Doan ex rel. Doan v. City of Bismarck

• Decision Date: 29 August 2001
• Docket Number: No. 20010042.,20010042.
• Citation: 2001 ND 152,632 N.W.2d 815
• Parties: Renae DOAN and Jerry DOAN, Individually and as parents and next friends of Jayce Doan, a minor child, Plaintiffs and Appellants, v. CITY OF BISMARCK, Damian Dionne, Defendants and Appellees. Kevin Blake and Jan Gustin, Defendants.
• Court: North Dakota Supreme Court

632 N.W.2d 815

2001 ND 152

Renae DOAN and Jerry DOAN, Individually and as parents and next friends of Jayce Doan, a minor child, Plaintiffs and Appellants, v. CITY OF BISMARCK, Damian Dionne, Defendants and Appellees.

Kevin Blake and Jan Gustin, Defendants.

No. 20010042.

Supreme Court of North Dakota.

August 29, 2001.

Calvin N. Rolfson (argued) and Brian L. Bergeson (appeared), Rolfson Schulz Lervick & Geiermann Law Offices, P.C., Bismarck, ND, for plaintiffs and appellants.

Randall J. Bakke (argued) and Michael J. Hagburg (on brief), Smith Bakke Hovland & Oppegard, Bismarck, ND, for defendant and appellee City of Bismarck.

Curtis L. Wike (argued) and Julie M. Buechler (on brief), Fleck, Mather & Strutz, Bismarck, ND, for defendant and appellee Damian Dionne.

KAPSNER, Justice.

[¶ 1] Renae and Jerry Doan, individually and as parents of Jayce Doan, (collectively, the "Doans") appeal from the district court's grant of summary judgment in favor of the City of Bismarck ("City") and Damian Dionne. Because genuine issues of material fact exist which preclude an award of summary judgment, we reverse and remand.

I

[¶ 2] On February 12, 1995, the Doans and their three children, Shanda, Jay, and Jayce, attended the Agri International Stock Show ("Agri Show") at the Bismarck Civic Center, which is owned and operated by the City. Shanda and Jay participated in the Junior Show and Fitting Contest ("Junior Show"), advertised as part of the Agri Show and open to the public. When Renae and two-year-old Jayce were standing in a public walkway between the cattle stalls and washbay, visiting with Shanda and Jay, an 850-pound heifer cow "spooked" while Kevin Blake led the heifer from the washbay to its stall with a rope. Blake let go of the rope, believing he could no longer control the animal. The heifer, owned by Dionne, reared up and twice trampled Renae and Jayce who suffered injuries.

[¶ 3] The Doans filed a negligence claim against the City, Dionne, Blake, and Sutton Rodeos, Inc. ("Sutton"), alleging the Agri Show was sponsored by the City and Sutton. The district court dismissed Sutton, based on a stipulation between Sutton and the Doans. The Doans moved to amend their complaint to remove all claims against Sutton and to add Gustin as a party. The district court granted this motion.

[¶ 4] The City moved for summary judgment, asserting (1) the City had no duty of care to the Doans because it did not exercise control over the area where the Doans were injured and because the City delegated its responsibility to an independent contractor, Jan Gustin; (2) the City was not negligent; (3) the Doans assumed the risk of their injuries; and (4) the City was protected by discretionary immunity from any liability to the Doans. Dionne and Blake joined the City's motion for summary judgment, arguing the Doans assumed the risk of their injuries because the heifer presented an open and obvious danger.

[¶ 5] The district court awarded summary judgment in favor of the City and Dionne, but denied summary judgment in favor of Blake. The district court determined the City's actions were not protected by discretionary immunity but, nevertheless, the City did not owe a duty of care to the Doans because it did not control the premises at the time of the injuries and because the City had delegated any responsibility to an independent contractor, Gustin. The district court also concluded Dionne owed no duty to the Doans; however, genuine issues of material fact existed which precluded summary judgment in favor of Blake.

[¶ 6] Subsequently, the Doans settled their claims against Blake and Gustin, who were then dismissed by the district court. The Doans appeal.

II

[¶ 7] We review this appeal under our standards for summary judgment which promptly resolves a controversy on the merits, without a trial, if the evidence demonstrates no genuine issue exists as to any material fact or inferences to be drawn from undisputed material facts and if the evidence shows a party is entitled to judgment as a matter of law. N.D.R.Civ.P. 56(c); Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357. Issues of fact may become issues of law if reasonable persons could reach only one conclusion from the facts. Fetch, at ¶ 8. Even undisputed facts do not justify summary judgment if reasonable differences of opinion exist as to the inferences to be drawn from those facts. Helbling v. Helbling, 267 N.W.2d 559, 561 (N.D.1978).

[¶ 8] Whether a trial judge properly granted summary judgment is a question of law which we review de novo on the entire record. Fetch, 2001 ND 48, ¶ 8,623 N.W.2d 357. The party seeking summary judgment bears the initial burden of showing there is no genuine dispute regarding a material fact. Id. at ¶ 9. We view the evidence in the light most favorable to the party opposing the motion, to whom we give the benefit of all favorable inferences which reasonably can be drawn from the evidence. Id. at ¶ 8. The opposing party may not simply rely on unsupported and conclusory allegations or denials in the pleadings, but must set forth specific facts showing there is a genuine issue for trial. N.D.R.Civ.P. 56(e); Fetch, at ¶ 9.

[¶ 9] We have often held that summary judgment rarely should be granted in negligence cases. Helbling, 267 N.W.2d at 561. By their very nature, negligence claims are usually poor subjects for summary judgment. Latendresse v. Latendresse, 294 N.W.2d 742, 748 (N.D.1980); accord McDowell v. Gillie, 2001 ND 91, ¶ 21, 626 N.W.2d 666

(stating issues involving reasonableness standards generally are inappropriate for disposition by summary judgment).

III

[¶ 10] The Doans argue the trial court erred in granting summary judgment in favor of the City as to the negligence claim after finding the City owed no duty to the Doans. Rather, the Doans assert the facts and inferences to be drawn raise genuine material issues regarding the City's duty of care based on the City's control of the Agri Show and the Civic Center premises on the date of Doans' injury, as well as the City's control over Gustin's work as the coordinator of the Agri Show. We agree.

A

[¶ 11] The Doans contend the trial court erred in concluding the City owed them no duty based on the court's ruling the Doans failed to provide credible evidence the City controlled the premises on the date of Doans' injury. The City claimed it turned over control of the Civic Center at the time of the accident to Gustin and the sponsors of the Junior Show.

[¶ 12] To establish an actionable negligence claim, a plaintiff must show a duty exists by the defendant to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty. Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 12, 623 N.W.2d 382. Whether a defendant owes a plaintiff a duty is generally a preliminary question of law for the court to decide; however, if the existence of a duty of care depends on resolving factual issues, then the facts must be resolved by the trier of fact. Pechtl v. Conoco, Inc., 1997 ND 161, ¶ 7, 567 N.W.2d 813.

[¶ 13] Under premises liability law, a property owner must have had control over the property where an injury occurred in order to find the owner owed a duty to an injured party. Stanley v. Turtle Mountain Gas & Oil, Inc., 1997 ND 169, ¶ 9, 567 N.W.2d 345. Thus, control is an essential prerequisite for imposition of premises liability. Id. at ¶ 10. 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. Sternberger v. City of Williston, 556 N.W.2d 288, 290 (N.D.1996). The occupier of premises has a right to use the property and to develop it for profit and enjoyment; however, when the occupier conducts dangerous activities or permits dangerous instruments and conditions to exist on premises, the occupier must take reasonable measures to prevent injury to those whose presence on the property reasonably can be foreseen. O'Leary v. Coenen, 251 N.W.2d 746, 752 (N.D.1977).

[¶ 14] There is evidence in the record that the City owns the Civic Center and does business in the name of the Civic Center. Richard Petersen, who was the marketing director for the Civic Center on the date of the accident and who later became general manager of the Civic Center, testified the Civic Center building was designed in part to facilitate the showing of livestock. Petersen indicated the Agri Show was "owned by and managed by" the Civic Center and the City in 1995, the City applied for a trademark for the name of the Agri Show, and the general manager of the Civic Center determined which animals were allowed into the Civic Center. Paul Johnson was manager of the Civic Center at the time of the accident, and the general manager has duties of overseeing the operations of the Civic Center and daily operation of the building. The record includes evidence the City received both rent and revenue from the Agri Show receipts.

[¶ 15] Advertising for the Agri Show included the Junior Show as an event running concurrently with the Agri Show. Income and expense sheets for the Agri Show included items for the Junior Show, and Gustin acknowledged the Junior Show was part of the Agri Show. The judges for the Junior Show were paid staff of the Agri Show. Although the Doans' injuries occurred after the conclusion of the Junior Show, the heifer cow that trampled the Doans was not part of the Junior Show but part of the Agri Show.

[¶ 16] Viewing the evidence in favor of the Doans, there are triable issues of fact concerning the City's control of the Civic Center, Agri Show, and Junior Show. See Stanley, 1997 ND 169, ¶ 10,

567 N.W.2d 345 (discussing the centrality of "control" of the property in our premises liability law). From these unresolved factual questions,...