnesota Avenue. Clausen stated the dam was located at least one and a half miles downstream from where they unloaded the snowmobiles. Clausen's deposition indicates that before he and Joshua Collette began snowmobiling on the river, he "had told Josh that when [they] got out on the river [he] was going to stop and relieve [himself] before [they] went on [their] ride." Clausen testified he pulled over and stopped his snowmobile "a good mile" from the dam, but Joshua Collette continued downstream on the river at well over 60 mph and never slowed down or stopped to wait for Clausen. Joshua Collette drove his snowmobile past an orange buoy located upstream from the dam, over the dam, and into the open water. Joshua Collette drowned in the river before he could be rescued.

[¶ 5] Katie Collette, the surviving spouse of Joshua Collette, brought an action against Clausen for wrongful death and pain and suffering. Katie Collette contends Clausen was negligent in entrusting his snowmobile to Joshua Collette and in failing to warn Joshua Collette of the location and danger of the dam. The district court granted Clausen's motion for summary judgment, concluding Clausen was entitled to summary judgment because "[n]o duty existed between the two parties" and "[w]ithout a duty, there can be no negligence claim." Katie Collette appeals, asserting genuine issues of material fact exist concerning the issues of negligent entrustment and failure to warn.

II

[¶ 6] In Luallin v. Koehler, 2002 ND 80, ¶ 7, 644 N.W.2d 591, this Court said:

Summary judgment is a procedure for the prompt and expeditious disposition of a controversy without trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the result.

The party seeking summary judgment has the burden of showing that there is no genuine issue of material fact and that, under applicable principles of substantive law, the party is entitled to judgment as a matter of law. Skjervem v. Minot State Univ., 2003 ND 52, ¶ 4, 658 N.W.2d 750.

[¶ 7] We have outlined the duty of a party opposing a motion for summary judgment:

Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court's attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.

In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.

Anderson v. Meyer Broad. Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46 (quoting Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991)).

[¶ 8] "Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of his claim and on which he will bear the burden of proof at trial." Kimball v. Landeis, 2002 ND 162, ¶ 5, 652 N.W.2d 330 (citing Dahlberg v. Lutheran Soc. Servs., 2001 ND 73, ¶¶ 11, 42, 625 N.W.2d 241). When no pertinent evidence on an essential element is presented to the district court in resistance to a motion for summary judgment, it is presumed no such evidence exists. Id. (citing Van Valkenburg v. Paracelsus Healthcare Corp., 2000 ND 38, ¶ 27, 606 N.W.2d 908).

[¶ 9] Whether a district court properly granted summary judgment is a question of law which we review de novo on the entire record. Skjervem, at ¶ 7 (citing Wahl v. Country Mut. Ins. Co., 2002 ND 42, ¶ 6, 640 N.W.2d 689).

III

[¶ 10] Katie Collette argues the district court erred when it summarily dismissed with prejudice her negligence claim against Clausen.

[¶ 11] In a negligence case, a plaintiff must show "a duty on the part of an allegedly negligent person to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty." Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D.1996) (citations omitted). If the defendant has no duty, there is no actionable negligence. Id.

[¶ 12] Negligence actions are ordinarily not appropriate for summary judgment; however, whether a duty exists is generally a preliminary question of law for the court to decide. Hurt v. Freeland, 1999 ND 12, ¶ 9, 589 N.W.2d 551. "If the existence of a duty depends upon factual determinations, the facts must be determined by the fact finder. Issues of fact, however, may become issues of law for the court, if reasonable persons could reach only one conclusion from the facts." Id. (citations omitted).

[¶ 13] Katie Collette contends Clausen negligently entrusted Joshua Collette with a snowmobile which Clausen knew or had reason to know would be dangerous to operate because of Joshua Collette's inexperience. Katie Collette relies upon the Restatement (Second) of Torts to support her argument:

§ 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.

Restatement (Second) of Torts § 390 (1965). This Court has recognized a cause of action for negligent entrustment and has not only applied the doctrine of negligent entrustment to cases involving motor vehicles, but also "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." Barsness v. General Diesel & Equip. Co., Inc., 383 N.W.2d 840, 842 (N.D.1986).

[¶ 14] In this case, the undisputed evidence presented to the district court indicates Clausen owned and supplied the snowmobile which Joshua Collette was driving at the time of the accident. The significant issue is whether any evidence exists to establish whether Clausen knew or had reason to know Joshua Collette would likely use the snowmobile in a manner involving unreasonable risk of physical harm to himself or others. Although the party seeking summary judgment has the burden of showing there is no genuine issue of material fact, the party resisting the motion has the burden to present competent admissible evidence by affidavit or other comparable means which raises an...