Cudworth v. Midcontinent Communications
| Decision Date | 23 August 2004 |
| Docket Number | No. 03-2187.,03-2187. |
| Citation | 380 F.3d 375 |
| Parties | Irene CUDWORTH; Randy Cudworth, Appellants, v. MIDCONTINENT COMMUNICATIONS; Midcontinent Communications Investor, LLC; Midco Communications, Inc.; Midcontinent Media, Inc.; Midco of South Dakota, Inc., Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Appeal from the United States District Court for the North Dakota, Rodney S. Webb, J.
COPYRIGHT MATERIAL OMITTED
Steven A. Storslee, argued, Bismarck, North Dakota (Larry B. Leventhal, Minneapolis, Minnesota on the brief), for appellant.
Richard N. Jeffries, argued, Fargo, North Dakota, for appellee.
Before WOLLMAN, HANSEN, and COLLOTON, Circuit Judges.
Randy Cudworth was pulled from his snowmobile and rendered a quadriplegic when he collided with a rope barrier strung across property owned by the appellees, whom we will refer to collectively as "Midcontinent." In the ensuing lawsuit by Cudworth and his wife, the district court1 granted summary judgment in Midcontinent's favor, concluding that North Dakota's recreational use immunity statute absolved Midcontinent of liability and that the Cudworths' remaining claims failed as a matter of law. The Cudworths appeal. We affirm.
The Midcontinent property where Cudworth was injured is a largely open, six-acre field located directly north of Langdon, North Dakota, and south of a state-groomed snowmobile trail.2 Two residential streets, 15th and 16th, run north from Langdon toward the property. 15th Street borders the property to the west and 16th street terminates at its southern boundary. A dirt path (the "prairie road") connects the end of 16th street with 15th street. Although the prairie road is located on Midcontinent's land, Langdon residents and the City itself have used it for many years. In addition, residents have used Midcontinent's field as a site on which to operate their all-terrain vehicles during the summer months and as an access route to established snowmobile trails during the winter months.
In the summer of 2000, Midcontinent became upset because garbage was being dumped on the prairie road and because traffic across the road, including that by City-owned vehicles, was causing ruts. To remedy the situation, the City hauled in dirt, graded the ruts, and seeded portions of the area with grass. Midcontinent employee Jerry Reiser then erected barriers at each end of the prairie road. The eastern barrier, the point at which Cudworth was injured, consisted of 200 feet of quarter-inch diameter yellow nylon rope tied between metal stakes and wooden cable spools, each of which was affixed with a "keep out," "private property," or "no trespassing" sign. The rope originated on the southwest corner of 16th street, ran northeast across the end of the prairie road, and east beyond the end of 16th street into Midcontinent's field. Reiser, who knew that snowmobilers used the property during winter, erected the barrier to prevent damage to the newly seeded grass, but the barrier remained even after snow had started falling.
On February 23, 2001, Cudworth drove up 16th street on his snowmobile towards Midcontinent's field, destined for the trails to the north. He had not used a snowmobile in the area before and was unaware of the barrier, which was by now partially obscured in a bank of plowed snow at the end of 16th street. Although the other persons in Cudworth's snowmobiling party observed the barrier and avoided it, Cudworth did not see the rope and collided with it as he rounded the east side of the snowbank.
We review the district court's grant of summary judgment de novo, applying the same standard as did the district court. See Dennen v. City of Duluth, 350 F.3d 786 (8th Cir.2003) (citation omitted). North Dakota law controls, and to the extent we confront questions that North Dakota's courts have not yet answered, we endeavor to predict the course of the State's highest court. Pennsylvania Nat. Mut. Cas. Ins. Co. v. City of Pine Bluff, 354 F.3d 945, 952 (8th Cir.2004) (predicting Arkansas law).
The relevant portions of North Dakota's Recreational Use Immunity statute, N.D. Cent.Code § 53-08-01 et seq., are as follows:
53-08-02. Duty of care of landowner. Subject to the provisions of section 53-08-05, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.
53-08-03. Not invitee or licensee of landowner. Subject to the provisions of section 53-08-05, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:
1. Extend any assurance that the premises are safe for any purpose;
2. Confer upon such persons the legal status of an invitee or licensee to whom a duty of care is owed; or
3. Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons.
53-08-04. Leased land to state or political subdivisions. Unless otherwise agreed in writing, an owner of land leased to the state or its political subdivisions for recreational purposes owes no duty of care to keep that land safe for entry or use by others or to give warning to persons entering or going upon such land of any hazardous conditions, uses, structures, or activities thereon. An owner who leases land to the state or its political subdivisions for recreational purposes does not by giving such lease:
1. Extend any assurance to any person using the land that the premises are safe for any purpose;
2. Confer upon such persons the legal status of an invitee or licensee to whom a duty of care is owed; or
3. Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of a person who enters upon the leased land.
The provisions of this section apply whether the person entering upon the leased land is an invitee, licensee, trespasser, or otherwise.
53-08-05. Failure to warn against dangerous conditions — Charge to enter. Nothing in this chapter limits in any way any liability which otherwise exists for:
1. Willful and malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or
2. Injury suffered in any case when the owner of land charges the person or persons who enter or go on the land other than the amount, if any, paid to the owner of the land by the state.
The Cudworths first argue that the recreational use immunity statute does not apply because a prerequisite to statutory immunity is the landowner's "opening" of property for public recreational use, something which the Cudworths contend Midcontinent did not do when it roped off and posted the prairie road. State courts interpreting similar legislation are divided over this question,3 but the district court ultimately rejected "permissive use" as a statutory prerequisite to immunity in North Dakota.
As in other states, the acknowledged purpose of North Dakota's recreational use immunity statute is to encourage landowners to open land for recreational use by the public. See Hovland v. City of Grand Forks, 563 N.W.2d 384, 385 (N.D.1997); Olson v. Bismarck Parks & Rec. Dist., 642 N.W.2d 864, 870 (N.D.2002). The statute does not, however, explicitly require that landowners open property to public use before receiving immunity, nor does it specify that immunity applies only where entrants are invitees or licensees.4 Cf. Olson, 642 N.W.2d at 870 (). Section 53-08-02 plainly states that landowners owe no duty to recreational users of land, and subsequent provisions, particularly sections 53-08-03 and 53-08-04, clarify immunity in those circumstances in which permitting recreational use might have otherwise created a duty at common law. We conclude that the most logical reading of the statute is to "view [the first provision] as a general grant of immunity and [the later provisions] as an extension of immunity to cover the special circumstances long recognized in the case law." Gallo v. Yamaha Motor Corp., 363 Pa.Super. 308, 526 A.2d 359, 363 (1987) ( similar Pennsylvania language).
We cannot credit the Cudworths' argument regarding statutory purpose because it requires that we either ignore section 53-08-02 as redundant (because section 53-08-03 immunizes landowners who "invite" or "permit" recreational use of their land), or give a restrictive reading to section 53-08-02, neither of which we are at liberty to do. Douville v. Pembina County Water Res. Dist., 612 N.W.2d 270, 274 (N.D.2000) (). Furthermore, we do not believe adherence to the letter of the statute necessarily undermines its spirit. The legislature could have reasonably concluded that immunity for all landowners nonetheless eliminates the primary obstacle to opening property for recreational use — fear of liability — and therefore encourages landowners to either keep property open for recreational purposes or to open property that was formerly off-limits. In light of the statute, landowners no longer have an incentive to exclude recreational users, a point which the North Dakota Supreme Court recently recognized when considering the statute's constitutionality: "It is logical for the Legislature to conclude that a limitation...
To continue reading
Request your trial
-
Martinez v. Ross
...is permitted, to watch migratory birds during the seasonal migrations, etc.11 Finally, Ross relies on Cudworth v. Midcontinent Communications , 380 F.3d 375, 379 (8th Cir. 2004), in which a federal court interpreted North Dakota’s version of the model act to mean that owners need not open t......
-
U.S. v. Handley
...legislative intent, statutory terms are given their plain, ordinary, and commonly understood meaning."); Cudworth v. Midcontinent Commc'n., 380 F.3d 375, 381 (8th Cir.2004) (same). Black's Law Dictionary defines the term "minor" as "[a]n infant or person who is under the age of legal compet......
-
Kappenman v. Klipfel
...the Eighth Circuit Court of Appeals interpreting North Dakota's recreational use immunity statutes in Umpleby and Cudworth v. Midcontinent Comm., 380 F.3d 375 (8th Cir. 2004), we find those decisions [¶ 30] We conclude the district court erred in granting summary judgment dismissing this ac......
-
Nelson v. United States
...Recreational Use Act).50. There appears to be a split of authority in other states as to this issue. See Cudworth v. Midcontinent Commc'ns, 380 F.3d 375, 379 and n. 3 (8th Cir.2004) (citing cases); Coursey, 790 S.W.2d at 230. I find persuasive the Kentucky Supreme Court's analysis of the is......