Groleau v. Bjornson Oil Co., Inc.

Decision Date23 March 2004
Docket NumberNo. 20030171.,20030171.
Citation676 N.W.2d 763,2004 ND 55
PartiesBetty GROLEAU, Plaintiff and Appellant, v. BJORNSON OIL COMPANY, INC., a North Dakota corporation, and Amoco Oil Company, a Maryland corporation, Defendants and Appellees.
CourtNorth Dakota Supreme Court

Steven L. Latham, Wheeler Wolf, Bismarck, N.D., for plaintiff and appellant.

Joel A. Flom (argued) and James J. Ranheim (on brief), Jeffries, Olson & Flom, P.A., Moorhead, MN, for defendant and appellee Bjornson Oil Co.

Steven A. Storslee (argued) and Chris A. Edison (on brief), Storslee Law Firm, P.C., Bismarck, N.D., for defendant and appellee Amoco Oil Co., Inc.

KAPSNER, Justice.

[¶ 1] Betty Groleau appeals from a summary judgment dismissing her claims against Bjornson Oil Company ("Bjornson") and Amoco Oil Company ("Amoco"). We affirm the dismissal of Groleau's claims against Amoco but reverse the dismissal of her claims against Bjornson, concluding there are genuine issues of material fact precluding summary judgment in favor of Bjornson.

I

[¶ 2] On August 26, 1999, Groleau and her husband were traveling through Devils Lake, North Dakota, on vacation. At approximately 4:30 in the afternoon, they stopped to fill their pickup with gas at a gas station owned by Bjornson. There were three raised gas pump islands in front of the station, and the Groleaus stopped at the one farthest from the station. Groleau went inside the station to use the restroom and pay for the gas while her husband filled the pickup.

[¶ 3] When Groleau left the station, she walked back towards the pickup and tripped over the first gas pump island. Groleau claimed that the sun was directly in her eyes, she was wearing sunglasses, there were shadows camouflaging the edge of the island, and the black edge of the island "blended in" and looked level with the surrounding area. Groleau injured her left elbow and leg and was taken by ambulance to a Devils Lake hospital. She was subsequently transferred to a Minot hospital for surgery to her elbow.

[¶ 4] Groleau brought this premises liability action against Bjornson and Amoco, alleging negligence in failing to properly light the area, in painting the edge of the island black, and in failing to warn of a known hazard. Following discovery, Bjornson and Amoco moved for summary judgment, claiming the danger of the raised island was open and obvious and they therefore had no duty to warn. Amoco also argued it owed no duty to Groleau because it had no control over the premises. The district court concluded that Amoco had no control over the premises and that the condition of the gas pump island was open and obvious, and Bjornson and Amoco accordingly owed no duty to Groleau. Judgment was entered dismissing Groleau's claims, and she appealed.

II

[¶ 5] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or if resolving the factual disputes will not alter the result. Fish v. Dockter, 2003 ND 185, ¶ 7, 671 N.W.2d 819; Northern Plains Alliance, L.L.C. v. Mitzel, 2003 ND 91, ¶8, 663 N.W.2d 169. 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. Collette v. Clausen, 2003 ND 129, ¶ 6, 667 N.W.2d 617. In considering a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion, and that party must be given the benefit of all favorable inferences which can reasonably be drawn from the evidence. Skjervem v. Minot State Univ., 2003 ND 52, ¶ 4, 658 N.W.2d 750. Even undisputed facts do not justify summary judgment if reasonable differences of opinion exist as to the inferences to be drawn from those facts. Pierce v. B.P.O. of Elks Lodge No. 1214, 2004 ND 26, ¶ 8, 673 N.W.2d 914.

[¶ 6] Negligence actions are ordinarily inappropriate for summary judgment because they involve issues of fact. Iglehart v. Iglehart, 2003 ND 154, ¶ 11, 670 N.W.2d 343; Stanley v. Turtle Mountain Gas & Oil, Inc., 1997 ND 169, ¶ 8, 567 N.W.2d 345. 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. Grewal v. North Dakota Ass'n of Counties, 2003 ND 156, ¶9, 670 N.W.2d 336; Iglehart, at ¶ 11. To establish a cause of action for negligence, the plaintiff must show the defendant had a duty to protect the plaintiff from injury. Grewal, at ¶ 9. Whether a duty exists is generally a preliminary question of law for the court. Grewal, at ¶ 9; Iglehart, at ¶ 11. However, if the existence of a duty depends upon the resolution of factual issues, the facts must be resolved by the trier of fact. Grewal, at ¶ 9; Iglehart, at ¶ 11; Collette, 2003 ND 129, ¶ 12,667 N.W.2d 617. Issues of fact may become issues of law for the court if reasonable persons could reach only one conclusion from the facts. Collette, at ¶ 12; Hurt v. Freeland, 1999 ND 12, ¶ 9, 589 N.W.2d 551. When the existence of duty requires resolution of factual disputes, however, summary judgment is inappropriate and the proper procedure is for the court to instruct the jury as to the defendant's duty, or absence of duty, if certain facts are found. Butz v. Werner, 438 N.W.2d 509, 511 (N.D.1989); Barsness v. General Diesel & Equip. Co., 383 N.W.2d 840, 843 (N.D.1986); Restatement (Second) of Torts § 328B, Comment e (1965).

III

[¶ 7] Amoco contends that it had no control over the premises where Groleau's injury occurred and accordingly owed no duty to protect or warn Groleau.

[¶ 8] Resolution of this issue requires an examination of the contractual relationships involved. Amoco had a written contract with Gouldings, Inc., a North Dakota jobber, under which Amoco agreed to sell its products to Gouldings. In turn, Gouldings had an oral agreement with Bjornson to sell Amoco products to Bjornson for resale at Bjornson's gas station. Amoco had no contractual relationship with Bjornson.

[¶ 9] As part of Amoco's contract with Gouldings, retail stations which purchased Amoco products from Gouldings were permitted to use Amoco trade identities if Amoco gave prior written consent. The parties have designated such stations permitted to use Amoco marks as "branded" stations. Under the terms of the Amoco/Gouldings contract, the approval to use Amoco's trade identities was solely within Amoco's discretion and would be based upon various factors:

6. Site Approval.
(a) Use of Company's Trade Identities at each Approved Retail Site. It is and will be an on-going condition of the right to use Company's Trade Identities under this Contract, that Jobber must first obtain Company's prior written consent for each and every location that Jobber desires to identify with Company's Trade Identities, including all Jobber Marketer retail locations. The approval and designation as an Approved Retail Site will be within Company's sole discretion and will be based on certain factors and upon certain criteria relative to the site, including but not limited to: current or proposed appearance; current or proposed Trade Identities to be used; location of underlying real estate; ownership status of underlying real estate; current or proposed mode of operation; current or proposed offer; current or projected volume; current or proposed hours of operation; current or proposed training capabilities; current or proposed improvements, facilities or equipment; enrollment or participation in the Company's "mystery" shop program; Company's then current image programs and standards (both operational and visual), as amended; or Company's then current or amended retail marketing strategies and development plans in the vicinity of the proposed location, or elsewhere.

Amoco retained the right to revoke its approval of a previously approved site for various reasons, but the contract expressly provided that Gouldings had the right to supply Amoco products to retail stations whose approval had been revoked or which had not been approved as a "branded" station.

[¶ 10] One of the factors Amoco could consider in determining whether to approve a retail site as a "branded" station was Amoco's visual image programs and standards. Amoco's approved color scheme and specifications directed that the base of elevated gas pump islands be painted black if the island had a steel curb form. The base of the island which Groleau tripped over was painted black as recommended in Amoco's specifications.

[¶ 11] Under premises liability law, a defendant must have had control over the property where the injury occurred in order to find the defendant owed a duty to an injured party. Doan v. City of Bismarck, 2001 ND 152, ¶ 13, 632 N.W.2d 815; Stanley v. Turtle Mountain Gas & Oil, Inc., 1997 ND 169, ¶ 9, 567 N.W.2d 345. Control is an essential prerequisite for imposition of premises liability. Doan, at ¶ 13; Stanley, at ¶ 9. Before a defendant owes a duty of care, it must be demonstrated the defendant had control of the premises and an opportunity to observe any duty. Stanley, at ¶ 9.

[¶ 12] Groleau argues Amoco had control over the premises through its contract with Gouldings and was negligent in determining the base of the island should be painted black rather than a brighter, more visible color. The evidence presented in opposition to the motion for summary judgment, however, simply does not demonstrate any right by Amoco to control the premises. At most, the evidence shows Amoco reserved the right to approve use of its trade identities, and conformity to Amoco's approved color scheme was one factor in that decision. There is no...

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