Green v. Mid Dakota Clinic, 20030264

• Citation: 2004 ND 12,673 NW 2d 257
• Decision Date: 14 January 2004
• Docket Number: No. 20030264,20030264
• Parties: Tracy Paul Green, Plaintiff and Appellant v. Mid Dakota Clinic, Defendant and Appellee.
• Court: North Dakota Supreme Court

2004 ND 12

673 NW 2d 257

Tracy Paul Green, Plaintiff and Appellant v. Mid Dakota Clinic, Defendant and Appellee.

No. 20030264

Supreme Court of North Dakota.

Filed January 14, 2004

Kent M. Morrow, Severin, Ringsak & Morrow, P.O. Box 2155, Bismarck, N.D. 58502-2155, for plaintiff and appellant.

Michael C. Waller, Fleck, Mather & Strutz, P.O. Box 2798, Bismarck, N.D. 58502-2798, for defendant and appellee.

Opinion of the Court by VandeWalle, Chief Justice.

VandeWalle, Chief Justice.

[¶1] Tracy Paul Green appealed from a summary judgment dismissing his action for damages against Mid Dakota Clinic ("Clinic"), alleging it negligently allowed ice to accumulate on its sidewalk, resulting in Green sustaining injuries when he slipped and fell while attempting to transfer from a wheelchair into his car. We hold the trial court incorrectly applied the law of assumption of risk in dismissing the claim and we, therefore, reverse and remand for further proceedings.

I

[¶2] On March 12, 1999, a friend drove Green to the Clinic for treatment of severe back pain. Green was taken by wheelchair to the basement of the Clinic for x-rays, and when the procedure was completed Green's friend took him by wheelchair to the outdoor sidewalk area of the Clinic under an overhanging canopy. The friend left Green sitting in the wheelchair unattended while she went into the Clinic to find someone to assist her in lifting Green into the car. While she was gone, Green attempted to transfer himself from the wheelchair to the car. While doing so, he slipped, landed on the ground, and sustained injuries.

[¶3] Green sued the Clinic, alleging it negligently maintained its sidewalk area by leaving sand-covered ice on it, which Green failed to notice when he was attempting to get into the car until he slipped on it and fell to the ground. The Clinic filed a motion for summary judgment, asserting Green's injuries were the result of his own negligence. For purposes of this motion, the Clinic conceded Green's allegation that there was sand-covered ice on the sidewalk. However, it asserts it was not negligent in maintaining the sidewalk, because it took reasonable steps to keep the area free from snow and ice and it heated the driveway area and sidewalk under the canopy throughout the winter months so that snow and ice would not accumulate there.

[¶4] In granting the Clinic's motion to dismiss the claim, the trial court stated:

The evidence before the Court establishes that the area of the incident was under a covered canopy, which is equipped with underground heating to prevent snow and ice accumulation.

Granting to [Green] every reasonable inference that a small accumulation of "black ice" did exist, [Green] was knowledgeable of the area, and more specifically, [his] need for physical assistance to transfer from a wheelchair to a motor vehicle. [Green's] impatience in refusing to wait for the [Clinic's] staff to facilitate that transfer, was an assumption by [Green] of the risk of fall in attempting the same.

IT IS THEREFOR THE DETERMINATION OF THIS COURT that reasonable people could come to but one conclusion, that [Green] knowingly assumed the risk of fall when attempting to transfer from a wheelchair to a motor vehicle without assistance.

IT IS THEREFOR THE ORDER OF THE COURT that the [Clinic's] motion for summary judgment of dismissal with prejudice of the foregoing litigation is herewith granted.

On appeal from the summary judgment dismissing his claim, Green asserts the trial court committed reversible error in concluding that reasonable people could come to but one conclusion that he knowingly assumed the risk of falling when he attempted to transfer himself from the wheelchair to the car.

II

[¶5] We review this appeal in the posture of summary judgment, which is a procedural device under N.D.R.Civ.P. 56 for prompt and expeditious disposition of a controversy without a 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 disputed facts would not alter the result. Dahlberg v. Lutheran Soc. Servs. of N.D., 2001 ND 73, ¶ 11, 625 N.W.2d 241. On appeal, we review the evidence in the light most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which reasonably can be drawn from the evidence. Id. The party moving for summary judgment bears the burden of establishing there is no genuine issue of material fact and that, under applicable principles of substantive law, he is entitled to judgment as a matter of law. Skjervem v. Minot State Univ., 2003 ND 52, ¶ 4, 658 N.W.2d 750. Whether the trial court properly granted summary judgment is a question of law which we review de novo on the entire record. Id. at ¶ 7.

[¶6] Negligence and proximate cause are fact questions unless the evidence is such that reasonable minds can draw but one conclusion. Larson v. Kubisiak, 1997 ND 22, ¶ 7, 558 N.W.2d 852. Negligence cases are now governed by the doctrine of comparative fault. N.D.C.C. ch. 32-03.2....